Grappling with Article 34 of the California Constitution

Article 34 of the California state constitution is a provision that requires new “low-rent housing projects” that are “developed, constructed, or acquired” by public bodies be authorized by a public vote. Originally passed in the 1950s, Article 34 continues to exacerbate the state’s housing affordability crisis by complicating the process of developing affordable housing, or blocking such proposals altogether.

So how did Article 34 come into being? What does it actually say and do? How are cities working around it? What are the prospects for its repeal? This new report from AHLA policy director David Barboza goes into the details, but here are a few main points:

Article 34 was passed after a legal dispute over a proposed federally-funded public housing project in the city of Eureka. Local residents opposed the project and attempted to stop it by passing a referendum. However, the California Supreme Court found in favor of the city, reasoning that a referendum can only apply to a legislative act, and that the city public housing authority’s application for federal money was an administrative act. In the wake of that defeat, public housing opponents changed tactics and organized a campaign to amend the California constitution, allying with the real estate industry to run a successful campaign that stoked racist fears about integration and socialism. The article reads:

“No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election.”

A Supreme Court challenge to the law was unsuccessful: in 1971, the SCOTUS majority held that Article 34 was constitutional because it does not explicitly discriminate on race; so in 1975 California passed the Public Housing Election Implementation Law.

This law creates a number of state-level workarounds to avoid triggering Article 34 elections. The Public Housing Project Law elaborates on Article 34’s definition of a “low rent housing project” by defining a series of project types that are excluded from this definition and thus not subject to the referendum requirement. The law also elaborates on the definition of “persons of low income,” updating it to refer to the income limits in the federal Section 8 Housing Choice Voucher program. Finally, it excludes some activities from the concept of “develop, construct, or acquire” as used in Article 34.

At the local level, cities have found a few ways to work around Article 34. LA voters approved Proposition B in 2008, which authorized up to 3,500 affordable housing units in each of the city’s 15 council districts, for a total of 52,500 units. Some districts are now close to hitting their caps; so last year the voters approved the AHLA-endorsed Proposition LH, which raised the caps.

Santa Monica voters approved Proposition I in 1998, which authorizes the city to develop, construct, or acquire a number of low-low rent housing units not to exceed .5% of the total number of housing units in the city. Unused capacity is carried forward for up to 3 years.

In Long Beach and Pasadena, the city works around Article 34 by investing in mixed-income projects, which are exempt from Article 34 because they are privately owned developments where fewer than 49% of the units are affordable to lower income households.

Unfortunately, previous attempts to remove Article 34 from the state constitution or amend it have failed at the ballot box, but a full repeal is headed back to the ballot in the next statewide general election, which is the March 2024 primary election.

Read the full report here: