AIDS Healthcare Found. v. Bonta

1

AIDS HEALTHCARE FOUNDATION et al., Plaintiffs and Appellants, v. ROB BONTA, as Attorney General, etc., et al., Defendants and Respondents.

B321875

California Court of Appeals, Second District, Second Division

March 28, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County No. 21STCP03149, James C. Chalfant, Judge. Affirmed.

Michael W. Webb, City Attorney; Strumwasser & Woocher Beverly Grossman Palmer and Julia Michel for Plaintiffs and Appellants.

Law Offices of Stuart M. Flashman and Stuart M. Flashman for Livable California and Thousand Friends of Martinez as Amici Curiae on behalf of Plaintiffs and Appellants.

Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney General, Benjamin M. Glickman and Seth E. Goldstein Deputy Attorneys General, for Defendants and Respondents.

HOFFSTADT, J.

In response to a "severe shortage of housing at all income levels in this state," our Legislature enacted Senate Bill No. 10 (2021-2022 Reg. Sess.) (Senate Bill 10), which 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. (Gov. Code, § 65913.5; Stats. 2021, ch. 163, § 1.)^[1] Does this legislation violate the initiative power enshrined in article II, section 11 of the California Constitution? We conclude that it does not. 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. We accordingly reject the facial challenge to the constitutionality of Senate Bill 10, and affirm the trial court's order denying the petition for a writ of mandate.

FACTS AND PROCEDURAL BACKGROUND

I. Senate Bill 10, On Its Face

By its plain text, Senate Bill 10 authorizes local legislative bodies, including those of "charter cities," to "adopt an ordinance to zone a parcel for up to 10 units of residential density per parcel" as long as (1) "the parcel is located in" either (a) "[a] transit-rich area," or (b) "[a]n urban infill site"; (2) the parcel is not located in "a very high fire hazard severity zone"; and (3) the local legislative body "find[s] that the increased density . . . is consistent with [its] obligation to affirmatively further fair housing." (§ 65913.5, subds. (f), (a)(1), (a)(4)(A) & (b)(3); see id., subds. (e)(2) & (e)(3) [defining "[t]ransit-rich area" and "[u]rban infill site"].) What is more, Senate Bill 10 empowers legislative bodies to enact such parcel-specific zoning ordinances "[n]otwithstanding any local restrictions" on housing density limits, whether those limits were enacted by ordinance or adopted by local voter initiative, except that Senate Bill 10 does not empower them to supersede "initiative[s] that designate[] publicly owned land as open-space land . . . or for park or recreational purposes." (Id., subds. (a)(1) & (a)(4)(B).) In other words, Senate Bill 10 grants local legislative bodies discretion whether to supersede local caps on housing density: It takes a simple majority to supersede a housing density cap enacted by a local ordinance, but a supermajority, two-thirds vote to supersede a cap adopted by a local voter initiative. (Id., subd. (b)(4).)

Section 65913.5 is a temporary measure; it sunsets on December 31, 2028. (Id., subd. (a)(2).)^[2]

II. This Lawsuit

Six days after the Governor signed Senate Bill 10 into law, AIDS Healthcare Foundation-a nonprofit organization which "has been engaged in" the initiative process in California for decades and "expended financial resources" lobbying to remove the initiative-override provisions of Senate Bill 10-filed a petition for writ of mandate against the State of California and its Attorney General (collectively, the State). The City of Redondo Beach, whose voters had previously adopted an initiative curtailing their city council's power to enact parcel-specific ordinances allowing for higher housing density without voter approval, joined as an additional petitioner in the operative first amended petition. That petition seeks an injunction commanding the State to cease enforcement of Senate Bill 10 as well as a declaration that its provisions granting local legislative bodies the discretion to supersede housing density caps in local initiatives "eviscerate[] the fundamental protection against subsequent legislative amendment of initiatives without a vote of the people."

