The Marin Post

The Voice of the Community

Blog Post

California Cities and Counties need to support the constitutional challenge to SB35

As recently reported, the city of Huntington Beach, has filed a lawsuit against the State of California, seeking to overturn SB35, a law that went into effect in 2018 that streamlines processes for building new housing developments. Huntington Beach’s lawsuit contends that our State Constitution grants charter cities exclusive authority over local land use and zoning.

Regardless of the merits of the specific case being brought by Huntington Beach, which is a counter-suit to a petition filed by the State a week earlier, the sanctity of our political process and the Constitutional rights of California cities and counties are things that are important to us all. The potential, unintended, negative, socioeconomic consequences of not standing up for those Constitutional rights, is almost unlimited.

California progressives are the first to express outrage when the Trump Administration tramples on our U.S. Constitution, and very rightfully so. Yet, those same people and “stakeholder” groups seem perfectly fine doing the very same thing to our California State Constitution, which makes it abundantly clear that locally elected governments have final authority over municipal affairs.

Community Venture Partners supports the position taken by Huntington Beach, regardless of differences of opinion about their specific compliance or noncompliance with State Housing Law. What is at stake is far more important than RHNA quotas and whether or not any one city has sufficient affordable housing development.

It is therefore essential that all California cities and counties consider filing amicus curiae briefs in the Court, in support of the Huntington Beach argument in order to defend their Constitutional rights to control local land use and zoning. And there is another Constitutional question that also needs to be challenged.

In December of 2017, CVP published an article analyzing the slew of new housing legislation signed by then Governor Brown, which included SB35. In that piece, we argued that the new housing laws violated the State Constitutional requirement for financial reimbursement from the State for any and all local costs of such legislation.

What was stated then bears repeating and may now be more relevant than ever. A portion of that investigative piece, stated the following:

CVP questions the constitutionality of this new legislation with regard to unfunded mandates

The California State Constitution notes a very short list of instances, when the state can impose unfunded mandates on local government.

Under Article XIII. B. Government Spending Limitation [Sec. 1 – Sec. 14] Sec. 6(a): (click here to read original text)

(a) Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service, except that the Legislature may, but need not, provide a subvention of funds for the following mandates:

(1) Legislative mandates requested by the local agency affected.

(2) Legislation defining a new crime or changing an existing definition of a crime.

(3) Legislative mandates enacted prior to January 1, 1975, or executive orders or regulations initially implementing legislation enacted prior to January 1, 1975.

(4) Legislative mandates contained in statutes within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I.

And under Sec. 6(c) it clarifies that:

(c) A mandated new program or higher level of service includes a transfer by the Legislature from the State to cities and counties, or special districts of complete or partial financial responsibility for a required program for which the State previously had complete or partial financial responsibility.

There is nothing unclear about the California State Constitution’s intent. There is nothing in the language that suggests the state legislature can continue to pass regulations that pile endless direct and indirect financial obligations onto the shoulders of local government (i.e., its residents and taxpayers), without compensation: despite the legislature’s habit of adding disclaimers at the end of each piece of new legislation that reimbursements of direct and indirect costs are not required.

The State’s over-reach must be challenged.

There is little question that the State is over-reaching its authority on both of these State Constitutional issues, and they are doing it in a way that is intentionally designed to circumvent our sanctified public, democratic process.

If the Governor or the State Legislature wish to continue to pursue these types of wholesale changes to the fundamental powers and rights of duly elected local governments, then they need to proceed to do that in a legal manner.That would include proposing an amendment to the State’s Constitution and a vote in a general election as follows:

Two-thirds of the membership of each chamber of the California State Legislature must propose an amendment, which then goes on a statewide ballot to be ratified or rejected by the state's voters.