Justices Seem Divided in Low-Rent Housing Case

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Times Staff Writer

Members of an apparently divided state Supreme Court expressed conflicting concerns Tuesday over how much information voters must be provided in local referendums on proposed low-rent public housing projects.

Some justices seemed convinced that the electorate should at least be told where within the community such housing would be located. But other court members appeared uneasy about the impact of such specific requirements on the tens of thousands of units awaiting construction throughout California.

The justices, hearing arguments in a far-reaching Berkeley case, were told by an attorney for a group of taxpayers that under the state Constitution, city and county officials must put the cost, type and location of a proposed project on the ballot.


Such information was “nothing more than what is already required” when municipal officials seek the funding they need from the federal government, said Susan Burnett Luten, a lawyer for the plaintiffs in a suit challenging a low-rent project in Berkeley.

City Argument

But attorneys backing the city of Berkeley argued that voters need only approve public housing “in general,” and that a ruling to the contrary would upset practices used for decades and erect new and difficult barriers to local projects.

“In hundreds of communities like Berkeley, voters have said, ‘We need low-income housing; please go out and try to get some money and develop it,’ ” Berkeley Deputy City Atty. Marjorie Gelb said.

Under review is an amendment to the Constitution, adopted by voters in 1950, requiring local referendums on city- and county-sponsored low-rent public housing projects. The provision says no such project shall be “developed, constructed or acquired” without voter approval.

In the case before the court, Berkeley officials, following a widespread practice in California, obtained voter approval in 1977 and 1981 for 500 units to be built at unspecified sites sometime in the future.

In 1984, the city unveiled a plan to build 75 of the units at several locations. The plan immediately drew a court challenge from foes who contended that a new election should be held on the specific project itself.


Expressed Doubt

In Tuesday’s hourlong hearing, some of the justices expressed doubt that city authorities should be allowed to “stockpile” housing units that were only generally authorized by the electorate and to use them later at the officials’ discretion.

Justice Edward A. Panelli said that the Constitution required a referendum on a housing “project,” rather than a housing “policy.”

“Until you have some idea of where the site is, you have nothing for the electorate to respond to,” Panelli said. “. . . It seems to me voters should have this information.”

Similarly, Justice Stanley Mosk pressed Gelb on why Berkeley voters should not be told whether a project was planned for the community’s shoreline, the hills, the downtown or the area surrounding UC Berkeley?

“Why shouldn’t (voters) know at least in general where the site would be?” he asked.

More Questions

Gelb replied that if voters did not like a proposal because it lacked details, “they can still vote it down.” Meanwhile, she said, they should be allowed to respond to community needs and approve public housing in general, permitting officials to work out the details later. Other justices raised questions about the practical implications of ruling against the city in this case.

Lawyers have noted that more than 70,000 housing units have been approved in California but, largely because of a lack of federal funding, have not yet been built. A decision against Berkeley could cast doubt on the validity of any referendum where voters were denied details of the units to be built.


Justice John A. Arguelles voiced concern to attorney Luten about the impact of a ruling against the city on other proposed projects “in the pipeline” or projects “already approved over the last 37 years?”

“That wouldn’t cause any problem,” Luten said, suggesting that when officials are ready to apply for funding for an actual project, they could provide the details to voters at that time. In effect, she said, the voters would be receiving much the same information on sites, costs and types of housing that a city council would use in applying for federal funds.

Lost Opportunity?

Justice Marcus M. Kaufman raised questions over whether delay in awaiting voter approval could cost cities the opportunity to acquire scarce federal funding. There were “no indications” that would happen, Luten said.

Dov Samuel Lesel, a Los Angeles deputy city attorney representing a group of cities supporting Berkeley, warned that requiring new referendums on previously authorized housing units could prove prohibitively expensive.

In Los Angeles, he said, about 30,000 units have been generally authorized by voters but remain unbuilt. Housing officials are preparing to apply for federal funds to build about two dozen units.

Lesel said that placing a new referendum on the county ballot would cost more than $600,000 and that a separate, special election on the units would cost more than $1.2 million. That, he said, “is as much as the cost of building the housing itself.”


The justices are expected to rule in the case by late this year.