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First they came for local zoning control. Now they’re coming for your right to vote
We read a lot about the right to vote these days and how states are passing laws to deny people access to the polls. In California, everyone thinks nothing like that could ever happen here.
They should think again.
When SB 375 was passed by the California legislature in 2008, it promoted the now endlessly repeated myth that unmitigated growth was good for housing affordability. But, though it all sounded good in theory, there has never been any evidence that this is the case. And so, California’s very own “big lie” was born.
This seminal legislation kick-started a tsunami of anti-local zoning control, anti-suburban single-family living, and pro-unfettered private, for-profit, real estate development (i.e., trickle-down economics) legislation that is currently reaching a thunderous crescendo in Sacramento, all in the name of the environment and housing affordability, despite the fact that each new law passed further dismantles protections under the California Environmental Quality Act (CEQA) and has so far created a negligible amount of affordable housing. In fact, recently proposed legislation, like SB10, doesn't require any affordable housing at all.
Community activist organizations from middle-class suburban communities across the state to some of the poorest communities in South Central Los Angeles are pushing back against Sacramento’s theft of local control of zoning and planning and the state's completely ridiculous housing quota numbers (RHNA). Small cities and counties are finally coming to the realization that they need to push back on Sacramento’s legislative usurpation of the “police powers" guaranteed to them by the California State Constitution. A state constitutional amendment has even been proposed in Sacramento to reinforce those powers.
Meanwhile, the same legislators and financial backers who have led the onslaught on local control have quietly set their sights on a new target: your voting rights. After all, why should they bother with all the cumbersome public comment if they can simply declare that in matters of “statewide concern” (e.g., housing) the government has the right to deny citizens the right to “petition government for redress of grievances:” a right that is enshrined in the First Amendment to the US Constitution and which has existed since the signing of the Magna Carta in 1215.
One of the first unvarnished attempts to codify the denial of your right to “petition” your government on anything to do with housing in California came in early 2021, in the form of Assembly Bill 1322 by Assembly Members Ting and Wicks.
Among other things, AB 1322 proposed to give county supervisors and city councils the authority to ignore any legal, voter ballot initiative about housing if they decided that it was a “matter of statewide concern rather than a municipal affair” and therefore concluded that the ballot initiative “conflicts with state housing law” and was, therefore, unenforceable and had “no legal effect.” It even gave that city or county the ability to go to court to defend its decision to ignore the will of their electorate.
Thankfully, AB 1322 was buried in committee a month ago. But we should not be surprised to see it resurrected in the next legislative session.
At the same time, Senate Bill 10 (Senator Scott Wiener-Dem-San Francisco), which was enthusiastically voted for by Marin County Senator Mike McGuire (a major Scott Wiener supporter) is currently headed for its third reading before the State Assembly. The most recent version of this bill ambiguously dances around the voter ballot initiative question when it comes to housing. In its past versions, it preserved the rights of local residents to initiate and bring forth local ballot initiatives to control local zoning so long as they don’t conflict with state law. But in the most recent versions, it's become vaguer on that. It is unclear on whether statewide, voter ballot initiatives on housing should also be unenforceable.
It is also notable that SB 10’s primary purpose of “ensuring the adequate production of affordable housing” has been removed and replaced with just promoting “adequate housing, in light of the severe shortage of housing.” (Translation: luxury units are just fine to fulfill that goal)
Affordable housing, the goal that started it all, has now been thrown under the same bus that is already trampling over environmental protections.
However, there is an even greater cause for concern, on a different front. In the case of The NRF Project Owner LLC vs City of Oceanside, recently decided by the honorable Richard S. Whitney of the Superior Court of the County of San Diego, CA., the court handed down a decision that says a city,
“shall not enact a development policy, standard, or condition that would have any of the following effects:
“(B)(i) Imposing a moratorium or similar restriction or limitation on housing development, including mixed-use development, within all or a portion of the jurisdiction of the affected county or city, other than to specifically protect against an imminent threat to the health and safety of persons residing in, or within the immediate vicinity of, the area subject to the moratorium or for projects specifically identified as existing restricted affordable housing.”
And that
“(2) It is the intent of the Legislature that this section be broadly construed so as to maximize the development of housing within this state. Any exception to the requirements of this section, including an exception for the health and safety of occupants of a housing development project, shall be construed narrowly.”
Loosely summarized, this decision said no limitations can be enacted via a ballot initiative that limit up-zoning or density increases because housing is now a matter of “statewide concern,” because the legislature said it is. Under this decision, even an initiative that says residential zoning density should remain as it presently exists would not be legal. The judge said that neither local government zoning ordinances nor citizen ballot initiatives are valid or enforceable if they deal with anything that might ever limit housing development.
As explained by the law firm of Holland & Knight[1], the court’s decision holds that
“Senate Bill (SB) 330, the Housing Crisis Act of 2019 – preempts even local voter measures, extending the law to apply to the initiative and referendum power.” It did so on the basis that “SB 330 prohibits local governments from enacting "a development policy, standard, or condition that would … [i]mpos[e] a... limitation on housing development." Cal. Gov. Code § 66300, subd. (b)(1)(B).” [Emphasis added]
This is the first time SB 330 has been interpreted this broadly. Needless to say, this decision is being appealed for obvious reasons. It would set a precedent under which the state can simply declare anything a matter of "statewide concern" and by doing so, eliminate basic powers of locally elected governments and their citizenry.
Some argue that housing is a challenge that's important enough to give up some of our democratic rights to solve. But if the right to vote is extinguished, in principle, in this instance, who is to say that it won't be extinguished again for a different purpose that you don't agree with, in the future?
Left unchallenged, this will not end well for any of us.
[1] https://www.hklaw.com/en/insights/publications/2021/06/californias-prohousing-state-legislation-prevails-over-local-voter
Bob Silvestri is a 28-year Marin County resident, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.