Following briefing on the petition and a hearing, the trial court issued a 20-page decision denying the writ of mandate petition and upholding Senate Bill 10 as a constitutionally valid exercise of the Legislature's power. After concluding petitioners' facial challenge to Senate Bill 10 was ripe, the court ruled that section 65913.5 did not unconstitutionally invade the initiative power because (1) the Legislature possesses the power to invalidate existing local voter initiatives and to preclude the enactment of new voter initiatives, and (2) Senate Bill 10 merely takes the smaller step of allowing local legislative bodies to "override such initiatives upon a two-thirds vote."

III. The Appeal

Following the entry of judgment for the State, petitioners timely appealed.

DISCUSSION

On appeal, petitioners chiefly argue that Senate Bill 10, on its face, constitutes an unconstitutional affront to the power of local voters to enact local laws by initiative because section 65913.5 grants local legislative bodies limited discretion, on a parcel-by-parcel basis, to supersede local housing density caps- even those adopted by local voter initiative. Because a facial challenge to a statute's constitutionality focuses on the statute's text rather than its application in a particular case, "a facial challenge is generally ripe the moment the challenged [law] is passed." (Bronco Wine Co. v. Jolly (2005) 129 Cal.App.4th 988, 1034; Keystone Bituminous Coal Assn v. DeBenedictis (1987) 480 U.S. 470, 493-494; Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 218; Del Oro Hills v. City of Oceanside (1995) 31 Cal.App.4th 1060, 1076.) We therefore reject the State's threshold argument that petitioners' challenge is unripe.

A statute is unconstitutional on its face if it violates the pertinent constitutional provisions either "inevitably" or "'in the . . great majority of cases'" (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181; Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126); our Supreme Court has yet to "settle on a precise formulation" of the test for facial invalidity (T-Mobile West LLC v. City & County of San Francisco (2019) 6 Cal.5th 1107, 1117, fn. 6). Under either formulation, however, it is not enough to show that the statute "might operate unconstitutionally under some conceivable set of circumstances." (United States v. Salerno (1987) 481 U.S. 739, 745 (Salerno); Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90.) We presume that statutes are constitutional, and a party attacking the constitutional validity of a statute bears the burden of overcoming that presumption by "'"clearly, positively, and unmistakably"'" demonstrating the invalidity of the statute. (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 780 (Voters for Responsible Retirement).) We independently review whether a statute is unconstitutional (Vergara v. State of California (2016) 246 Cal.App.4th 619, 642), and hence review the trial court's ruling rather than its reasoning (Rutgard v. City of Los Angeles (2020) 52 Cal.App.5th 815, 825).

Because the parties' briefing focuses on specific sub-issues and often conflates what we view as distinct questions, we approach the issue of Senate Bill 10's constitutionality through a step-by-step, cascading analysis that, in our view, fully addresses the parties' arguments while also presenting a framework for addressing the constitutional challenges presented in this case. Specifically, we ask:

(1) When can our Legislature displace local laws affecting zoning and land use, including the local laws of charter cities?

(2) Has Senate Bill 10 displaced local laws setting housing density caps, which requires us to ask:

(a) Has Senate Bill 10 displaced those caps under the law governing preemption of local laws by state law?

(b) Has Senate Bill 10 satisfied the more exacting standard for preemption of local voter initiatives?

(3) Can our Legislature validly exercise its preemptive power by imbuing local legislative bodies with the discretion to decide whether to exercise that power on a parcel-by-parcel basis?

(4) Do earlier enacted voter initiatives constitute a preemptive exercise of the local legislative body's discretion under Senate Bill 10, such that the body lacks the power to supersede such initiatives?

I. When Can Our Legislature Displace Local Laws Affecting Zoning and Land Use, Including the Local Laws of Charter Cities?

The State of California is divided into 58 counties (Cal. Const art. XI, § 1); within those counties are currently 482 cities (id., art. XI, § 2). Our state's Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities. (Cal. Const., art XI,...