Constitutional Analysis of State-Mandated Zoning Changes and why California Building Laws are Unconstitutional
California's legislature has gone nuts! Law after law has been passed totally blowing up any ability of a city regulate growth. Builders and housing activists are suing cities forcing them to approve mega projects. Giant apartment buildings on crowded streets. Fire danger is soaring. Buildings are going up without adequate water, fire, police protection and without any regard to schools or safe places for children to play.
Watch Daniel Horowitz' Video Explaining the Unholy Alliance that is Destroying Communities
These laws are deliberately designed to destroy suburbs and to turn all areas near central cities such as San Francisco, California into urban jungles. Developers can build and sell condos without paying for fire protection, without caring about huge traffic jams and without worrying about the destruction of the very towns where they are building.
These laws are unconstitutional but the cost of fighting these laws is so high that the cities keep capitulating. The legal war machine funded by builders, activists and provisions in the law creating huge financial penalties for cities that lose lawsuits - all destroy the ability of a city to protect its citizens.
Los Angeles is going to be the victim of these laws. People can't afford to rebuild and where people once had houses you are now going to see housing projects and concrete jungles.
Here are just some of the many reasons these laws cannot survive a constitutional challenge.
Police Power and Zoning Authority
Zoning laws are a manifestation of the police power granted to states and local governments. This power allows municipalities to regulate land use within their jurisdictions to promote the public welfare (Sacramentans for Fair Planning v. City of Sacramento, 37 Cal.App.5th 698 (2019)). The California Constitution, for example, grants cities and counties the authority to make and enforce local ordinances and regulations that are not in conflict with general laws (West's Ann.Cal.Const. Art. 11, § 7). This broad authority is subject to constitutional limitations, including the requirement that zoning regulations must be reasonably necessary and related to the public welfare (Friends of Davis v. City of Davis, 83 Cal.App.4th 1004 (2000)).
Constitutional Standards for Zoning Laws
Zoning laws are presumed to be constitutional, and the burden is on the challenger to prove otherwise (City of Los Angeles v. Gage, 127 Cal.App.2d 442 (1954)). Courts generally uphold zoning regulations if they are not arbitrary or unreasonable and if they have a rational basis related to public health, safety, morals, or general welfare (Litton Intern. Development Corp. v. City of Simi Valley, 616 F.Supp. 275 (1985)). For instance, in Litton Intern. Development Corp. v. City of Simi Valley, the court held that zoning decisions are presumptively constitutional and will not be set aside unless they are "clearly arbitrary and unreasonable" (Litton Intern. Development Corp. v. City of Simi Valley, 616 F.Supp. 275 (1985)). Similarly, in Shelton v. City of College Station, the court emphasized that zoning decisions must have a rational basis and rejected the notion that heightened scrutiny should apply merely because the state exercises its zoning power in a quasi-judicial manner (Shelton v. City of College Station, 780 F.2d 475 (1986)).
State Law and Local Zoning Authority
While state laws can set minimum standards for local zoning practices, they generally do not grant specific zoning powers to local governments. Instead, they reserve the maximum degree of control over local zoning matters to cities and counties (Taschner v. City Council, 31 Cal.App.3d 48 (1973)). For example, California Government Code § 65850 allows local legislative bodies to adopt ordinances regulating various aspects of land use, such as building heights, lot sizes, and land use intensity (West's Ann.Cal.Gov.Code § 65850). However, any amendments to zoning ordinances must follow specific procedural requirements (West's Ann.Cal.Gov.Code § 65853).
Judicial Review of Zoning Laws
Courts are generally reluctant to interfere with local zoning decisions unless there is a clear violation of constitutional principles. In Associated Home Builders etc., Inc. v. City of Livermore, the court noted that zoning laws affecting population growth and density are typically upheld unless they lack a compelling state interest or are not the least restrictive means to achieve that interest (Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582 (1976)). Additionally, in Construction Industry Ass'n of Sonoma County v. City of Petaluma, the court recognized that local land use decisions can impact regional needs but emphasized that it is the state legislature's role to address any conflicts between local and regional interests (Construction Industry Ass'n of Sonoma County v. City of Petaluma, 522 F.2d 897 (1975)).
