AIDS Healthcare Foundation v. Bonta CA2/2

Filed 3/28/24 AIDS Healthcare Foundation v. Bonta CA2/2
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

AIDS HEALTHCARE B321875
FOUNDATION et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
21STCP03149)
v.

ROB BONTA, as Attorney
General, etc., et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.

Michael W. Webb, City Attorney; Strumwasser & Woocher,
Beverly Grossman Palmer and Julia Michel for Plaintiffs and
Appellants.
 Law Offices of Stuart M. Flashman and Stuart M.
Flashman for Livable California and Thousand Friends of
Martinez as Amici Curiae on behalf of Plaintiffs and Appellants.

Rob Bonta, Attorney General, Thomas S. Patterson,
Assistant Attorney General, Benjamin M. Glickman and Seth E.
Goldstein, Deputy Attorneys General, for Defendants and
Respondents.

******
In response to a “severe shortage of housing at all income
levels in this state,” our Legislature enacted Senate Bill No. 10
(2021-2022 Reg. Sess.) (Senate Bill 10), which grants counties
and cities some discretion, on a parcel-by-parcel basis, to
supersede local housing density caps, even if those caps had been
adopted by voter initiative. (Gov. Code, § 65913.5; Stats. 2021,
ch. 163, § 1.)1 Does this legislation violate the initiative power
enshrined in article II, section 11 of the California Constitution?
We conclude that it does not. We so conclude because the
housing shortage is a matter of statewide concern, because
Senate Bill 10 conflicts with (and hence preempts) local
initiatives that make housing density caps mandatory, and
because Senate Bill 10’s more narrowly tailored mechanism of
cloaking counties and cities in the mantle of state preemptive
authority so that they may decide whether to supersede a local
density cap on a parcel-by-parcel basis—rather than effecting a
wholesale invalidation of all local density caps in every county
and city—is not constitutionally problematic. We accordingly

1 All further statutory references are to the Government
Code unless otherwise indicated.

2
reject the facial challenge to the constitutionality of Senate Bill
10, and affirm the trial court’s order denying the petition for a
writ of mandate.
FACTS AND PROCEDURAL BACKGROUND
I. Senate Bill 10, On Its Face
By its plain text, Senate Bill 10 authorizes local legislative
bodies, including those of “charter cities,” to “adopt an ordinance
to zone a parcel for up to 10 units of residential density per
parcel” as long as (1) “the parcel is located in” either (a) “[a]
transit-rich area,” or (b) “[a]n urban infill site”; (2) the parcel is
not located in “a very high fire hazard severity zone”; and (3) the
local legislative body “find[s] that the increased density . . . is
consistent with [its] obligation to affirmatively further fair
housing.” (§ 65913.5, subds. (f), (a)(1), (a)(4)(A) & (b)(3); see id.,
subds. (e)(2) & (e)(3) [defining “[t]ransit-rich area” and “[u]rban
infill site”].) What is more, Senate Bill 10 empowers legislative
bodies to enact such parcel-specific zoning ordinances
“[n]otwithstanding any local restrictions” on housing density
limits, whether those limits were enacted by ordinance or
adopted by local voter initiative, except that Senate Bill 10 does
not empower them to supersede “initiative[s] that designate[]
publicly owned land as open-space land . . . or for park or
recreational purposes.” (Id., subds. (a)(1) & (a)(4)(B).) In other
words, Senate Bill 10 grants local legislative bodies discretion
whether to supersede local caps on housing density: It takes a
simple majority to supersede a housing density cap enacted by a
local ordinance, but a supermajority, two-thirds vote to supersede
a cap adopted by a local voter initiative. (Id., subd. (b)(4).)

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 Section 65913.5 is a temporary measure; it sunsets on
December 31, 2028. (Id., subd. (a)(2).)2
II. This Lawsuit
Six days after the Governor signed Senate Bill 10 into law,
AIDS Healthcare Foundation—a nonprofit organization which
“has been engaged in” the initiative process in California for
decades and “expended financial resources” lobbying to remove
the initiative-override provisions of Senate Bill 10—filed a
petition for writ of mandate against the State of California and
its Attorney General (collectively, the State). The City of
Redondo Beach, whose voters had previously adopted an
initiative curtailing their city council’s power to enact parcel-
specific ordinances allowing for higher housing density without
voter approval, joined as an additional petitioner in the operative
first amended petition. That petition seeks an injunction
commanding the State to cease enforcement of Senate Bill 10 as
well as a declaration that its provisions granting local legislative
bodies the discretion to supersede housing density caps in local
initiatives “eviscerate[] the fundamental protection against
subsequent legislative amendment of initiatives without a vote of
the people.”
Following briefing on the petition and a hearing, the trial
court issued a 20-page decision denying the writ of mandate
petition and upholding Senate Bill 10 as a constitutionally valid

2 Though not pertinent to the challenge before us, Senate Bill
10 generally allows—with some exceptions—the local legislative
body to bypass the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.) by declaring that an
ordinance zoning for high-density housing under its auspices does
“not constitute a ‘project’ for purposes” of CEQA. (Gov. Code, §
65913.5, subd. (a)(3); but see id., subd. (c).)

