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Are newly proposed state housing laws constitutional? Counterpoint arguments

On the 26th, I posted the article, Are newly proposed housing laws constitutional? This article presented the views of retired Orinda attorney Nicholas Waranoff.

In the interest of hearing both sides, we asked a second attorney -- someone we know to be equally qualified in this matter -- to comment on the allegations made by Waranoff's letter. The results are revealing.

I sought out this second opinion not because I don't wish that Mr Waranoff's positions were iron-clad -- quite the contrary -- but because I'm used to being disappointed by how the law really works and how few real protections regular people really have. So, I don't like kidding myself about its efficacy.

What the opinion below reveals is that laws and the case law on these issues are intricate and prone to a wide variety of interpretations -- even by those who agree in the fundamental principles -- and so those interpretations will be heavily influenced by politics and political fashion. Therefore, California residents can't always rely solely on legal arguments to push back on the onerous nature of what politicians in Sacramento are presently brewing up for us.

No, only dedicated civil engagement by everyone will bring reason and fairness to our legislative process.

The counterpoint comments are as follows:


The letters make four arguments:

1. AB 1487 violates Article IV, Section 16 (b) of the California Constitution

Article IV, Section 16 (b) states that “a local or special statute is invalid in any case if a general statute can be made applicable.”

The argument is, this is as a special statute because it only applies to the Bay Area. Section 2 of the law defends the choice of the special statute, stating:

“The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the uniquely severe shortage of available funding and resources for the development and preservation of affordable housing and the particularly acute nature of the housing crisis within the nine counties of the San Francisco Bay area region.”

The claim is, this is not adequate grounds for a special law because there is no rational reason for singling out the SF Bay Area for this bill. The problem with this claim is that case law establishes a very deferential standard of review:

In determining whether "a general statute can be made applicable," the issue is not whether the Legislature could conceivably enact a similar statute affecting every locality. ....Rather, it is whether "there is a rational relationship between the purpose of the enactment . . . and the singling out of [a single] . . . county affected by the statute." ...The Legislature's determination that this rational relationship exists is entitled to great weight and will not be reversed unless the determination is arbitrary and without any conceivable factual or legal basis...” (Emphasis added)

White v. Cal. (2001) 88 Cal. App. 4th 298, 304. Under White v. Cal., the issue is not whether the Legislature could conceivably enact a similar statute affecting every locality, it’s about whether there is any basis for enacting a special statute. Here, it is unlikely that there is no conceivable factual or legal basis for having a special statute dealing with housing in the Bay Area.

2. AB 1487 violates Article XI, section 11, of the California Constitution

This claim is that AB 1487 violates Article XI, section 11, subdivision (a), of the California Constitution, which provides,

“The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.” (Emphasis added.)

The letter cites Howard Jarvis Taxpayers’ Assn v. Fresno Metropolitan Projects Authority (1995) 40 Cal. App. 4th 1359 as a case where Section 11 was violated. In Howard Jarvis Taxpayers’, the bill authorized the Fresno Metropolitan Projects Authority to impose, levy and collect a tax after submitting the proposed tax to the voters.

Howard Jarvis Taxpayers’ held that the fact that the tax was submitted to the voters did not prevent the bill from violating Section 11, as the Authority still maintained authority over how to collect and distribute the taxes, despite the voters’ approval:

The voters will have no say in the matter of fund distribution for the next 20 years short of repeal of the entire tax.This appears to us to be precisely the type of situation the framers sought to avoid by prohibiting the delegation to a private body of the power to tax..... In the present case.... Government Code section 68059.7 states that the Authority "may" impose a transaction and use tax, subject to the approval of a majority vote of the voters.

Furthermore, even if the Authority imposes such a tax, subdivision (c) of the statute authorizes the Authority to terminate the tax upon a majority vote of the Authority's board of directors. The Authority appears to contend that Minsinger and Moore hold that the power to tax has not been delegated when the appointed body is directed by the legislature to levy a tax and when the legislature determines, to a degree of reasonable certainty, the amount of that tax. Assuming that the Authority correctly reads Minsinger and Moore, the first part of that test is still not satisfied in the present case.

Howard Jarvis Taxpayers’ Assn, supra, 40 Cal. App. 4th at 1381-1383.