Unconstitutional Takings and Zoning Changes
A state law mandating a city to adopt less restrictive zoning could also implicate the Takings Clause of the Fifth Amendment, which prohibits the government from taking private property for public use without just compensation (U.S. Const. amend. V). The U.S. Supreme Court has recognized that zoning laws can constitute a regulatory taking if they go "too far" in restricting a property owner's use of their land (Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)). A regulatory taking may occur when a regulation denies a landowner all economically viable use of their property (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)) or when it fails to substantially advance a legitimate state interest and imposes disproportionate burdens on property owners (Nollan v. California Coastal Commission, 483 U.S. 825 (1987)).
In the context of state-mandated zoning changes, a city or property owner could argue that a forced relaxation of zoning restrictions constitutes a taking if it significantly diminishes property values or interferes with distinct investment-backed expectations. For example, in Dolan v. City of Tigard, the Supreme Court held that land use regulations must be roughly proportional to the public interest they seek to advance to avoid constituting a taking (Dolan v. City of Tigard, 512 U.S. 374 (1994)). If a state law compels a city to rezone in a way that undermines the city's ability to protect public welfare (e.g., by allowing incompatible land uses that harm community safety or character), it could be challenged as an unconstitutional taking.
Moreover, the Takings Clause intersects with the police power analysis. While zoning is a valid exercise of police power, a state law that overrides local zoning to impose less restrictive standards might be deemed unreasonable if it lacks a sufficient public purpose or fails to balance the interests of affected property owners. Courts applying the Penn Central framework evaluate takings claims by considering (1) the economic impact of the regulation, (2) its interference with investment-backed expectations, and (3) the character of the government action (Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)). A state law that forces a city to rezone in a way that disproportionately harms certain property owners or lacks a clear public benefit could fail this test.
The imposition of massive building projects that demand huge infrastructure improvements force cities to fund developers. This is an unconstitutional “unfunded mandate”. The website www.federalism.org describes unfunded mandates this way.
Unfunded mandates are rules and constraints imposed by legislative, executive, or judicial actions of one level of government on other sectors in the economy. Although mandates can be used to refer to regulations imposed on private profit and nonprofit entities, the term was coined to describe regulations imposed by one government on other governments, whether it be federal mandates applied to state and local governments or state mandates applied to their local jurisdictions. Mandates can consist of either affirmative obligations to take action on a policy problem, such as the treatment of municipal sewage, or a constraint or prohibition against certain policy actions, such as the recent federal preemption of state taxation of Internet access fees.
“Mandates” is a broad term that actually covers several distinct tools used to regulate activities of other levels of government. Mandates are most often viewed as direct orders where one government orders another to comply with policy standards, such as federal clean water standards, with the penalty of civil or criminal sanctions. However, when governments regulate one another, other strategies have been deployed. Grants-in-aid have become a widely used vehicle to project mandates; recipients of funding are bound to follow a wide range of rules as a condition for obtaining the grant. Federal courts have ruled that mandates attached to grants are less coercive and therefore more permissible than direct orders because technically states or localities can choose not to apply for funding, but for major grant programs this is not a practical option. Preemption is another strategy where federal or state governments assert a regulatory policy that prevents other levels of government from pursuing their own regulatory schemes in that area. In some cases, the preemption is complete and prohibitive of any related action by other governments, while in other cases the preemption is partial, and other governments may continue to play a role as long as their standards and policies are consistent with minimum standards.
Conclusion
A state law that forces a city to change its zoning to be less restrictive could be deemed unconstitutional if it conflicts with the city's police power, fails to meet the constitutional standards of reasonableness and rationality, or constitutes a regulatory taking under the Fifth Amendment. Courts will uphold such laws if they are reasonably related to public welfare and not arbitrary or unreasonable. However, local governments retain significant authority to regulate land use within their jurisdictions, subject to constitutional limitations. Any challenge to such a state law would need to demonstrate that it either exceeds the state's police power, lacks a rational basis, or effects a taking without just compensation.