4
exercise of the Legislature’s power. After concluding petitioners’
facial challenge to Senate Bill 10 was ripe, the court ruled that
section 65913.5 did not unconstitutionally invade the initiative
power because (1) the Legislature possesses the power to
invalidate existing local voter initiatives and to preclude the
enactment of new voter initiatives, and (2) Senate Bill 10 merely
takes the smaller step of allowing local legislative bodies to
“override such initiatives upon a two-thirds vote.”
III. The Appeal
Following the entry of judgment for the State, petitioners
timely appealed.
DISCUSSION
On appeal, petitioners chiefly argue that Senate Bill 10, on
its face, constitutes an unconstitutional affront to the power of
local voters to enact local laws by initiative because section
65913.5 grants local legislative bodies limited discretion, on a
parcel-by-parcel basis, to supersede local housing density caps—
even those adopted by local voter initiative. Because a facial
challenge to a statute’s constitutionality focuses on the statute’s
text rather than its application in a particular case, “a facial
challenge is generally ripe the moment the challenged [law] is
passed.” (Bronco Wine Co. v. Jolly (2005) 129 Cal.App.4th 988,
1034; Keystone Bituminous Coal Assn. v. DeBenedictis (1987) 480
U.S. 470, 493-494; Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 218; Del Oro Hills v.
City of Oceanside (1995) 31 Cal.App.4th 1060, 1076.) We
therefore reject the State’s threshold argument that petitioners’
challenge is unripe.
A statute is unconstitutional on its face if it violates the
pertinent constitutional provisions either “inevitably” or “‘in the .

5
. . great majority of cases’” (Pacific Legal Foundation v. Brown
(1981) 29 Cal.3d 168, 180-181; Guardianship of Ann S. (2009) 45
Cal.4th 1110, 1126); our Supreme Court has yet to “settle on a
precise formulation” of the test for facial invalidity (T-Mobile
West LLC v. City & County of San Francisco (2019) 6 Cal.5th
1107, 1117, fn. 6). Under either formulation, however, it is not
enough to show that the statute “might operate
unconstitutionally under some conceivable set of circumstances.”
(United States v. Salerno (1987) 481 U.S. 739, 745 (Salerno);
Rental Housing Owners Assn. of Southern Alameda County, Inc.
v. City of Hayward (2011) 200 Cal.App.4th 81, 90.) We presume
that statutes are constitutional, and a party attacking the
constitutional validity of a statute bears the burden of
overcoming that presumption by “‘“clearly, positively, and
unmistakably”’” demonstrating the invalidity of the statute.
(Voters for Responsible Retirement v. Board of Supervisors (1994)
8 Cal.4th 765, 780 (Voters for Responsible Retirement).) We
independently review whether a statute is unconstitutional
(Vergara v. State of California (2016) 246 Cal.App.4th 619, 642),
and hence review the trial court’s ruling rather than its
reasoning (Rutgard v. City of Los Angeles (2020) 52 Cal.App.5th
815, 825).
Because the parties’ briefing focuses on specific sub-issues
and often conflates what we view as distinct questions, we
approach the issue of Senate Bill 10’s constitutionality through a
step-by-step, cascading analysis that, in our view, fully addresses
the parties’ arguments while also presenting a framework for
addressing the constitutional challenges presented in this case.
Specifically, we ask:

6
 (1) When can our Legislature displace local laws
affecting zoning and land use, including the local laws of charter
cities?
(2) Has Senate Bill 10 displaced local laws setting
housing density caps, which requires us to ask:
(a) Has Senate Bill 10 displaced those caps under
the law governing preemption of local laws by state law?
(b) Has Senate Bill 10 satisfied the more exacting
standard for preemption of local voter initiatives?
(3) Can our Legislature validly exercise its preemptive
power by imbuing local legislative bodies with the discretion to
decide whether to exercise that power on a parcel-by-parcel
basis?
(4) Do earlier enacted voter initiatives constitute a
preemptive exercise of the local legislative body’s discretion
under Senate Bill 10, such that the body lacks the power to
supersede such initiatives?
I. When Can Our Legislature Displace Local Laws
Affecting Zoning and Land Use, Including the Local Laws
of Charter Cities?
The State of California is divided into 58 counties (Cal.
Const., art. XI, § 1); within those counties are currently 482 cities
(id., art. XI, § 2). Our state’s Constitution grants state laws
enacted by our Legislature supremacy over nearly all ordinances
adopted by the more local government entities such as counties
and cities. (Cal. Const., art XI, § 7 [“A county or city may make
and enforce within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws”
(italics added)].)

