Supreme Court Review May Affect Many Public Housing Units

The state Supreme Court this week will review a case that, authorities say, could affect tens of thousands of public housing units planned for Los Angeles and other cities and counties throughout California.

The dispute centers on a state constitutional amendment--the only one of its kind in the nation--that was narrowly adopted by the voters in 1950, requiring local referendums to be held on low-rent public housing projects proposed by municipal officials.

At issue is how much information must be given to voters before they cast their ballots on a proposed project: Must they be told the specific site, cost and type of the development? Or merely the number of units planned for the whole community in future years?

The justices will hear arguments Tuesday in a dispute in which a group of Berkeley residents are challenging the construction of 75 housing units that were among proposals for 500 units approved in ballot measures in 1977 and 1981.

The foes of the project have asked the justices to overturn a state appellate decision finding that under the amendment, voters need only approve a project “in general.”

The challengers contend that it is unfair, if not impossible, to expect voters to fairly weigh the value of such proposals when they are not told specifically where the housing will be built, what the costs will be to taxpayers and whether the units are for families, the elderly or others.

“We’re entitled to know the sites, prospective costs and impact on the community,” said Susan Burnett Luten, a Berkeley attorney representing the plaintiffs in a suit against the city.

Cities and counties have improperly “stockpiled” voter-approved housing units for possible future use in indefinite circumstances, “patting voters on the head” but denying them the information they need to make intelligent choices, Luten said.

But the city of Berkeley, backed by a broad coalition of state and local officials, housing authorities and civil rights groups, argues that requiring municipalities to provide voters with detailed proposals would add new obstacles to the already difficult task of providing adequate public housing.

The planning, design, location and financing of a project would have to be determined at substantial cost before it goes to the voters--and all could be lost if the electorate then rejected the project, the city and its allies contend.

They are also concerned that requiring detailed proposals will encourage opposition to site specific projects and allow racial prejudice to play a role in housing referendums.

‘Not in My Back Yard’

“There’s an old acronym for this sort of thing--NIMBY--for ‘Not in My Back Yard,’ ” said Los Angeles Deputy City Atty. Dov Samuel Lesel, lawyer for a group of 14 municipalities backing the city of Berkeley in the case. “Even people who say they care about low-income housing really don’t want it in their own back yard.”

Requiring detailed proposals, Lesel said, “would allow opposition to polarize around a particular location and, especially in wealthier communities, would make it a lot easier to defeat them.”

Frances E. Werner of the National Housing Law Project, another group supporting the city, contends that an adverse ruling would make it even harder for California to compete with other states for already scarce federal assistance, just when the need for housing is growing.

“People on low incomes are routinely paying more than 50% of that income on rent,” Werner said. “With the cutbacks on federally assisted construction, the housing crisis is getting worse and homelessness is getting worse.”

The amendment at issue, an initiative known as Proposition 10, was placed on the fall, 1950, ballot after the state Supreme Court had held that voter approval was not required for the construction of low-rent public housing.

In highly charged campaign debates, backers of Proposition 10 said the amendment was needed to curb the “despotic” and “dictatorial” powers of municipal bureaucrats and the influence of “minority pressure groups.”

Opponents of the measure responded that it was a thinly veiled “scheme” to do away with public housing and so extreme that it would prevent emergency housing from being built “in the event of an atomic bomb attack or some other disaster.”

The measure passed by 50.6% of the vote and later withstood a legal challenge to its constitutionality that went all the way to the U.S. Supreme Court.

Twice--in 1974 and 1982--the Legislature sought to repeal the amendment but both times the voters rejected such proposals. Meanwhile, over the decades, voters have approved scores of projects throughout the state, most of them offered with few details, according to lawyers in the case.

In 1952, a referendum in Los Angeles on 10,000 units was turned down by the voters. But in 1973, 1977 and 1980, voters in that city approved a total of 30,000 units in a series of referendums. The projects contained no specific details and only a few restrictions--such as a requirement that units be distributed evenly among the city’s 15 council districts. Most of those units remain unbuilt, awaiting financing, officials said.

In the Berkeley case, five residents went to court in 1985 seeking to halt a $7-million, low-income housing project--financed mostly by federal funds--in which 75 units were to be erected on several sites in the city. Among other things, foes were concerned that the units would wipe out several school playgrounds, neighborhood parks and parking lots and ultimately prove more costly to local taxpayers than expected.

An Alameda County Superior Court rejected their contentions that the city had failed to provide sufficient detail about the project when it had come before the voters in previous referendums authorizing a total of 500 units.

A state Court of Appeal upheld the decision last July, concluding that the state Constitution, as amended through Proposition 10, “requires no more than general voter approval of public housing.”

Lawyers for the plaintiffs appealed the ruling to the state high court, saying that the case warranted review not only because of its importance to Berkeley but also its potential impact on the 70,000 or more low-rent units throughout California that have been approved by voters but not yet built.

See Clear Intent

The plaintiffs contend that the clear intent of the voters in 1950 was to protect their right to disapprove any specific project proposed by a city or county and that the voters are entitled to details in advance, not after the fact.

The Berkeley residents are being backed in a “friend of the court” brief by lawyers for the Pacific Legal Foundation, a conservative public interest group, who contend that requiring only general approval effectively prevents voters from learning the true costs of actual projects.

Although such projects are ordinarily heavily subsidized with federal funds, they still must be supported locally with increased public services--such as schools, sewers, streets and fire and police protection--while remaining largely exempt from local taxes, the legal foundation points out.

The city of Berkeley, however, staunchly defends its actions and has attracted broad support in “friend of the court” briefs.

Attorneys for the city said that in the complex process of preparing for public housing projects, authorities cannot wait until they have spent hundreds of thousands of dollars on site selection and design and then go to the voters.

State Atty. Gen. John K. Van de Kamp told the court that under federal regulations now, it would be “virtually impossible” for cities and counties to acquire federal financing for site acquisition and design before a project goes to the voters.

Thus, the attorney general said, if Berkeley loses this case it could “sound the death knell” for public housing projects in California, forcing communities to rely exclusively on privately constructed projects that are not covered under the amendment.