Its Past Time to Repeal Article 34

In California, A publicly-funded low-income rental housing project cannot be approved until a referendum has been submitted to the voters of the city in which the project is located.  Most people do not realize that fact.

It’s right there in Article 34 of the California Constitution. No other type of housing is subject to this requirement.

How can that be? Affordable housing projects get built all the time (or at least some of the time) without being placed on a ballot, right?

To answer the question we have to go back to 1950 when the language that would become Article 34 was approved by voters under Proposition 10. Of course, it was challenged in court.  But the language was upheld in the United States Supreme Count in James v. Valtierra, 402 US 137 (1971), which dismissed an Equal Protection challenge because the Court found that a referendum could be used to approve or disapprove other types of projects, not just low-income housing projects.  (Not the US Supreme Court’s best day).

But the language of Proposition did not actually define the term low-income rental project.  The Legislature subsequently acted to define 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. Over time, most affordable housing projects have been built by affordable housing developers who elect to offer all of the units at affordable rates.  But the law does not require them to do so.

While this workaround has allowed projects to proceed, 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.

Plus, it is flat out discriminatory.

“Article 34 stands as an additional, anachronistic and expensive Constitutional barrier,” said Senator Ben Allen, “that subjects local governments to a web of regulations and costly elections that end up driving up the price of building publicly financed affordable housing.”  Fortunately, he is doing something about it.  He authored SCA 1, which places an initiative on the state ballot to repeal Article 34.  It must be repealed by initiative because it was adopted by an initiative.

“Article 34 is a scar on the California Constitution.  It’s designed to keep people of color and poor people out of certain neighborhoods.  And it needs to be repealed,” said Housing Committee Chairman (and co-author) Senator Wiener. “Publicly owned affordable housing for low-income people is critical to reducing homelessness and ensuring that housing is available to people of all income levels. This important source of housing shouldn’t be singled out for voter approval when other types of housing aren’t.”

CALCOG supports SCA 1 and the repeal of Article 34.  There is no place where we should harbor discrimination and segregation, and particularly so in our state constitution.