7
 But there is a wrinkle: Our Constitution grants counties
and cities the right to operate as “charter counties” or “charter
cities,” if they so choose. (Cal. Const., art. XI, § 3(a).) Status as a
charter county or charter city grants those local entities the
power of “home rule,” and hence greater autonomy to enact laws
vis-à-vis the state. (Cal. Const., art. XI, §§ 3(a), 4(g) [charter
counties], 5(a) [charter cities]; Baggett v. Gates (1982) 32 Cal.3d
128, 135-136 (Baggett).) Thus, our Legislature’s power to
supersede local laws depends on whether the local law was
adopted by a charter county or city. A state law supersedes
ordinances adopted by a non-charter county or city upon a
showing that the two “conflict” (Cal. Const., art. XI, § 7; Sherwin-
Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897
(Sherwin-Williams)), but a state law supersedes an ordinance
enacted by a charter city3 as to “municipal affairs” only if the two
conflict and (1) “the subject matter of the [state] law is of
statewide” or “regional” “concern” (Professional Fire Fighters, Inc.
v. Los Angeles (1963) 60 Cal.2d 276, 292; Committee of Seven
Thousand v. Superior Court (1988) 45 Cal.3d 491, 500, 505, 510

3 We focus on the rules governing charter cities because land
use decisions are typically addressed by cities and because
Senate Bill 10 purports to supersede only the laws of charter
cities, but not charter counties.
A state law does not supersede an ordinance enacted by a
charter county because a charter county’s ordinances are deemed
to be “the law of the [s]tate and [to] have the force and effect of
legislative enactments.” (Cal. Const., art. XI, § 3(a); Holmgren v.
County of Los Angeles (2008) 159 Cal.App.4th 593, 601.) As to
matters of employee compensation, a charter county’s law
supersedes state law. (Cal. Const., art. XI, § 4(g); Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60
Cal.App.5th 327, 338.)

8
(Committee of Seven Thousand); DeVita v. County of Napa (1995)
9 Cal.4th 763, 783-784 (DeVita); City of Santa Clara v. Von
Raesfeld (1970) 3 Cal.3d 239, 245-246 (Von Raesfeld)); and (2) the
state law “is reasonably related to [the] resolution” of that
concern (California Federal Savings & Loan Assn. v. City of Los
Angeles (1991) 54 Cal.3d 1, 17; City of Los Angeles v. California
(1982) 138 Cal.App.3d 526, 533 (City of Los Angeles) [state law
may “impinge upon local control only to the limited degree
necessary to further legitimate state interests”]).4
Whether the subject of a state law is a matter of statewide
or regional concern is ultimately a question for the courts.
(Bishop v. San Jose (1969) 1 Cal.3d 56, 63, overruled on another
ground in Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021)
11 Cal.5th 1118.) In addressing this question, a state law is more
likely to be one of statewide or regional concern if (1) the law’s
subject has been traditionally regulated at the state rather than
local level, bearing in mind that what constitutes a statewide
concern can evolve over time “in response to changing conditions
in society” (Committee of Seven Thousand, supra, 45 Cal.3d at p.
505; Pacific Tel. & Tel. Co. v. City & County of San Francisco
(1959) 51 Cal.2d 766, 771; Von Raesfeld, supra, 3 Cal.3d at p.
246); (2) the law is one of “broad general application” rather than
“narrow and particularized” (State Building & Construction
Trades Council of California v. City of Vista (2012) 54 Cal.4th

4 There is an exception to this rule: Ordinances adopted by a
charter city addressing a variety of topics involving the
organization of the city’s officers, elections, police force, and
issues of compensation are even more insulated from state
oversight. (Cal. Const., art. XI, § 5(b).) Because Senate Bill 10
does not implicate any of these topics, this exception is irrelevant.

9
547, 564); or (3) our Legislature has declared the law to entail
issues of statewide concern, as such a declaration—while not
dispositive—is entitled to “great weight” (Vista, at p. 565; Bishop,
at p. 63). Close questions are to be resolved in favor of the
validity of the state law. (Baggett, supra, 32 Cal.3d at p. 140.)
Our Legislature in enacting Senate Bill 10 affirmatively
declared that the “provision of adequate housing, in light of the
severe shortage of housing at all income levels in this state, is a
matter of statewide concern.” (§ 65913.5, subd. (f).) Petitioners
did not attack this declaration before the trial court, but they—
and amici curiae Livable California and Thousand Friends of
Martinez (amici curiae)—do so for the first time on appeal.
(Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [“‘issues raised
for the first time on appeal which were not litigated in the trial
court are waived’”].) Because the issue is squarely presented, we
will overlook the waiver.
We hold that the shortage of housing in California
addressed by Senate Bill 10 is a matter of statewide concern, and
that the statute’s grant of discretion to local legislative bodies to
supersede locally enacted housing density caps is reasonably
related to addressing that concern.
We reach this conclusion for several reasons.
First, although the subjects of land use and zoning have
“‘historically’” and “traditionally” “‘been a function of local
government under the grant of police power’” to those
governments by our Constitution (DeVita, supra, 9 Cal.4th at p.
782; City of Los Angeles, supra, 138 Cal.App.3d at p. 533; City of
Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1079 (City of
Morgan Hill)), the sub-issue of ensuring affordable housing has
been a matter of statewide concern for nearly six decades. Senate

