It’s Past Time to Repeal Article 34

Photo Courtesy of Los Angeles Public Library photo collection.

In California, it’s unconstitutional to build a publicly-funded low-income rental housing project unless it has been approved by the voters of the community in which the project is located.

Really.

It’s right there in Article 34 of the California Constitution. How can that be? Affordable housing projects get built all the time  without being placed on a ballot, right?

To answer that question we have to go back to 1950 when Article 34 was approved by voters as Proposition 10.  After it passed, opponents tried challenging it in court on Equal Protection grounds.  But it was upheld by the United States Supreme Count in James v. Valtierra, 402 US 137 (1971).  The Court found that the requirement to hold a referendum was in itself not discriminatory because referenda could also be required for other types of projects, not just low-income housing projects.

It was not the US Supreme Court’s best day.

So the law stands. But how do affordable housing projects get approved without such a vote?  The answer lies in the fact that the original Proposition 10 did not define the term “low-income rental project.”  Thus, the Legislature had to define the term.  The statute defines the term to mean a project where at least 49% of the projects will be affordable.  See California Health & Safety Code § 37000.   This means that when public funding is made available to an affordable housing project, the developer is only required to assure that slightly less than half of the projects are affordable.

But most projects do not rely solely on public funding. They incorporate funding from a number of sources.  And affordable housing developers typically exercise their discretion as property owners to offer all of the units at affordable rents.

While this workaround allows affordable housing projects to house a greater number of low-income households, it’s not without its costs.  Basic compliance with Article 34 can cost affordable housing developers between $10,000 and $80,000, and can add as much as 15% to the cost of building each unit.

But let’s not lose sight of the fact that it is flat out discriminatory.

Fortunately, voters will be able to address this wrong in November.  Last year, the Legislature passed SCA 2, by Senator Ben Allen, which places a measure to repeal Article 34 on the November ballot. Because the language was originally adopted by as an initiative, it also must be appealed by the initiative process.

Senator Scott Wiener has called Article 34 ” a scar on the California Constitution designed to keep people of color and poor people out of certain neighborhoods.”  It should be repealed.

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