In AIDS Healthcare Foundation v. Bonta (2024) 101 Cal.App.5th 73, the Second District Court of Appeal upheld the power of local governments to override housing density caps, including caps adopted by voter initiative.
Legal Background
Under Senate Bill 10 (“SB 10”), passed in 2021, the Legislature granted counties and cities discretion on a parcel-by-parcel basis to supersede local housing density caps. This discretion was limited to particular parameters, namely that the local government could adopt an ordinance to zone a parcel for up to 10 residential units if: (1) the parcel was located in a transit-rich area or an urban infill site, (2) the parcel was not located in a fire hazard zone, and (3) the local legislative body making the increased density zoning determination did so consistent with its “obligation to affirmatively further fair housing.” For a local government to override a housing density cap that was previously instituted via local ordinance, it required a simple majority only. For a local government to override a housing density cap that was enacted by a local voter initiative, it required a two-thirds vote.
Less than one week after Governor Newsom signed SB 10, the AIDS Healthcare Foundation (“Foundation”) petitioned for a writ of mandate and sought an injunction against enforcing SB 10 and a declaration that the law is unconstitutional. The Foundation argued that SB 10’s grant of authority to override voter initiatives violated the California Constitution’s guarantee of initiative power for electors in cities and counties (Cal. Const. art. II, § 11), especially charter cities and counties (Cal. Const. art. XI, § 3(a)). The Foundation argued that local governments’ authority under SB 10 to override the will of the voters was incompatible with voters’ initiative rights and thus unconstitutional. Both the trial court and appellate court disagreed for the same reason: preemption.
The California Legislature’s Authority Preempts Local Government Action.
Like the supremacy clause of the United States Constitution, the California Constitution has a similar clause which states that cities and counties may establish their own ordinances and regulations within their local limits so long as they do not conflict with state laws (Cal. Const. art. XI, § 7). For any given city or county, simply conflicting with state laws is sufficient for the local ordinance to be invalidated. However, for charter cities and counties, the bar is slightly higher: for state law to preempt charter city or county ordinances, there must be a conflict, the “subject matter of the [state] law must be of statewide” or “regional” concern, and the state law must be “reasonably related to [the] resolution” of that concern. Despite the higher bar for charter cities and counties, state-level legislative action will still preempt charter cities’ or counties’ local ordinances if those elements are met. Moreover, despite the vast power associated with initiatives, even those are preempted by legislative action so long as the Legislature gives a “definite indication” that it intends to preempt the local initiative. Here, the Second District was tasked with determining whether SB 10 sufficiently established those elements to grant local governments authority to override voter initiative housing density caps.
SB 10 Addresses a Matter of Statewide Concern.
Unsurprisingly, the Second District found that SB 10 addresses a matter of statewide concern because SB 10 is designed to accommodate housing development and combat California’s ever-growing housing shortage. The court referenced several legislative findings relating to the significance of the issue, and it pointed out that the Legislature has spoken on the matter in previous legislative efforts, including through the Housing Element Law and Least Cost Zoning Law. Concluding that previous legislation was insufficient to solve California’s housing shortage, the court determined that SB 10 again addressed a matter of statewide concern. Despite the petitioners’ arguments that zoning is an exclusively local problem, the court referred to broader challenges with the housing shortage, such as NIMBYism and high costs of living. Taking each of these factors into consideration, the court disagreed with petitioners’ formulation and ultimately decided that SB 10 constitutes a matter of statewide concern.
Curiously, the Second District did not directly explain how or why SB 10 is “reasonably related” to resolving the housing shortage, apart from the general assumption that allowing increases in high density zoning will accommodate more housing in those zones. Instead, the court focused on how SB 10 grants discretion, but not a mandate, to local governments who opt to increase housing density in these zones. In response to one of many arguments about the statute’s constitutionality, the court concluded that this discretion was constitutional despite the power it afforded local governments.
The Legislature Gave a Definite Indication of its Intent to Preempt Local Initiatives with SB 10.
Finally, the court rejected petitioners’ arguments that the language of SB 10 did not meet the “clear statement” standard necessary to preempt local legislation enacted via initiative. Despite petitioners’ contentions that initiatives are so fundamental to the constitutional rights of Californians, and should never be preempted, the court found that the Legislature had the power to preempt and clearly intended to do so. Citing the language of SB 10, which included a provision granting local governments “power … notwithstanding any local restrictions … enacted by local initiative.”
For all these reasons, the Second District sided with local governments to conclude that they have the power to preempt local initiatives to zone parcels for up to 10 residential units, surpassing local housing density caps. With SB 10 upheld by the court, local governments may exercise their discretion to increase housing density locally to address the housing shortage in their communities, but they are not bound to do so.
William Abbott is Of Counsel and Kara Anderson is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.