10
Bill 10 was not our Legislature’s first foray into this sub-issue; to
the contrary, Senate Bill 10 is the latest in a long line of state
laws mandating that local governments address the availability
and affordability of housing. In 1965, our Legislature enacted
section 65300, which obligates local governments to “adopt a
comprehensive, long-term general plan” with a “housing element
designed to promote adequate housing.” (§ 65300 et seq.; Stats.
1965, ch. 1880, § 5; California Renters Legal Advocacy &
Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820,
834 (California Renters).) When that proved insufficient, our
Legislature in 1980 enacted the “Housing Element Law,” which
obligates local governments to “‘analyze and quantify the . . .
locality’s share of the regional housing need’” and then to submit
for approval, to the state’s Department of Housing and
Community Development, a multiyear schedule of actions that
the local governments will undertake to meet those needs; the
Legislature also that year enacted the “Least Cost Zoning Law,”
which obligates local governments to “zone sufficient vacant land
for residential use . . . to meet housing needs for all income
categories.” (§§ 65580 et seq., 65913.1; California Renters, at p.
834; Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1182-
1186 [describing both laws].) When those proved insufficient, our
Legislature in 1982 enacted the Housing Accountability Act (§
65589.5), which obligates local governments to approve plans for
housing developments unless they find a “specific, adverse, and
unavoidable impact on public health or safety.” (§ 65589.5, subd.
(j); California Renters, at p. 835.) Because all of these laws are
still proving insufficient due to local laws capping housing
density, our Legislature enacted Senate Bill 10 to give local
governments an additional tool to carry into effect the pressing

11
concern of housing supply and affordability that has been a
matter of statewide concern for decades.
Second, we independently find a sufficient factual and
policy basis for our Legislature’s repeated findings over the years
that the issue of assuring an adequate supply of affordable
housing is one of statewide or regional concern (§§ 65913.5, subd.
(f), 65580, subd. (a) [“the availability of housing is of vital
statewide importance”], 65589.5, subd. (g) [“the Legislature finds
that the lack of housing . . . is a critical statewide problem”]),
even though it might appear to be a local issue at first blush. To
begin, there is a direct link between the affordability of housing
and the supply of housing. Under basic economic principles,
prices go up when demand exceeds supply. Thus, the rise in
housing prices at every income level in California is logically
linked to the insufficient supply of housing at all of those income
levels. (Accord, California Renters, supra, 68 Cal.App.5th at p.
848 [“a shortage of housing in our state has led to escalating costs
that for many have rendered adequate shelter unaffordable”].)
What is more, the task of ensuring a great supply of housing is
one that is logically handled at the state level. That is because
local governments are susceptible to “not in my backyard” (or
NIMBY) pressure: Local residents do not want to live near high-
density housing, so they elect local officials hostile to such
housing or lobby heavily against such housing, figuring that some
other local government will approve higher-density projects (§
65589.5, subd. (a)(1)(D) [“Many local governments do not give
adequate attention to the economic, environmental, and social
costs of decisions that result in disapproval of housing
development projects”]; California Renters, at p. 835 [attributing
“shortfall” in housing “to community resistance to new hosing,

12
facilitated by laws allowing cities and counties to control when
and where development occurs”]); because local governments
would not address the housing shortage if left to their own
devices, state intervention is sensible—if not outright necessary
(accord, Von Raesfeld, supra, 3 Cal.3d at p. 247 [where issue
requires cooperation of multiple cities to solve, it is a matter of
statewide concern]).
Not surprisingly, our Legislature in enacting Senate Bill 10
cited the same two reasons—the economic link between housing
prices and housing supply as well as NIMBY pressures—in
explaining why the issue of an affordable housing supply is one of
statewide concern.5 Regarding economics, the Legislature noted
that “[a] major cause of [the] housing crisis is the mismatch
between the supply and demand for housing.” (Assem. Com. on
Housing and Community Development, Rep. on Sen. Bill No. 10
(2021-2022 Reg. Sess.) as amended June 14, 2021, p. 4.)
Regarding the NIMBY problem and the need for state
intervention, the Legislature noted that “a major factor”
contributing to the “state’s lack of housing production” is that
“local . . . governments are quick to respond to vocal community
members who may not want new neighbors.” (Sen. Com. on
Governance and Finance, Rep. on Sen. Bill No. 10 (2021-2022
Reg. Sess.) as amended April 13, 2021, pp. 2-3.)
Petitioners and their amici curiae resist our conclusion that
Senate Bill 10 addresses an issue of statewide concern with what
boils down to two arguments. First, they argue that it is
dangerous to blindly defer to our Legislature’s finding that an
issue is one of statewide concern. We agree, which is why we

5 We may take judicial notice of this legislative history.
(Evid. Code, §§ 452, subd. (c), 459.)

13
have given that finding great weight but nonetheless
independently examined the reasons behind the finding in this
case before concluding that it is supported. Second, amici curiae
argue that the Legislature did not produce a sufficient
evidentiary record to establish that there is a shortage as to all
housing, rather than a shortage of affordable housing. To the
extent amici curiae are asserting that the Legislature’s findings
are sufficient only if preceded by a court-like proceeding
supported by evidence, we disagree; our Legislature may not
make findings that are arbitrary, irrational, or based on
speculation (American Academy of Pediatrics v. Lungren (1997)
16 Cal.4th 307, 349-350, 357-358), but our Legislature is not a
court and thus has the greater latitude necessary to consider not
only evidence adduced at legislative hearings, but also to consider
policy and other practical considerations. Further, and as we
note above, the increase in housing prices at all levels reasonably
supports the Legislature’s finding that there is a shortage of
housing at all of those levels.
II. Has Senate Bill 10 Displaced Local Laws Setting
Housing Density Caps?
A. Has Senate Bill 10 displaced those caps under
the law governing preemption of local laws by state law?
Our Legislature may displace ordinances enacted by local
governments either expressly or by implication. (Sherwin-
Williams, supra, 4 Cal.4th at p. 897.) The Legislature impliedly
preempts—and thus invalidates—“local legislation” if that
legislation (1) “is ‘duplicative’” of the state law, (2) contradicts or
is inimical to the state law, or (3) addresses “an area that is ‘fully
occupied’ by” state law “when the Legislature has expressly
manifested its intent to ‘fully occupy’ the area.” (Id., at pp. 897-

