California lawmakers and courts tighten state control over local housing decisions

Lawmakers and courts are tightening state power over local governments that won’t build housing, increasingly pushing rules that override local control of construction.

On Tuesday, Attorney General Rob Bonta and Assemblywoman Buffy Wicks, D-Oakland, unveiled a bill that would make it more difficult for local governments to block low-income housing. This follows an appellate court ruling on Friday upholding a 2021 state law that overrides local density limits on small apartment buildings.

“The message to local jurisdictions is very clear: the days of shirking your responsibilities to your neighbors are over,” Wicks said at a news conference to introduce AB 1893. “If cities won’t upzone themselves, we will upzone them. If cities won’t remove constraints, we will remove them.”

AB 1893 takes a carrot-and-stick approach to a concept that has become central to California’s efforts to build more homes: the builder’s remedy. The remedy arises from the state’s Housing Accountability Act, first passed in 1982. Under a series of bills passed in recent years, cities that have failed to build enough housing California’s housing element laws would be subject to the remedy, which is a legal process that makes far more difficult to stop new low-income housing projects.

Bonta said the bill would provide “clarity, certainly and predictability” to the sometimes-confusing set of rules around the builder’s remedy. According to a fact sheet provided by Wicks’ office, AB 1893 creates objective standards for when the remedy can be invoked.

It would also change the requirements for the amounts of low- and moderate-income housing that must be included in a project to make them more “economically feasible” for developers. Perhaps most controversially, it would create “higher density standards in areas with abundant resources and amenities.” The goal, Wicks said, is to promote infill and “missing middle” density housing in already developed areas.

“Under the current builder’s remedy, there’s been a lot of litigation and not a lot of housing built from it,” Wicks said.

Near the end of the news conference, Bonta praised an appellate court ruling issued Friday. A unanimous panel on 2nd District Court of Appeal, Division 2 upheld SB 10. This is a 2021 law which, according to the ruling by Justice Brian M. Hoffstadt, “grants counties and cities some discretion, on a parcel-by-parcel basis, to supersede local housing density caps, even if those caps had been adopted by voter initiative.” AIDS Healthcare Foundation v. Bonta, 2024 DJDAR 2868 (Cal. App. 2nd, filed June 24, 2022).

Bonta said the ruling “affirmed, in very clear and uncertain terms, that building more housing in the State of California is an issue of statewide concerns.”

The AIDS Healthcare Foundation sued to block the law, arguing it violated the rights of voters to make law by initiative, including laws requiring voter approval for projects.

“We conclude that it does not,” wrote Hoffstadt in a ruling joined by Justices Victoria M. Chavez and Elwood Lui. “We so conclude because the housing shortage is a matter of statewide concern, because Senate Bill 10 conflicts with (and hence preempts) local initiatives that make housing density caps mandatory, and because Senate Bill 10’s more narrowly tailored mechanism of cloaking counties and cities in the mantle of state preemptive authority so that they may decide whether to supersede a local density cap on a parcel-by-parcel basis—rather than effecting a wholesale invalidation of all local density caps in every county and city—is not constitutionally problematic.”

“The drift toward the state overriding local governance is something that every community should be concerned about,” said foundation President and Founder Michael Weinstein in an emailed statement. “Unfortunately, the court supports allowing the state in its ‘infinite wisdom’ tolet local legislative bodies overridelocal ballot initiatives. It seems that neither the court nor the legislature believes voters should have the right to self-determination.”