Aug 24 2022

Article 34 of the State Constitution: Requires a Piedmont Vote on Proposed Housing

Article 34 of the state Constitution prohibits the development of a low-income affordable housing project with state or local public financing or assistance unless and until a majority of the voters of the jurisdiction has approved it.

Article 34 of the California Constitution requiring voter approval of proposed development has not been presented to Piedmonters as an important voter law regarding the proposed Housing Element plan.

According to the rule of law, voters have rights regarding zoning and use changes as proposed in the Housing Element.  Workarounds to stop Piedmont citizens from voting defeats the Piedmont rule of law and City Charter.

California Article 34 reinforces the role of Piedmont voters spelled out in the Piedmont City Charter fulfilling the rule of law in Piedmont and throughout the state. 

The council enthusiasm for swift adoption of the new Housing Element did not include a citizen vote in the schedule, ignoring Piedmont ordinances, the Piedmont City Charter and the state Constitution impeding Piedmont voters from voting on the significant zoning changes proposed.  

The Piedmont City Council has a right and responsibility by Piedmont and California laws to devise housing and development proposals in the Piedmont General Plan, including the Housing Element.  The City Council will ask the state to approve the Housing Element plans.  However, most importantly, if the state approves Piedmont’s Housing Element and the Housing Element requires zoning changes and reclassifications per Piedmont laws, as the current Housing Element proposal does, then the zoning changes per Piedmont laws must be approved by Piedmont voters prior to implementation. 

Various workarounds have been presented regarding zoning to avoid seeking approval of Piedmont voters at a general or special election.

If Piedmont voters reject the City Council zoning changes, then the City Council must, according to Piedmont laws, change the Housing Element to adhere to Piedmont laws by gaining Piedmont voter approval of zoning changes. 

In Los Gatos, a ballot measure has been qualified for the ballot to amend their City Council’s approved General Plan and place the matter before voters.  Piedmont has the assumed protection of Piedmont and state laws requiring approval of proposed zoning changes, if the City Council adheres to City and state laws. 

Does the Piedmont City Council trust voters to act on proposed zoning changes per the Piedmont City Charter, Piedmont Zoning Ordinances, and Article 34 of the state Constitution?

Where is an official written legal opinion regarding voter rights on the Piedmont proposed zoning changes and the Housing Element indicating compliance with the Piedmont City Charter, Piedmont Zoning Ordinances, and Article 34 of the state Constitution ?



6 Responses to “Article 34 of the State Constitution: Requires a Piedmont Vote on Proposed Housing”

  1. It’s good for someone to point out the legal environment in which affordable housing projects are placed under California law. Oddly, one might not learn these things through following the city’s pending HE process.

    To their credit, the cities of Oakland and Berkeley, who follow the law, are placing Article 34, low rent housing project approvals, on this November ballot.

    Measure N in Berkeley will allow up to 3000 units, if passed. And Measure Q in Oakland will allow up to 13,000 units if passed. Piedmont could be more forthright in what it tells its public.

  2. I guess this means that the Council’s “outside counsel,” who wrote a client pleasing “opinion” saying there was no need for a vote, never read the State Constitution?

  3. It’s time to send the Council and “outside counsel” packing!

  4. Just to be clear, Article 34 provides: “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.”

    The State Dept of Housing & Community Development’s guidance on Article 34 and the meaning of “developed, constructed or acquired” can be found at

    Editors Note: Language within Article 34 states:
    “For the purposes of this Article the term “state public body” shall mean this State, or any city, city and county, county, district, authority, agency, or any other subdivision or public body of this State.”

  5. To save others from clicking on the link in Rick’s post, I guess this is the relevant HCD text:

    State Public Body” Article 34 itself defines “state public body” as the state, or any city, city and county, county, district, authority, agency, or any other subdivision or public body of Article 34, section 1, of the state Constitution.

    “Low Rent Housing Project” The Legislature has provided guidance with respect to conditions 2) and 3) in the Public Housing Election Implementation Law (Health & Saf. Code, §§ 37000-37002). Health and Safety Code section 37001 lists a number of project types that are not considered “low rent housing projects.” The most typical exemption is subdivision (a)(1) which exempts projects that receive no property tax exemption, other than the welfare exemption, and in which no more than 49% of the units will be occupied by persons of low income.

    “Develop, Construct, or Acquire” The meaning of the phrase “develop, construct, or acquire” was analyzed by the California Supreme Court in California Housing Finance Agency v. Elliott (1976) 17 C.3d 575 (“Elliott”). In Elliott, the Court found that CalHFA’s regulatory agreement was so extensive that CalHFA became a co-developer of the project. Subsequent to Elliott, the Legislature provided guidance as to governmental activities that do not constitute development, construction or acquisition for purposes of Article 34. (See Health & Saf. Code, § 37001.5.)
    Because of the detailed nature of HCD’s regulatory agreements for HOME, Serna and MHP, it is HCD’s opinion that units assisted by these programs are “developed” by HCD within the meaning of Article 34 pursuant to Elliott.

    So if the state actor ( in this case the city) co-develops with another agency and 51% or more of the units are not low income, then a vote is not required (the exemption is granted)? I thought the canyon sites totaled over 50% low income units. Not an attorney here so maybe I’m missing something.

  6. Why do we have to learn the basic applicable legal framework for affordable housing projects from an online newsletter, not from the city and their half million $ plus consultants?

    Thanks PCA, Rick and Garrett for your research.

    So, we’ve now learned that a majority low rent project will require a public vote.

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