14
898; Chevron U.S.A. Inc. v. County of Monterey (2023) 15 Cal.5th
135, 142 (Chevron); American Financial Services Assn. v. City of
Oakland (2005) 34 Cal.4th 1239, 1251-1252.)
A local law contradicts and is inimical to—and therefore
conflicts with—a state law in two situations pertinent here.
First, a local law contradicts a state law when the local law says,
“You cannot do X,” and the state law says, “You must do X.” In
this situation, the local law is preempted because “the [local]
ordinance directly . . . prohibits what the state enactment
demands.” (City of Riverside v. Inland Empire Patients Health &
Wellness Center, Inc. (2013) 56 Cal.4th 729, 743 (City of
Riverside), italics added.)6 Second, a local law contradicts a state
law when the local law says, “You cannot do X,” and the state law
says, “You have the option of doing X, Y, or Z.” In this situation,
the local law is preempted because the “‘local [ordinance]
prohibits . . . what the [state] statute permits or authorizes.’”
(Chevron, supra, 15 Cal.5th at p. 149, italics added.)
We hold that Senate Bill 10 effects a limited preemption of
local housing density caps. Given that section 65913.5 explicitly
grants local legislative bodies the power to supersede local
housing density caps under certain circumstances, there is a good
argument to be made that Senate Bill 10 expressly preempts
those caps. We need not confront that issue, however, because
local housing destiny caps conflict with and are inimical to
Senate Bill 10. That is because those caps tell the local
legislative body, “You cannot do X [where X is approving a project

6 This type of preemption also exists in the inverse situation
where the local law says, “You must do X,” and the state law says,
“You cannot do X.” (City of Riverside, supra, 56 Cal.4th at p.
743.)

15
that exceeds the locally enacted housing density cap],” while
Senate Bill 10 tells the local legislative body, “You have the
option of doing X [opting to exceed the cap] or doing Y [opting not
to exceed the cap].” In this situation, the local housing caps
“prohibit” what Senate Bill 10 “permits or authorizes.” This is
analogous to the analysis in Chevron, where the Supreme Court
held that a state statute that granted a “state supervisor” the
power to “approve all production methods” of recovering
underground minerals conflicted with a local ordinance because
the local ordinance took some of those “methods off the table.”
(Chevron, supra, 15 Cal.5th at p. 149.)
Petitioners resist our conclusion with what boils down to
four arguments.
First, they assert that Citizens for Planning Responsibly v.
County of San Luis Obispo (2009) 176 Cal.App.4th 357 supplies
the sole test for assessing preemption of local initiatives, and that
none of its three tests for preemption—namely, (1) the
Legislature has occupied the field, (2) the Legislature is
exclusively delegating the power to enact laws to the local
legislative body and shutting down the power to enact local voter
initiatives entirely, or (3) the exercise of the initiative power
“would impermissibly interfere with an essential governmental
function”—applies. (Id. at p. 371.) Thus, petitioners seem to
reason, implied preemption due to a conflict between the laws is
not a viable type of preemption. We disagree. Citizens for
Planning Responsibly does not displace the test for preemption
set forth by our Supreme Court, particularly when other Supreme
Court precedent (which we address in the next subsection)
directly addresses what our Legislature must do to preempt the
local initiative power.

16
 Second, petitioners contend that local housing density caps
do not conflict with Senate Bill 10 because Senate Bill 10 does not
demand what the caps prohibit; Senate Bill 10 does not require
local legislative bodies to supersede the density caps, petitioners
explain, but rather just gives them the discretion to do so. This
contention lacks merit for two reasons. To begin, this contention
treats the first type of conflict preemption—that is, when the
local law says, “You cannot do X,” and the state law says, “You
must do X”— as if it is the only type of conflict preemption; as
explained above, it is not. Although City of Riverside articulated
that first type, Chevron explicitly disclaimed that City of
Riverside’s articulation was the sole type of conflict preemption
because, as Chevron explained, that articulation would
“‘improperly limit the scope of the preemption inquiry.’”
(Chevron, supra, 15 Cal.5th at p. 148.) Petitioners urge that we
cannot read Chevron to eclipse City of Riverside because City of
Riverside addressed a different issue (namely, a “vertical conflict”
between the state and the local legislative body). We disagree:
Both City of Riverside and Chevron defined when a state law
preempts a local law, which is precisely the issue here—namely,
whether Senate Bill 10 preempts local housing density caps. And
even if we were to apply the first type of conflict preemption set
forth in City of Riverside, local housing density caps would still
conflict with Senate Bill 10 because that first type has an
exception recognizing that a “local regulation” is preempted
“when a [state] statute or statutory scheme seeks to promote a
certain activity and, at the same time, permits more stringent
local regulation of that activity” should the “local regulation” be
“used to completely ban the activity or otherwise frustrate the
statute’s purpose.” (Great Western Shows v. County of Los

