Public Comment

Are newly proposed state housing laws constitutional?

Bob Silvestri
Friday June 28, 2019 - 05:09:00 PM

Laws such as AB 1487 and SB 330 and SB 592 intend to give unprecedented powers to regional agencies and unelected (read that as “politically appointed”) groups to levy fees and taxes to fund their own growth and housing priorities, and override local control of zoning and planning.

AB 1487, for example, proposes to create a unique "regional" government entity, using existing 'special districts' laws in a new way. As explained by Marin Post Contributor Sharon Rushton,

The stated purpose of AB-1487 is to "establish the 'Housing Alliance for the Bay Area' in order to increase affordable housing in the San Francisco Bay Area by providing enhanced funding and technical assistance for tenant protection, affordable housing preservation, and new affordable housing production." The bill authorizes the creation of a bay area regional housing finance agency. The agency would have the authority to impose region-wide special taxes (including parcel taxes, business taxes, and transactions and use tax), issue bonds, incur and issue debt, buy and sell land, and allocate funds, among other powers.

“It is unclear how many of the measures that generate revenues would require voter approval pursuant to the California Constitution. Proponents of the bill hope to raise $1.5 billion annually.”

Since our state legislators began to move forward in earnest with an almost endless variety of these “housing crisis” remedy bills such as SB 828, SB 50, AB 1487, SB 330, and others, Community Venture Partners been questioning the constitutionality of their efforts to wrest control of zoning and planning away from duly-elected local governments -- See State Housing Laws: Questioning the Constitutionality of Recent Legislation.

In the past two years others are, increasingly, questioning the constitutionality of all these laws and have begun to present legal arguments in the courts and elsewhere.

In January of 2019, the City of Huntington Beach, California filed a lawsuit against the State of California to overturn Senate Bill 35, a 2018 law which streamlines processes for building new housing developments. As reported in the San Francisco Chronicle, “Huntington Beach’s lawsuit contends that the state’s Constitution grants charter cities exclusive authority over local land use and zoning.”

Recently, Nicholas Waranoff, a retired attorney who lives in Orinda, sent the State Assembly Committee on Local Government and State Senate Governance and Finance Committee letters challenging the constitutionality of AB 1487 and SB 330 and SB 592. Those letters are attached below. His letters make a compelling argument that both proposed laws violate the California State Constitutional “right that cities have to control land use within their boundaries.” 

In his letter to “Oppose AB 1487,” Waranoff writes,[1] 

“I. AB 1487 violates Article IV, Section 16 of the California Constitution because any shortage of funding for affordable housing is not unique to the San Francisco Bay Area, and because the housing crisis is no more acute in the Bay Area than in certain other areas in the State. The bill’s assertions to the contrary, in its attempt to justify its lack of statewide effect, is not supported by the facts. 

“II. AB 1487 violates Article XI, section 11, subdivision (a), of the California Constitution, which provides that the Legislature may not delegate power to levy taxes to a “private person or body.” AB 1487 would create a new state agency, the Housing Authority of the Bay Area (“HABA”). The delegation of the taxing power to HABA (or to the Metropolitan Transportation Commission (“MTC”), which could assume the powers and obligations of HABA) violates this provision of our Constitution, because each is a “private person or body” – neither would be composed entirely of elected officials. AB 1487 would allow “taxation without representation.” [Emphasis added] 

“III. Any tax imposed by HABA or MTC would only apply in counties whose electorate approved the tax.” 

You can read his letter, here, for a full explanation of his legal arguments. 

In his letter to “Oppose SB 330,” Waranoff writes, 

“Article XI, Section 7, of the California Constitution, provides, “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” SB 330 is constitutional only if it is a “general law.” SB 330 is not a general law, because it does not “apply statewide;” instead, it 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. [Emphasis added] 

“SB 330 is also invalid because it violates the equal protection clauses of the California and United States Constitution by making those distinctions.” 

This then raises a fair argument about “equal protection” clauses in both the California and the U.S. Constitution. 

Waranoff argues, 

SB 330 is also invalid because it violates the equal protection clauses of the California and United States Constitution. (U.S. Const., 14th Amend., and Cal. Const., art. I, § 7.) As explained in Britt v. City of Pomona (1990) 223 Cal.App.3d 265: 

“Both the Fourteenth Amendment of the federal Constitution and article I, section 7 of the state Constitution prohibit denial to persons of the equal protection of the laws. These constitutional provisions require that persons who are similarly situated receive like treatment under the law and that statutes may single out a class for distinctive treatment only if that classification bears a rational relationship to the purposes of the statute. Thus, if a law provides that one subclass receives different treatment from another class, it is not enough that persons within that subclass be treated the same. Rather, there must be some rationality in the separation of the classes.” (Citation omitted.)”[Emphasis added] 

You can read his letter, here, for a full explanation of his legal arguments. 

