In AIDS Healthcare Foundation v. Bonta (2024) 101 Cal.App.5th 73, the Third District Court of Appeal affirmed the trial court’s judgment that Senate Bill 10 (SB 10), which allows local legislative bodies to supersede local housing density caps on a parcel-by-parcel basis, did not unconstitutionally interfere with the initiative power.

Background

Article II, section 11, of the California Constitution authorizes city and county voters to enact local laws through the voter initiative process. Generally, unlike laws enacted by a legislative body, laws enacted by voter initiative may only be altered by another vote of the electorate or in a manner specified in the text of the initiative measure.

SB 10, which the Legislature enacted in response to a “severe shortage of housing at all income levels in this state,” grants counties and cities discretion to supersede local housing density caps—even those adopted via the voter initiative process—on a parcel-by-parcel basis. For qualifying parcels, local legislative bodies may supersede density caps enacted by a local ordinance with a simple majority vote, and those enacted by a voter initiative with a supermajority, two-thirds vote.

Petitioners AIDS Healthcare Foundation and City of Redondo Beach filed a petition for writ of mandate seeking an injunction compelling the State of California to cease enforcement of SB 10 and a declaration that SB 10, on its face, unconstitutionally “eviscerates the fundamental protection against subsequent legislative amendment of initiatives without a vote of the people.”

The trial court concluded that SB 10 did not unconstitutionally impair the initiative power and, accordingly, denied the petition. Petitioners appealed.

Court of Appeal’s Decision

Employing a multi-step analysis, the Third District Court of Appeal affirmed the trial court’s decision.

First, the court considered the circumstances in which the Legislature can supersede local zoning and land use laws. The court explained that, generally, state laws generally have supremacy over conflicting local ordinances enacted by non-charter cities and counties. With respect to charter cities, however, any state laws concerning “municipal affairs” supersede conflicting ordinances enacted by charter cities only if the state law (1) pertains to subject matter of regional or statewide concern and (2) is reasonably related to resolving that concern. The court concluded that, given the statewide housing crisis and the reasonable connection between housing shortages and restrictive housing density caps, the circumstances permitted the Legislature to displace local zoning and land use laws by enacting SB 10.

Second, the court determined that SB 10 did in fact displace local laws that set housing density caps. The court explained that local housing density caps expressly prohibited actions authorized by SB 10 (i.e., exceeding the cap), and moreover, that density caps frustrated SB 10’s purpose of promoting higher density housing projects. With respect to local density caps enacted through the voter initiative process, the court explained that statutes may preempt local initiative measures so long as the Legislature clearly intended such an outcome. Accordingly, because SB 10 expressly granted local governments the authority to supersede both legislatively enacted and initiative-based density caps, the court held that SB 10 preempted both types of housing density cap.

Third, the court held that the Legislature’s approach of providing local legislative bodies the power to supersede local housing density caps on a parcel-by-parcel basis—as opposed to outright nullifying these caps statewide—was constitutional. In so holding, the court first pointed out earlier case law in which the California Supreme Court held that the Legislature may grant local legislative bodies discretion regarding local decisions while simultaneously preventing initiatives and local ordinances from impairing that discretion. Additionally, the court reasoned that SB 10’s parcel-by-parcel approach was more protective of the local initiative process than a statewide invalidation of all local housing density caps, especially because it did not prevent voters from passing housing density caps that would require a two-thirds vote by the local legislative body to exceed.

Fourth, the court held that SB 10 did not apply differently to housing density caps already in existence. The court pointed out the SB 10 did not include any exemption for existing density caps, and further reasoned that such an exemption would frustrate the legislative intent behind SB 10’s enactment by substantially limiting local legislative bodies’ discretion to supersede housing density caps.

Accordingly, the court concluded that the Legislature’s enactment of SB 10 did not violate the California Constitution.

– Adam Nir

In Vichy Springs Resort, Inc. v. City of Ukiah (2024) 101 Cal.App.5th 46, the First District Court of Appeal reversed the trial court’s judgment sustaining a demurrer to claims that a project to demolish an existing shooting range, and construct a new one, should have been subjected to CEQA review. In the published portion of the opinion, the court held that the claim raised by Petitioner Vichy Springs Resort, Inc. that Mendocino County improperly declined to exercise its regulatory authority over the project, was sufficient to state a CEQA cause of action. The court also held that completion of the project did not moot the CEQA claims.

Background

Ukiah Rifle and Pistol Club operates a shooting range in an unincorporated area of the County, on land that it leases from the City of Ukiah. When the Club sought to demolish the existing range and construct a new range, Vichy sued the City and County, alleging that both entities violated CEQA. According to Vichy’s petition for writ of mandate, the County erroneously determined that it had no regulatory authority over the project, and therefore improperly allowed the project to proceed without first completing CEQA review. Vichy similarly alleged that the City improperly determined that the project was not subject to CEQA. Vichy did not seek a preliminary injunction and the Club completed the project while the case was pending in the trial court.

The County demurred to Vichy’s CEQA cause of action, arguing that the County’s alleged failure to exercise its regulatory authority was not a “project” subject to CEQA. Additionally, the Club and the City demurred to the CEQA cause of action, arguing that it became moot when the Club completed the project. The trial court sustained the demurrers without leave to amend. Vichy appealed.

Court of Appeal’s Decision

The Court of Appeal reversed the trial court’s judgment. In the published portion of its opinion, the court held that the Petition properly alleged a violation of CEQA by the County and that the Project’s completion did not render Vichy’s CEQA cause of action moot.

CEQA claim was not moot after project completion

As a threshold matter, the court held that the CEQA claims were not moot because the petition alleged that some of the project’s environmental impacts could still be alleviated. The court noted that the petition included examples of post-completion measures that could mitigate the project’s alleged significant environmental impacts, such as developing a lead removal program, implementing a pollution prevention plan, limiting the hours and scope of shooting range operations, and requiring lead-free ammunition. Additionally, while acknowledging that it would have been preferable for Vichy to seek a preliminary injunction to halt the project, the court nevertheless concluded that Vichy’s failure to do so did not require a finding that the CEQA claims were moot.

The court distinguished other cases holding that completion of the project rendered CEQA claims moot, explaining that the petitioners in those cases did not adequately allege or demonstrate that post-completion modifications or mitigation measures could remedy the claimed CEQA violations.

County’s failure to exercise its regulatory authority could give rise to a CEQA violation

The court also held that the petition properly alleged a CEQA violation by the County. The County argued that its decision to not regulate the project did not rest on any provision of CEQA such that Vichy could properly sue the County “on the grounds of noncompliance” with CEQA’s statutory requirements. The court, however, concluded that the County’s proposed interpretation of CEQA was “overly formalistic,” as Vichy’s ultimate contention was that the County would have been required to comply with CEQA had it properly exercised its authority.

The court similarly rejected the County’s arguments that the petition did not describe a “project” for purposes of CEQA and that CEQA applies only to project approvals but not to governmental inaction. The court explained that the “project” at issue in the litigation was the shooting range demolition and construction—not the County’s alleged failure to regulate. Thus, because the County’s inaction allowed the project to proceed without environmental review that might have otherwise been required had the County exercised its authority over the project, Vichy properly alleged a CEQA violation by the County.

– Natasha Roland