17
Angeles (2002) 27 Cal.4th 853, 867-868; City of Riverside, 56
Cal.4th at p. 758; Chevron, at p. 149.) That exception applies
here because Senate Bill 10 seeks to promote higher density
housing projects and allows for “more stringent local regulation”
of housing projects, but local housing density caps are being used
to “frustrate the statute’s purpose.”
Third, petitioners argue that Senate Bill 10 will not always
alter the outcome of individual zoning decisions because a local
legislative body might elect not to supersede a local housing
density cap. This is true, but irrelevant. By granting local
legislative bodies the discretion whether to supersede local
housing density caps, there will, by definition, be instances in
which a local legislative body making a decision as to a specific
parcel will elect not to supersede the applicable density cap and,
hence, Senate Bill 10 will not always change the outcome of those
parcel-by-parcel decisions. But this result merely reflects the
existence of the discretion Senate Bill 10 confers; it does not
somehow erase the fundamental conflict between a local
legislative body having some discretion to supersede those caps
(as it does under Senate Bill 10) and having no discretion to
supersede (as it does under the local law). And because the local
caps prohibit what Senate Bill 10 authorizes—that is, the
discretion to supersede—there is a conflict regardless of whether
the outcomes might be different for any given zoning decision.
Fourth and lastly, petitioners posit that there need not be a
conflict between Senate Bill 10 and initiative-based housing
density caps because it is possible to ask the local electorate
whether to supersede an initiative-based housing density cap,
thereby sidestepping any conflict. This position utterly ignores
that a main reason our Legislature enacted Senate Bill 10 is

18
because local electorates were blocking attempts to increase
housing density. Petitioners’ suggestion that Senate Bill 10’s
mechanism can be swapped out for “letting the voters decide” on
a parcel-by-parcel basis would perpetuate the existing paralysis
and completely frustrate a main reason for Senate Bill 10’s
enactment. We respectfully decline petitioners’ invitation to
neuter Senate Bill 10.
B. Has Senate Bill 10 satisfied the more exacting
standard for preemption of local voter initiatives?
For over a century, our state Constitution has enshrined
the power of the voters in counties and cities to enact local laws
by voter initiative. (Cal. Const., art. II, § 11 [“Initiative and
referendum powers may be exercised by the electors of each city
or county”]; Perry v. Brown (2011) 52 Cal.4th 1116, 1140-1141;
Voters for Responsible Retirement, supra, 8 Cal.4th at p. 776.)7
This power exists to “afford the people the ability to propose and
to adopt” laws “that their elected public officials had refused or
declined to adopt.” (Perry, at p. 1140.) Unlike laws enacted
through the usual legislative process, laws enacted by voter
initiative may be altered only in accord with the terms for
amendment set forth in the initiative or, if none are set forth, by
a further vote of the electorate. (Elec. Code, § 9217; Rossi v.
Brown (1995) 9 Cal.4th 688, 715-716; Brookside Investments, Ltd.
v. City of El Monte (2016) 5 Cal.App.5th 540, 551-552; accord,
Cal. Const., art. II, § 10, subd. (c); Amwest Surety Ins. Co. v.
Wilson (1995) 11 Cal.4th 1243, 1251.) Given its importance in
our constitutional scheme, any doubts about the initiative power
are to be “‘“reasonably . . . resolved in favor of”’” that power.

7 Voters also have the power to enact state laws by initiative.
(Cal. Const., art. II, § 8.)

19
(Voters for Responsible Retirement, at pp. 776-777; Associated
Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,
591.)
Contrary to what petitioners assert after proffering a
detailed exegesis on the initiative power, our Legislature may
preempt local laws adopted through the initiative power. In
deference to the presumption in favor of the exercise of that
power, however, a state statute preempts local laws adopted
through initiative only if there is a “‘clear showing’” or “definite
indication” of legislative intent to do so. (DeVita, supra, 9 Cal.4th
at pp. 775-776; City of Morgan Hill, supra, 5 Cal.5th at p. 1079.)
In enacting Senate Bill 10, our Legislature clearly showed
and definitely indicated its intent to displace local housing
density caps adopted through local voter initiative. Section
65913.5 explicitly grants local legislative bodies the power to
“adopt an ordinance to zone a parcel for up to 10 units of
residential density per parcel” “[n]otwithstanding any local
restrictions . . . including . . . restrictions enacted by local
initiative.” (§ 65915.3, subd. (a)(1), italics added.) Indeed, section
65913.5 even goes so far as to erect a separate and higher
procedural requirement for superseding an initiative-based
housing density cap than for superseding a legislatively enacted
cap—namely, a two-thirds vote rather than a simple majority.
(Id., subd. (b)(4).) These provisions leave no doubt that our
Legislature explicitly contemplated that Senate Bill 10 would be
used to supersede local voter initiatives.
Petitioners respond with two arguments.
First, they seem to suggest that the power of voter
initiative is so powerful, so fundamental, and so foundational
that our Legislature can never preempt local laws enacted by