Finally, in his letter to oppose SB 592, Waranoff writes, 

"For the reasons that follow, SB 592 it is unconstitutionally vague and denies procedural due process. [Emphasis added] 

"SB 592 is unconstitutionally vague because it requires that, if a local government imposes conditions on a “housing development project” (which is broadly defined), it must make findings about whether the conditions will cause the project to be “infeasible” and about whether the conditions will cause a “substantial impairment” of the “economic viability” of the project. These terms have no ascertainable meaning. 

"SB 592 denies procedural due process because it requires that, if a local government imposes conditions on a “housing development project,” the local government must make certain findings, supported by a preponderance of the evidence in the record. The constitutional due process infirmity is that the local governments do not have, and are not provided, the tools needed to obtain the necessary evidence to be able to determine, for example, whether the conditions will cause a project to be “infeasible” or whether the conditions will cause a “substantial impairment” of the project’s “economic viability.” Furthermore, the very short time frame to develop the evidence is plainly insufficient. These problems are all the more significant because the penalties if a local government makes an incorrect decision are severe, including substantial fines." 

We contacted Mr. Waranoff and raised several issues to test his legal arguments AB 1487 and constitutionality in general. Among those was this comment and question. 

“There are many laws that one could argue are general laws that do not apply to all locations or all residents of California. For example, voting laws and drinking laws exclude large numbers of people (young, incarcerated, etc.). Other state laws, such as the California Environmental Quality Act, provide for exemptions that cities, counties, and agencies can claim under certain circumstances. And finally, local zoning laws and planning approval exempt various public and government agencies and state universities in many instances. So, my question is how does this correlate with your argument about "general laws?" Is CEQA not a general law?” 

In response, Mr. Waranoff wrote. 

“General laws: Article IV, Section 16, of the California Constitution provide: 

(a) All laws of a general nature have uniform operation. 

(b) A local or special statute is invalid in any case if a general statute can be made applicable. 

“I think the best approach is to consider each bill separately, because the issues are different.” 

Re: AB 1487, Mr. Waranoff writes, 

“Assembly member Chiu recognized that this section of the constitution was an issue because section 2 of AB 1487 attempts justify the bill as a local or special statute. Sec. 2 states, “SEC. 2. 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.” If statement is not true, AB 1487 violated Art. IV, Sec. 16. 

“Assembly member Chiu is co-author of SB 50. In that bill, which is currently on hold, there are numerous legislative findings that the housing crisis is statewide. I don’t think the folks in Los Angeles would agree that the San Francisco Bay Area’s housing crisis is worse than theirs.” 

In response to my questions about CEQA and other laws that deal with excluding groups of people or organizations, Waranoff commented that in his opinion “Article IV, Section 16 only addresses location, not groups of people.” Adding that 

“CEQA applies generally throughout the state. If CEQA only applied in Northern California and not in the rest of the state, there would be an issue under this constitutional section.” 

“In terms of laws that differentiate between groups of people, I don’t think Art. IV, sec. 16 applies, but in addition I would argue that the law applies to all people. The analogy would be if there was a different voting or drinking age in Northern California v. Southern California.” 

In response to my questioning him about SB 330 violating the California State Constitution, he replied, 

“The analysis [v. AB 1487] somewhat different, because Article XI, Section 7, of the California Constitution, gives a city a constitutional right to regulate land use such as zoning or parking restrictions in connection with development. This constitutional right is only subject to “general laws.” So, a law may not be a general law and yet may still be valid if it satisfies Article. IV, section. 16, as discussed above, but a non-general law cannot trump zoning or land use laws or decisions of a city.” [Emphasis and clarification added] 

Mr. Waranoff’s arguments are well-founded in citations of case law and in his well-reasoned explanations detailed in the “Discussion” sections of his letters, which I encourage readers to review. But his arguments have another quality that deserves attention. 

They have the unavoidable ring of making good common sense—something that we don’t find in the convoluted and ideologically-based ‘marketing messaging’ approach to legislation that Senator Wiener and Assembly Member Chiu embrace. 


[1] For a more complete understanding of the provisions of AB 1487, please see: 

Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area.