Constitutionality of SB 10 Upheld
- William Fulton
- Apr 8, 2024
- 4 min read
Updated: Jan 6
The provision in SB 10 allowing local elected officials to override zoning provisions adopted by local voters is constitutional because the local electeds are “cloaked in the mantle of the state” when they choose to implement SB 10, an appellate court panel has ruled. Along the way, the panel struck a blow in favor of the market, saying that California’s housing crisis is the result of a lack of supply and the state is the “logical” entity to try to fix the problem, rather than local governments. SB 10, adopted by the Legislature in 2021, permits local governments to allow up to 10 units on a single parcel of land without going through an environmental review under the California Environmental Quality Act. The law isn’t mandatory; local governments must implement it with an ordinance for it to take effect. It hasn’t been widely used (see previous CP&DR coverage here), but it did draw an almost immediate lawsuit from the AIDS Healthcare Foundation and the City of Redondo Beach, which zeroed in on SB 10’s provisions that allow local officials to override density caps adopted by the voters. The foundation and Redondo Beach argued that the provision is unconstitutional because, under California’s system of initiative and referendum enshrined in the state constitution, voters prevail over their legislators. Redondo Beach passed a "subsequent voter requirement" for major land use changes in 2008, which has led to several ballot measures and litigation over the now-shuttered AES power plant near the beach. In 2022, a Los Angeles judge ruled against the plaintiffs (see CP&DR coverage of that ruling here) and a unanimous three-judge panel of the Second District Court of Appeal has now affirmed the ruling, saying the SB 10 provision is constitutional. “We so conclude,” wrote Justice Brian Hoffstadt, “because the housing shortage is a matter of statewide concern, because Senate Bill 10 conflicts with (and hence preempts) local initiatives that make housing density caps mandatory, and because Senate Bill 10’s more narrowly tailored mechanism of cloaking counties and cities in the mantle of state preemptive authority so that they may decide whether to supersede a local density cap on a parcel-by-parcel basis—rather than effecting a wholesale invalidation of all local density caps in every county and city—is not constitutionally problematic.” In reaching the conclusion, the three-judge panel noted that while land use issues have been “‘historically’” and “traditionally” a function of local governments in California, “the sub-issue of ensuring affordable housing has been a matter of statewide concern for nearly six decades.” But using a traditional supply-and-demand argument, the court also found a factual basis for state override of local powers in the land use arena. “Under basic economic principles, prices go up when demand exceeds supply,” Hoffstadt wrote. “Thus, the rise in housing prices at every income level in California is logically linked to the insufficient supply of housing at all of those income levels. What is more, the task of ensuring a great supply of housing is one that is logically handled at the state level. That is because local governments are susceptible to ‘not in my backyard’ (or NIMBY) pressure.” Critical to the court’s ruling was its conclusion that local elected officials, when they adopt an SB 10 enabling ordinance, are not acting as local officials but rather as agents of the state government. The AIDS Healthcare Foundation and Redondo Beach made a series of arguments about the constitutionality of the SB 10 provision, including the argument that pre-emption is unnecessary because local voters can be asked to lift existing density caps and therefore there is no conflict between those caps and SB 10. But the court wrote: “Local housing density caps conflict with and are inimical to Senate Bill 10.” (In an apparent error, the court actually wrote “housing destiny caps”.) The court added that the plaintiffs’ argument “utterly ignores that a main reason our Legislature enacted Senate Bill 10 is because local electorates were blocking attempts to increase housing density.” The plaintiffs also argued that the legislative intent to override local caps was not strong enough in SB 10 but the court disagreed. Referring to the Government Code section amended to accommopdate SB 10, the court wrote: “Section 65913.5 explicitly grants local legislative bodies the power to “adopt an ordinance to zone a parcel for up to 10 units of residential density per parcel” “otwithstanding any local restrictions . . . including . . . restrictions enacted by local initiative.” (§ 65915.3, subd. (a)(1), italics added.) Indeed, section 65913.5 even goes so far as to erect a separate and higher procedural requirement for superseding an initiative-based housing density cap than for superseding a legislatively enacted cap—namely, a two-thirds vote rather than a simple majority. (Id., subd. (b)(4).)” Critical to the court’s ruling was its conclusion that, in adopting an SB 10 enabling ordinance, local elected officials are not acting in their local capacity – which would be overridden by the voters – but as agents of the state. The plaintiffs had argued that the way SB 10 was written – not by taking all initiative power away from the voters and giving it to elected officials, but rather, by creating a narrow exception – effectively pits the local elected officials against their own voters. “This argument ignores that the local legislative body in this instance is wearing the mantle of state preemptive power, and hence it is not pitting “local” against “local” but rather “state” against “local”—and the Constitution dictates that the state should prevail in that battle,” the court wrote. The Case: AIDS Healthcare Foundation v. Bonta, No. B321875 (filed March 28, 2024) The Lawyers: For AIDS Healthcare Foundation and City of Redondo Beach: Michael Webb, Redondo Beach City Attorney, michael.webb@redondo.org, and Beverly Grossman Palmer, Strumwasser & Woocher, bpalmer@strumwooch.com. For State of California: , Benjamin M. Glickman, Benjamin.Glickman@doj.ca.gov, and Seth E. Goldstein, seth.goldstein@doj.ca.gov, Deputy Attorneys General.