California Attorney General Rob Bonta is asking a Los Angeles Court to reject a lawsuit that seeks to overturn one of California’s recently enacted mandatory housing density laws, SB 10, which allows for 10 residential units on one parcel of land irrespective of local restrictions that say otherwise. The legislation allows municipalities to overrule zoning restrictions that were enacted by ballot initiatives, thereby running roughshod over the will of voters.
In a statement about his filing Bonta said, “As California families continue to struggle with the sky-high cost of housing, tackling our state’s housing crisis is a top priority. Laws like SB 10 are critical to address California’s housing shortage and affordability crisis. We believe this law is constitutional, and we will continue to vigorously defend it in court.”
The lawsuit against the ordinance was filed last September in Los Angeles Superior Court by the LA-based AIDS Healthcare Foundation. It was later joined by the City of Redondo Beach, California.
Announcing the lawsuit, AIDS Healthcare Foundation president Michael Weinstein said “We believe SB10 includes a blatant constitutional overreach in its provision allowing two-thirds of members a city council, board of supervisors or other such members of a legislative body’ to override local initiatives, including those with zoning restrictions, that may have been legally put in place by voters through the initiative process.This provision ignores the intent and will of voters, totally disregarding the sanctity of voters’ rights. We believe the provision is clearly unconstitutional and are therefore seeking to invalidate that provision and the entire law.”
The lawsuit says SB10 violates the California constitution because it allows municipalities to overrule local ballot initiatives. Even though the constitution says that can not be done, except in special circumstances. “The California Constitution provides in article III section 10 that the Legislature may amend an initiative statute only when approved by a vote of the electorate, unless the initiative expressly permits legislative amendment.”
SB10 is therefore “an unprecedented assault against the power of citizens to enact effective local initiatives” and an abrogation of “the constitutional right of initiatives.”
In his reply brief Bonta says the case should be dismissed because its claims are hypothetical or not “ripe” for consideration. “Petitioners’ claims are not ripe. Petitioners do not identify any local initiative that has been overridden under the auspices of SB 10. Instead, Petitioners assert only that some hypothetical city or county might enact a local law utilizing the provisions of SB 10, which might in turn contradict some local initiative, which might in turn unconstitutionally restrict those local voters’ initiative power.”
Moreover, “Without any concrete facts to support Petitioners’ facial challenge, this Court is being asked to issue an advisory opinion about the hypothetical future operation of a law. There is no reason to decide Petitioner’s constitutional claim in a vacuum; any future actions under SB 10 that Petitioners believe to be unconstitutional can and should be evaluated in context.”
But Bonta says even if the claims can be considered they should be dismissed because California courts have ruled that local initiatives can be disregarded.
“Petitioners’ opening brief engages in a detailed analysis of the initiative power, but puzzlingly omits any substantive discussion of the actual issue in this case—whether the Legislature can preempt local ordinances.”
“It can, as courts have repeatedly held. Numerous cases hold that the Legislature can restrict, and even withdraw, the local initiative power to address matters of statewide concern. That is precisely what the Legislature expressly indicated its intent to do with SB 10, by allowing local governments to override local restrictions imposed by local initiative to zone for denser housing in transit-rich areas and urban infill sites.”
The brief contends that, “The California Supreme Court has repeatedly held that the state can restrict local initiatives, as well as exclusively delegate to local governing bodies authority over matters, notwithstanding conflicting local initiatives.”
The AIDS Healthcare Foundation declined comment on Bonta’s motion, referring the California Globe back to its original filing.
Meanwhile, some people might wonder why an AIDS organization is getting involved in a law about multi-dwelling housing units? In its brief the organization says it wants to protect the integrity of the ballot initiative process, noting that it has been involved with multiple ballot initiatives over the years, including one requiring male actors in porn films to use condoms.
“The initiative has long served as a bulwark, against unresponsive government, providing an effective tool for the people to deploy when their elected officials fail to heed their concerns,” the lawsuit says.
AIDS Healthcare Foundation lawsuit:SB10lawsuitfilingCONFORMED9.22.21
AG Bonta’s reply brief:Bonta Opposition Brief 4-15
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