The question on this claim is whether the taxing authorities in AB 1487, HABA and/or the MTC, have the ultimate power to control the taxes levied.The letter states;

Regardless of whether AB 1487 is viewed as imposing a general or a special tax, it provides that any tax proposed pursuant to its provisions would have to be separately submitted by the board of supervisors of each county selected. To satisfy Article XIII C, the tax would have to be approved by the “electorate” in each county to which the measure was submitted. Article XIII C thus requires that the electorate in each county approve the tax, because the measure would be submitted to each such electorate by its board of supervisors...

Based on this description, it is hard to know if the AB 1487 authorities would be found to retain enough control over the tax to be ‘levying’ that tax for purposes of a potential conflict with Section 11. Howard Jarvis Taxpayers’ cites a number of cases that find otherwise.

Whether AB 1487 is contrary to Howard Jarvis Taxpayers’ will depend on the details of how the tax is administered and what powers HABA and MTC retain in this process once each county’s electorate approves the measures.

3 Proposed Gov’t Code section 65913.3(b)(1)(A) (SB 330) violates the California constitutional right that cities have to control land use within their boundaries. Article XI, Section 7.

SB 330 would regulate minimum parking requirements that cities may impose.The claim is that this violates the California constitutional right that cities have to control land use within their boundaries, Article XI, Section 7, which provides:

“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinance and regulations not in conflict with general laws.”

The argument here is that SB 330 is thus constitutional only if it is a “general law,” and that SB 330 is not a general law because it does not “apply statewide” but instead distinguishes between counties with more or fewer than 700,000, and between cities with a population of more or fewer than 100,000 in counties with a population of 700,000 or less. ”The letter cites to two cases which deal with preemption, i.e., the preemptive effects of a general law on local ordinances.

The letter does not provide any authority for the proposition that SB 330 is not a ‘general law.’

The problem with this claim is that it appears California case law allows for the legislature to make ‘classifications’ applicable to ‘general laws’ such that not every citizen or jurisdiction is subject to the law in the same way.

In Wores v. Imperial Irrigation Dist. (1924) 193 Cal. 609, the Supreme Court addressed this issue in the context of irrigation districts:

The main objection which the respondent urges to the validity of the act of 1915 is, first, that it is not a general law...It is the contention of respondent herein that the act of 1915 is not a general law for the reason that it is confined in its operation to the government of irrigation districts having an area of more than 500,000 acres, which, as the respondent contends, furnishes no proper basis for a classification. We are unable to agree with this contention.

It may be stated as a general rule that the question of classification is primarily one for the legislative power, to be determined by it in the light of its knowledge of all the circumstances and requirements. The presumption in the courts is in favor of the fairness and correctness of the determination by the legislative department, and the courts are not privileged to overturn that determination unless they can plainly see that the same was without warrant in the facts.

Id. at 619-620. See also San Carlos School Dist. v. State Board of Education (1968) 258 Cal. App. 2d 317, 324 (“The question of classification is primarily for the Legislature to determine in the light of its knowledge of all the facts and circumstances that give rise to the need for the legislation ...and if any state of facts reasonably can be conceived that would sustain the act, there is a presumption of the existence of that state of facts.”)

I have not done exhaustive research on when a ‘general law’ might not be considered general – and the letter does not cite any such case –but the line of reasoning discussed above suggests that the Legislature has the ability to impose such classifications, which do not per se make the law not ‘general.’

4. SB 330 is Unconstitutional Because It Denies Equal Protection of the Law

This claim is that SB 330 is invalid because it violates the equal protection clauses of the California and United States Constitution.The argument is, there is no rational basis for distinguishing between counties with more than, compared to fewer than, 700,000, or for distinguishing between cities with “a population of 100,000 or greater … located in a county with a population of 700,000 or less.”

The letter cites to Britt v. City of Pomona (1990) 223 Cal.App.3d 265, which holds that a classification treating different groups of citizens differently will only be constitutional if it bears a rational relationship to the purposes of the statute. i.e., that “there must be some rationality in the separation of the classes.”

This is an extremely deferential standard and I would be surprised if SB 330 does not contain language justifying the classification between large and smaller cities and counties. Such explanation could also be found in the legislative history of the bill.

I have not reviewed that history and the letter does not get into details on that issue. To the extent that the bill enforces minimum parking requirements in larger jurisdictions, it would seem likely that a rational basis could be found to justify that classification.