Housing supply

Allowing elected officials to increase housing supply is democratic

In summary

To meaningfully address the interrelated issues of climate change, wildfire risk, and housing affordability, land use policies in California must change. Senate Bill 10 provides a good starting point.

By Christopher S. Elmendorf, special for 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 policy has hit a new low. An unassuming bill that would allow (not requiring) cities to rezone transit-accessible parcels for small housing projects without the expensive studies typically mandated by California’s Environmental Quality Act being portrayed as an unconstitutional attack on democracy it -same.

Many other CEQA exemptions already exist for pro-environmental activities. A worthy addition to the list is Senate Bill 10: moderately dense urban housing, which is desperately needed to reduce California’s carbon footprint and mitigate demand for new developments in exurban green areas and prone areas. to forest fires.

Senate Bill 10 provision labeled as “undemocratic” would allow a city council – if two-thirds of its members agree – to rezone transit-accessible urban parcels for up to 10 housing units, notwithstanding any restrictions on development previously approved by City voters. Critics say it goes hand in hand with Republican maneuvers to undermine democracy in red states. Eh?

In most states, laws enacted by voters can be amended or repealed by the legislature, just like other laws. It makes sense. Voters sometimes make mistakes. Conditions change. Laws need to be updated. A local policy that made sense when housing was more affordable and wildfires were isolated and rare may be obsolete today. That SB 10 acknowledges this and allows duly elected representatives to update it hardly makes it undemocratic.

However, California is not like most states. Laws passed by voters in California can generally only be changed or repealed by the voters themselves. But this principle yields when the law in question has been adopted by the electorate of a city and the organ revising the law is the Legislature.

The California Constitution empowers the legislature to deal with matters of statewide interest, overriding local ordinances if necessary. This is true whether the local law was enacted by a municipal 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 legislature and cannot vote on a city initiative.”

Thus, the Legislature took over the regulation of secondary suites, required cities to zone their fair share of regionally needed housing, restricted cities’ power to dispose of excess land, and forced cities to license a range housing projects on a non-discretionary basis. based.

The SB 10 is much less drastic. It establishes a state policy favoring the development of medium-density housing, while bending over backwards to accommodate local preferences and conditions. It applies the new state policy only to transit-rich and infill parcels that a local government chooses to rezone. It is fitting that the bill leaves this “membership” decision to city councils because members (unlike their constituents) take an oath to uphold the state constitution.

Indeed, SB 10 improves the Democratic pedigree of land use regulation in California.

For decades, NIMBY interests have been 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 landlords and other special interests dominate these elections, especially when zoning is on the ballot. Although the legislature recently ordered cities with low turnout to begin holding their elections on the same day as national elections (when turnout is much higher), that did nothing to undo the measures to vote adopted in non-representative municipal elections before 2018.

There is nothing undemocratic about undoing a measure passed by voters (many of whom have questionable Democratic pedigree) when two-thirds of the city council and the legislator agrees that the measure has become obsolete.

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