California's Pro-Housing State Legislation Prevails Over Local Voter Measures
Recent Trial Court Decisions Confirm That SB 330 Preempts Voter Referendums and Initiatives Limiting Residential Development
As Holland & Knight has previously reported, California courts have consistently enforced state housing laws that preempt land use and planning decisions by local governments. (See previous Holland & Knight alerts, "Court of Appeal Affirms California's Interest in Housing Can Override Laws of Charter Cities," Dec. 5, 2019, and "California Court of Appeal Sides with Holland & Knight Clients in Landmark Housing Case," April 26, 2021.) Now, two recent California trial court decisions hold that one such housing law – Senate Bill (SB) 330, the Housing Crisis Act of 2019 – preempts even local voter measures, extending the law to apply to the initiative and referendum power.
The NRF Project Owner LLC v. City of Oceanside
In November 2019, voters in the city of Oceanside voted to pass Measure L, a referendum that repealed Oceanside Ordinance No. 19-OR0729-1 (the Ordinance). The project developer challenged Measure L in court, arguing that that it violated SB 330, one of several housing laws passed by the California Legislature in recent years. (See Holland & Knight's previous alerts, "California's 2019 Housing Laws: What You Need to Know," Oct. 8, 2018, and "California's 2020 Housing Laws: What You Need to Know," Oct. 18, 2019.)
Among other things, SB 330 prohibits local governments from enacting "a development policy, standard, or condition that would … [i]mpos[e] a moratorium or similar restriction or limitation on housing development." Cal. Gov. Code § 66300, subd. (b)(1)(B).
On May 6, 2021, Judge Richard Whitney of the San Diego County Superior Court agreed with the project developer and held that, by preventing the Ordinance from going into effect, Measure L qualified as a "policy, standard, or condition" that effectively placed a limit "on housing development" and, therefore, violated SB 330. See The NRF Project Owner LLC v. City of Oceanside (Super. Ct. San Diego County, 2021, Case No. 37-2020-00025295-CU-MC-CTL).
This case is noteworthy, as it confirmed that state housing laws preempting conflicting laws adopted by local legislative bodies also preempt conflicting laws adopted by local voters. This is, however, consistent with prior appellate court decisions: "[t]he Supreme Court has concluded that the initiative and referendum power could not be used in areas in which the local legislative body's discretion was largely preempted by statutory mandate." See City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal. App. 4th 465, 474.
Oak Hill Park Co. v. The City of Antioch
In November 2020, voters in the city of Antioch voted to pass Measure T, an initiative to amend the Antioch General Plan's goals and policies applicable to the city's "Sand Creek Focus Area." As pertinent here, Measure T imposed a numerical cap on the number of housing units permitted, a minimum lot size requirement and a limitation on the number of parcels per lot. As in the City of Oceanside case discussed above, a housing developer again invoked SB 330 to challenge the validity of Measure T. In a tentative order dated June 7, 2021, Contra Costa County Superior Court Judge Edward Weil held that the measure was void for violating the preemptive state law. See Oak Hill Park Co. v. The City of Antioch (Super. Ct. Contra Costa County, 2021, Case No. MSN21-0048)
Since the amendments in Measure T amounted to a moratorium on housing development and enacted "[n]umerical limits on new housing," they conflicted with SB 330. Cal. Gov. Code § 66300, subd. (b)(1)(B) and (D).
Conclusion and Takeaways
As of the date of publication, it is not known whether either of these trial court decisions will be appealed, but pushback from certain cities and anti-development groups against the state mandates will likely continue at both the state and local levels, both inside and outside of the courtroom. As more cases regarding the conflict between state housing mandates and local land use decisions make their way through the courts, more appellate level decisions will be forthcoming, providing further guidance to all stakeholders in the effort to address California's critical housing shortage.
At least one proposal also foreshadows this pushback at the constitutional level. Proposed California Assembly Constitutional Amendment 7 (ACA 7) would amend the California Constitution to expressly allow local governments to override state laws on land use and zoning policies within their jurisdictions. However, most political observers agree that ACA 7 faces an uphill battle in the California Legislature.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.