20
voter initiative. Relatedly, they assert that the constitutional
nature of the initiative power means that no mere statute can
override that power because the Constitution trumps any statute.
As the precedent detailed above indicates, petitioners are just
plain wrong that local laws adopted by initiative may never be
preempted by state law. Further, this is not a competition
between a constitutional provision and a statute; to the contrary,
and as our Supreme Court has explained, the Legislature’s power
to preempt initiative-enacted local laws is also constitutional in
nature, “deriv[ing] not only from the exceptions found implicitly”
in article II, section 11 of the state Constitution conferring the
local initiative power, “but also from [the Legislature’s] power to
enact general laws of statewide importance that override local
legislation” as set forth in article XI, section 7 of the state
Constitution. (Voters for Responsible Retirement, supra, 8
Cal.4th at p. 779.)
Second, petitioners argue that the “exclusive delegation”
doctrine discussed in Committee of Seven Thousand, supra, 45
Cal.3d 491 does not apply to Senate Bill 10 because (1) Senate
Bill 10 does not divest local voters of the power to enact housing
density caps by initiative, and hence does not exclusively delegate
to local legislative bodies the exclusive power over housing
density caps; and (2) the power of voter initiative is “an inherent
preexisting power” that belongs to the voters (City of Riverside,
supra, 56 Cal.4th at p. 754, fn. 8), such that it can never be taken
away from the voters and then redelegated to the local legislative
bodies. We agree with petitioners that Senate Bill 10 does not
deprive local voters of the power to adopt initiatives regulating

21
housing density;8 instead, it grants local legislative bodies a
limited power to supersede all local housing density caps,
whether enacted by ordinance or by voter initiative—and,
pertinent here, whether those ordinances and initiatives were
enacted before or after Senate Bill 10 came into being. To the
extent petitioners are asserting that the power of initiative that
inheres in the voters can never be preempted, they are, again,
wrong on the law.
III. Can our Legislature Validly Exercise Its Preemptive
Power by Imbuing Local Legislative Bodies With the
Discretion to Decide Whether to Exercise That Power on a
Parcel-by-Parcel Basis?
In light of the analysis set forth above, and as petitioners
agreed at oral argument, our Legislature could have validly
exercised its preemption power to effect an across-the-board
nullification of all local housing density caps across the state.
But Senate Bill 10 does not take such a drastic, sweeping step.
Instead, it takes the more modest and novel approach of cloaking
local legislative bodies with the mantle of state authority by
granting those bodies some discretion on whether to supersede
local laws, including those adopted by voter initiative. Does this
more restrained approach render Senate Bill 10 unconstitutional?
We conclude it does not. Apart from the general notion
that the Legislature’s power to undertake a greater act (such as
wiping out all local housing density caps) typically means it has
the power to undertake lesser acts (such as allowing local bodies
to decide whether to wipe out those caps on a parcel-by-parcel
basis) (see, e.g., Von Raesfeld, supra, 3 Cal.3d at p. 248), we

8 We therefore disagree with the trial court’s ruling on this
point.

22
conclude that Senate Bill 10’s delegation of preemptive power to
local legislative bodies is constitutionally permissible for three
reasons.
First, the weight of precedent supports (but does not
dictate) this result. In Committee of Seven Thousand, supra, 45
Cal.3d 491, a state statute granted local legislative bodies the
power to impose development fees to fund the construction of
major traffic corridors running between cities and, in tandem,
barred the adoption of local initiatives prohibiting such fees. In
rejecting a constitutional challenge to this statute, our Supreme
Court noted that “[i]n matters of statewide concern,” the state
has the option of either “preempt[ing] the entire field to the
exclusion of all local control” or “grant[ing] some measure of local
control and autonomy” while “impos[ing] procedural restrictions
on the exercise of the power granted, including the authority to
bar the exercise of the initiative” power. (Id. at p. 511.) Although
the statute in Committee of Seven Thousand is not identical to
Senate Bill 10 because Senate Bill 10 does not divest local voters
of their initiative power when it comes to housing density caps,
Committee of Seven Thousand does support the notion that our
Legislature may delegate to local legislative bodies discretion on
how to act (that is, to impose construction fees or not impose
construction fees) while simultaneously superseding any voter
initiatives that would interfere with that discretion. Along
similar lines, in Von Raesfeld, supra, 3 Cal.3d 239, a state statute
granted cities the power to issue construction bonds for sewage
projects at a 7-percent interest rate notwithstanding local laws
requiring a city-wide “bond election” regarding the issuance and
interest rate of such bonds. (Id. at p. 248.) In rejecting a
constitutional challenge to this statute, our Supreme Court noted

