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Sacramento Report — Efforts Continue to Repeal Article 34 of the California Constitution
By ron Kingston
Sometimes I wonder why legislation that makes a whole lot of sense does not move forward.
Unfortunately, Senate Constitutional Amendment 2 (SCA 2), by Senators Allen and Wiener, for example, should have moved through the legislative process this year.
The state constitutional amendment proposed to repeal Article 34 of the California Constitution which requires approval by the voters of a city or county for the development, acquisition of a publicly funded affordable housing project.
Under the California Constitution, Article 34:
• Requires majority approval by the voters of a local government for a publicly funded “low-rent housing project.” • A “low rent housing project” as defined in the California constitution does not apply to any development composed of urban or rural dwellings, apartments, or other dwellings such as: – The development of privately owned housing receiving no property tax exemption and not more than 49% of the dwellings to be occupied by persons of low income.
– The development is privately owned housing and not exempt from property taxes by reason of any public ownership, and
not financed with direct longterm public financing from a government. – The development is intended for owner-occupancy rather than for rental-occupancy. – The development consists of newly constructed, privately owned one-to-four family dwellings not on adjourning sites. – The development consists of existing dwelling units leased by the state from a private owner of the dwelling units. – The development consists of the rehabilitation, improvement, or addition to, or replacement of dwelling units of a previously existing low-rent project. – The development consists of the acquisition, rehabilitation, reconstruction, improvement or any combination thereof, of a rental housing development which prior to the date of the transition to acquire, rehabilitate, reconstruct, improve or any combination thereof that was subject to a contract for federal or state assistance for the purpose of providing affordable housing for low-income households and maintains or enters into, a contract for federal or state assistance for the purpose of providing affordable housing.
Unquestionably, Article 34 was created in response to the Federal Housing Act of 1949, part of President Truman’s Fair Deal to help lower-income postwar families move into better living situations. At the time, 72 years ago, society had an extremely different attitude about race, ethnicity, class and poverty. There were far fewer tools for residents to alter or block plans for new housing — the California Environment Quality Act, the Brown Act, the Coastal Act, and far fewer lawsuits. California voters have made it clear they want California to do better — much better — for those struggling to afford housing, supporting ballot measures dedicating hundreds of millions in taxpayer dollars to tackle the housing and homeless crises. The state owes it to all taxpayers to use the money as efficiently as possible. SCA 2 is designed to give voters an opportunity to eliminate obstacles enshrined in the State Constitution from a bygone era, that some argue was strongly based as a discriminatory practice. The Housing Act of 1949 banned explicit racial segregation in public housing which left cities scrambling to find alternative ways to separate communities of color from white neighborhoods. The real estate industry was not able to stop the passage of the Housing Act of 1949 at the federal level, sought to slow and stop its implementation at the state and local level.
The enactment of Article 34 grew out of a controversy surrounding a lowincome housing project in Eureka. The
local housing authority had applied for federal funding to cover the costs of planning and surveys for a low-income public housing development. Following the application for funding, the city clerk received a signed petition from more than 15% of the city electorate requesting any city council approval of the loan application be submitted to the voters for approval. A lawsuit followed and made its way to the California Supreme Court, holding the power of referendum applies only to legislative acts, not acts that are executive or administrative. Since the acts were administrative, and not legislative, the people could not use a referendum to change the city government’s decisions and the court had no jurisdiction.
Given that the citizens of Eureka could not make decisions around lowincome developments in their community, they joined forces with the California Real Estate Association (now known as the California Association of REALTORS®) the organization behind the measure enacting Article 34.
At the time, CREA argued:
“If you value your property, if you hold liberty dear, if you believe in the dignity of the individual, if you love this land of the free and home of the brave, if you desire to stop the enemy of socialism that is gnawing at the vitals of America from within, the ballot box is your weapon, the one and only means by which our great Republic will be preserved and improved.”
Article 34 requires that voter approval be obtained before any state public body develops, constructs, or acquires a low rent housing project.
Local agencies usually seek general authority from the electorate to develop low-income housing prior to the identification of a specific project. This has been the traditional way cities and counties have addressed the issue of Article 34.
In 1974, then Assembly Member Willie Brown authored a measure in the legislature that placed the repeal of Article 34 on the ballot as Proposition 15. That measure was defeated. In 1977, he authored a modification to Article 34 and Proposition 4 was placed on the 1980 ballot. That proposition was also defeated. The most recent attempt to repeal Article 34 occurred in 1993 as Proposition 16. That proposition also failed, even with 60% of voters supporting it, as a 2/3 vote is required to add or amend the state constitution.
Should SCA 2 become a ballot measure, it would be placed on the November 2022 ballot. Perhaps, just perhaps, the electorate will finally repeal Article 34 in the coming year.
Ron Kingston is President of California Strategic Advisors and Legislative Advocate for the Apartment Association of Orange County. For questions regarding this article, please call AAOC at (714) 245-9500.
