In summary

To meaningfully address the intertwined problems of climate change, wildfire risk and housing affordability, land-use policies in California must change. Senate Bill 10 offers a sensible place to start.

By Christopher S. Elmendorf, Special to CalMatters

Christopher S. Elmendorf is a professor of law at the UC Davis School of Law, cselmendorf@ucdavis.law.edu.

California’s bizarre and dysfunctional housing politics have hit a new low. An unassuming bill that would allow (not require) cities to rezone transit-accessible parcels for small housing projects without the expensive studies usually mandated by the California Environmental Quality Act is being portrayed as an unconstitutional assault on democracy itself. 

Numerous other CEQA exemptions already exist for pro-environment activities. Senate Bill 10 makes a worthy addition to the list: moderately dense urban housing, which is desperately needed to reduce California’s carbon footprint and attenuate demand for new development in exurban greenfields and wildfire-prone areas.  

The provision of Senate Bill 10 called out as “anti-democratic” would allow a city council — if two-thirds of its members agree — to rezone urban, transit-accessible parcels for up to 10 units of housing, notwithstanding any restrictions on development previously approved by the city’s voters. Critics say this is of a piece with Republican gambits to undermine democracy in red states. Huh?

In most states, laws enacted by the voters may be amended or repealed by the legislature, much like other laws. This is sensible. Voters sometimes make mistakes. Conditions change. Laws need updating. A local policy that made sense when housing was more affordable and wildfires were isolated and rare may be obsolescent today. That SB 10 recognizes as much and allows duly elected representatives to make the update hardly makes it undemocratic.

California is not like most states, however. Voter-adopted laws in California usually may be amended or repealed only by the voters themselves. But this principle yields when the law in question was adopted by a city’s electorate and the body revising the law is the Legislature.  

The California Constitution empowers the Legislature to address matters of statewide concern, preempting local ordinances if necessary. This is true whether the local law was enacted by a city council or directly by the voters. In fact, our constitution prohibits localities from passing laws that unreasonably limit the regional supply of housing. The state has a constitutional duty to protect “the interests of nonresidents who are not represented in the city legislative body and cannot vote on a city initiative.” 

Thus, the Legislature has taken over the regulation of accessory dwelling units, required cities to zone for their fair share of regionally needed housing, curtailed cities’ authority to dispose of surplus lands, and forced cities to permit a range of housing projects on a nondiscretionary basis

SB 10 is much less draconian. It establishes a state policy favoring development of moderate-density housing, while bending over backward to accommodate local preferences and conditions. It applies the new state policy only to those transit-rich and infill parcels that a local government elects to rezone. It is appropriate for the bill to assign this “opt in” decision to city councils because members (unlike their voters) swear an oath to uphold the state constitution.

Indeed, SB 10 enhances the democratic pedigree of land-use regulation in California.

For decades, NIMBY interests were able to exploit direct democracy by putting restrictive land use measures on the ballot in low-turnout, off-cycle elections. Political scientists have shown that homeowners and other special interests dominated these elections, especially when zoning was on the ballot. Although the Legislature recently mandated that low-turnout cities start holding their elections on the same day as national elections (when turnout is much higher), this did nothing to unwind the ballot measures adopted in unrepresentative municipal elections prior to 2018.   

There is nothing undemocratic about overriding a voter-enacted measure (many of dubious democratic pedigree) when two-thirds of the city council and the Legislature agree that the measure has become outdated. 

To meaningfully address the intertwined problems of climate change, wildfire risk and housing affordability, land-use policies in California must change. For critics to attack SB 10 — the lightest of light-touch reforms — as an assault on democracy is to engage in phantasmagorical politics. We can do better, California.

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