Housing bills draw threats of lawsuits from opponents

Opponents say they will sue if a pair of state housing bills become law.

"It has always been a plan B to consider legal action should these bad bills move forward," Mike Griffiths, founder California Cities for Local Control, wrote in an email. "We will likely join with other groups who have legal expertise to pursue this, but we plan to leverage the support of well over 500 elected officials from cities all over the state, who may be in a position to round up funding for a joint legal battle."

SB 9 would make it easier to build duplexes and in-law units. SB 10 would allow local governments to bypass the California Environmental Quality Act and other limits to build up to 10 units on a parcel in areas that are transit rich or urban infill. Both bills passed the Assembly last week. Each must go back to the Senate to concur with amendments made in the Assembly, but Senators approved both measures by wide margins in the spring.

"Both SB 9 and SB 10 will destroy local control of use decisions guaranteed in the CA State Constitution," according to a news release distributed last week by the Mangan Park Neighborhood Association and other groups. A representative of that group, Jennifer Holden, did not respond to a call and email.

Sen. Scott Wiener is the author of SB 10 and a coauthor of SB 9. He's also a former deputy city attorney in San Francisco and has written several bills designed to increase the state's housing supply.

"SB 9 and 10 are quite constitutional," Wiener said in an email. "As determined by the courts, housing is a matter of statewide concern, and the state has ample power to legislate in the area, as it has done for the last half century. When it comes to our severe housing crisis, extreme local control has driven the car into the ditch."

Opponents might cite Article 11 of the California Constitution, which covers the powers of local governments. Section 7 gives local governments the power to "make and enforce ... ordinances and regulations not in conflict with general laws." Other sections detail the rights of charter cities and local control over property and land development.

Foes of these bills may also argue they can't undo the will of local voters who pass development limits at the ballot box.

"SB 10 by state Sen. Scott Wiener would override the 108-year-old constitutional right of Californians to pass ballot initiatives that politicians cannot undo," according to a fact sheet bill opponent Livable California distributed last week.

Legislative leaders did not refer either bill to judiciary committees. This is generally a sign they don't foresee legal or constitutional issues with a measure. But they went through the local government committees. Redondo Beach Mayor Bill Brand testified against SB 10 in the Assembly Local Government Committee in June.

"That is the whole point of the initiative process, to allow voters to make their own laws directly," Brand told lawmakers. "Article 2 of the California Constitution simply states initiative and referendum powers may be exercised by the electors of each city or county. You can't undo these powers reserved in the constitution with legislation. It requires a statewide vote."

Multiple attorneys representing local governments and other groups declined to comment on the record. But some said those who oppose these bills might be better off defeating them by referendum.

If they filed a legal challenge, attorneys said, the best target might be drafting errors that made the measures ambiguous or brought them into conflict with other statutes. Judging from the way courts have upheld another law Wiener authored, a constitutional challenge could be difficult.

In 2017, Gov. Jerry Brown signed Wiener's SB 35. The law requires local governments to streamline approval of multi-family developments, even sometimes when they conflict with local ordinances. SB 35 has withstood several legal challenges brought by groups or local governments that sought to stop particular developments. Some of these claimed the law did not apply to charter cities defined by having laws via a city charter . These cities -- including the 15 largest cities in the state -- have expanded powers under the state constitution.

In April, a panel on the 1st District Court of Appeals unanimously reversed an Alameda County Superior Court ruling blocking a 135-unit apartment building. The City of Berkeley argued SB 35 was unconstitutional as applied to charter cities, citing State Building & Construction Trades Council of California v. City of Vista, 2012 DJDAR 9223.

Presiding Justice J. Anthony Kline wrote the constitutionality of the law "does not turn on there being a statewide interest in limiting local historical preservation authority but rather on whether the statewide interest in increasing affordable housing sufficiently justifies the legislation's impact on that authority." Ruegg & Ellsworth v. City of Berkeley, A159218 (Cal. App. 1St, filed Dec. 20, 2019).