A Crisis is Always Valuable to Someone
One of California’s many crises is housing, according to the inexhaustible number of housing-related bills generated by our state legislators. The principal objective of these bills is to override city and county zoning rules. The argument goes, California has a housing crisis, the crisis is the fault of NIMBYs that refuse to build, build, build, and therefore the state needs to step in and zap local zoning rules – in some cases, regardless of what the state Constitution or court decisions say.
Charter Cities – Worrisome Sources of Blowback
In Article 11, Section 5, the California Constitution vests powers on charter cities to conduct their own municipal affairs as they see fit. However, nothing is that simple. Here is an excerpt from the opinion of California Supreme Court case California Fed. Savings & Loan Assn. v. City of Los Angeles (1991),
Since the addition of the "home rule" provision to our Constitution in 1896, the organic law of California has granted charter cities [54 Cal. 3d 6] sovereignty over "municipal affairs." Although this court and the Court of Appeal have parsed that cryptic phrase in literally scores of cases in the 95 years since the adoption of what is now article XI, section 5, subdivision (a) of the Constitution, what an early member of this court called those "wild words" have defeated efforts at a defining formulation of the content of "municipal affairs.
In other words, legislators push the envelope and it is up to cities to sue in court to invalidate the bills.
Senate Bill 1333
Let’s look at Senate Bill 1333, introduced in February 2018 by state Senator Bob Wieckowski and presently in committee process. The bill aims to neutralize the Constitutional authority of charter cities by amending the government code.
Government Code Section 65700, Applicability of Chapter 13, Local Planning, says “This chapter shall not apply to charter cities…” SB 1333 changes that to “This chapter shall apply to charter cities…”
Government Code Section 65803, applicability of Chapter 4, Zoning Regulations, says “Except as otherwise provided, this chapter shall not apply to a charter city…” SB 1333 changes that to “This chapter shall apply to a charter city.” The changed rule comes into effect July 1, 2018, “Notwithstanding Section 65803, a development agreement entered into by a charter city before July 1, 2018, shall not be required to comply with this article.”
Legislators’ concerns about their bills being unlawful are present; however, their contention that things need to be fixed in order to ameliorate a crisis takes precedence in their minds.
Comments on The Senate Rules Committee Analysis of SB 1333 state,
1 ) Housing affordability has reached crisis levels in California… Last year, the Legislature enacted a series of measures intended to increase housing affordability, including giving HCD [Department of Housing and Community Development] authority to review local actions for consistency with approved housing elements. But a recent court case [Kennedy Commission v. City of Huntington Beach] threatens to undermine the state’s efforts to ensure that affordable housing is available statewide by allowing charter cities to adopt specific plans that permit many fewer affordable units than required by their HCD-approved housing elements. SB 1333 closes this loophole by applying state planning and zoning laws to charter cities, thereby ensuring that charter cities’ zoning ordinances, specific plans, and development agreements are consistent with their plans for affordable housing contained in their housing elements.
2) The California Constitution vests charter cities with substantial authority over their municipal affairs, and voters choose to adopt charters in order to take advantage of that greater control. Land use is a prototypical example of a municipal affair—the permitting or prohibition of certain types of uses within the boundaries of a local government principally affects the people that live within that community, and zoning in particular has been recognized by courts as having limited statewide effects. The flexibility afforded by adopting a charter allows cities to make the best decisions for their citizens based on local conditions, even if generally applicable state law provides otherwise. SB 1333 runs contrary to these principles by subjecting numerous charter city land use actions to regulation by the state.
The Kennedy Commission vs Huntington Beach case is addressed in one paragraph as a mere loophole to be fixed. But the authority of charter cities is regarded in the second paragraph as a significant obstacle to forceful mandates that include charter cities.
Push the envelope and see who reacts seems to be the strategy of our times. In the case of SB 1333, it might be questionable that a piece of legislation can stand above what the state Constitution and court decisions say about the authority of charter cities.