Elected leaders in California are moving once again to ask voters to repeal Article 34 of the state constitution, which provides opportunities for Not In My Back Yard (NIMBY)-inspired segregation. Article 34, passed into law by referendum in 1950, requires all publicly funded housing development to be approved by voters. Since being added to the constitution, Article 34 has contributed to income segregation in California with a disparate impact experienced by people of color. State Senator Ben Allen (D) has introduced legislation to put the repeal before voters in November 2020. This will not be the first time, though, that repealing Article 34 has gone before voters; repeal efforts have failed on three previous ballots, most recently in 1993.
It is easy to think of Article 34 as a relic of America’s segregationist past, but the U.S. Supreme Court has asserted that the constitutional provision is about expanding the democratic process and protecting local control. The Supreme Court opinion that upheld Article 34 in 1971 acknowledged that it puts low-income people at a disadvantage but stated that no one race was being singled out. The court argued that the federal government will not have a role in local land-use decisions and noted that voters will not necessarily use their approval power to veto proposed construction. Indeed, local governments that have proposed building publicly funded housing to the voters prevail in 80% of ballots, according to the California Department of Housing and Community Development.
Over time, the state has passed legislation to weaken Article 34, such as requiring local governments only to get approval for broad plans to build publicly funded housing rather than having to go to the voters for each individual project. Still, local governments and affordable housing developers absorb significant planning and legal costs to develop projects that would avoid triggering required voter approval. It is important to note that developments using only low-income housing tax credits, whether state or federal, are not governed by Article 34.
Los Angeles will soon confront the limitations established by Article 34. In 2008, voters approved a plan for up to 3,500 publicly funded housing units per city council district, and soon the city will likely need to go to voters to approve changes to the plan. Los Angeles Mayor Eric Garcetti (D) is working with the legislature instead to eliminate Article 34 permanently, an outcome supported by fair housing advocates throughout the state.