23
that the Legislature’s power to “eliminate entirely the [local]
requirement of voter approval of the . . . bonds in issue”
necessarily included the “lesser act” of granting the city’s
legislative body the power to issue bonds at the rate authorized
by the state statute. (Ibid.) Although the statute in Von Raesfeld
is not identical to Senate Bill 10 because Von Raesfeld did not
involve a voter initiative, Von Raesfeld does support the notion
that our Legislature may delegate to local legislative bodies
discretion on how to act (that is, to issue bonds with a higher
interest rate or impose them at the rate approved by the voters
during a bond election) while simultaneously superseding any
local ordinances that would interfere with that discretion.
Second, imbuing local legislative bodies with the discretion
on whether to supersede local housing density caps is ostensibly
more solicitous of the initiative power than a wholesale
invalidation of all local caps in the state. Senate Bill 10 is a case
in point. Senate Bill 10 does not nullify all local housing density
caps in the state. It does not bar local voters from enacting new
housing density caps through the initiative power. The discretion
it grants to local legislative bodies to supersede local housing
density caps may only be exercised in “transit-rich area[s]” and
“urban infill site[s]” that are not in “very high fire severity
zone[s].” (§ 65913.5, subds. (a)(1), (a)(4)(A) & (b)(3).) That
discretion only permits the local legislative body to deviate from
existing local caps “up to 10 units of residential density per
parcel.” (Id., subd. (a)(1).) That discretion does not exist at all
against voter initiatives “designat[ing] publicly owned land as
open-space land . . . or for park or recreational purposes,” and
exists against all other initiative-based caps only if two-thirds of
the local legislative body votes to supersede. (Id., subds. (a)(1),

24
(a)(4)(B) & (b)(4).) If a state statute nullifying dozens if not
hundreds of local initiative-based housing density caps is
constitutional despite its affront to the local initiative power, it is
difficult to see how Senate Bill 10—which has a far less
expansive effect on initiative-based caps and hence poses a
demonstrably lesser affront to the initiative power—is somehow
more constitutionally offensive.
Third and lastly, the net effect of Senate Bill 10 is not
constitutionally offensive. The Legislature could have passed a
state law that preempts all local housing density caps (including
those adopted by local voter initiative), but grants local
legislative bodies the power to decide whether to resurrect—and
hence whether to apply—the preempted (and hence defunct) local
ordinances or initiatives when considering a particular zoning
application. At oral argument, petitioners agreed such a law
would not be unconstitutional. But Senate Bill 10 has the same
net effect because it also grants local legislative bodies the power
to decide whether to supersede—and hence whether to apply—
local ordinances or initiatives when considering a particular
zoning application. Where Senate Bill 10 differs from the
hypothetical law is that the Legislature left local voter initiatives
intact unless and until they are superseded in a particular zoning
decision rather than invalidating all local voter initiatives and
then leaving it to the local legislative bodies whether to resurrect
them. In that regard, Senate Bill 10 is once again more solicitous
of the initiative power. Petitioners urged at oral argument that
Senate Bill 10’s mechanism for achieving this effect constitutes a
greater affront to the “status” of the local initiative power than
the hypothetical law, but we decline to invalidate a statute based
on its affront to the status of the initiative power when its net

25
effect is less offensive to that power than other mechanisms
posing an allegedly lesser affront.
Petitioners offer four arguments in response.
First, they argue that neither Committee of Seven
Thousand nor Von Raesfeld are directly on point because neither
involves a statute like Senate Bill 10, which imbues local
legislative bodies with the discretion to invalidate local laws,
including those adopted by voter initiative. We agree, as we have
acknowledged above. But that does not rob those cases of their
persuasive force by analogy.
Second, petitioners maintain that Senate Bill 10’s grant of
discretion is more constitutionally offensive than an outright ban
because discretion effectively pits the local legislative body
against the local voters, and the state Constitution dictates that
the local voters should prevail in that battle. A local legislative
body should be able to invalidate a local voter initiative,
petitioners continue in the same vein, only if the Legislature
completely negates the voters’ power to invoke the initiative
power and exclusively delegates the power to legislate to the local
legislative body, as the state statute did in Committee of Seven
Thousand.9 This argument ignores that the local legislative body
in this instance is wearing the mantle of state preemptive power,
and hence it is not pitting “local” against “local” but rather “state”
against “local”—and the Constitution dictates that the state
should prevail in that battle. And we have already explained
why, in our view, it makes no sense to condemn Senate Bill 10 as

9 We note that this argument is logically incompatible with
petitioners’ other argument, discussed above, that the local
initiative power can never be delegated because it inheres in the
voters.

26
an unconstitutional violation of the initiative power merely
because it takes the lesser step of not completely depriving local
voters of that power (as did the statute in Committee of Seven
Thousand).
Third, petitioners assert that upholding Senate Bill 10 will
pave the path to the invalidation of all local voter initiatives.
Given the gamut of constitutional analysis that a state statute
affecting local initiatives must run—as this opinion vividly
illustrates—we disagree that the proverbial sky is falling.
Fourth and lastly, petitioners argue that granting local
legislative bodies the discretion to supersede voter initiatives
setting caps on housing density will lead to poorer
decisionmaking on a parcel-by-parcel basis because elected
legislative bodies are more likely to be captured by local politics
than the electorate as a whole. Petitioners remind us that the
very purpose of the voter initiative power is to blunt the impact of
elected politicians being “hostile” toward the will of the voters.
(DeVita, supra, 9 Cal.4th at p. 788.) These are viable policy
reasons why enacting a statute like Senate Bill 10 might be ill
advised, but it is not a reason to declare it facially
unconstitutional. (Marin Healthcare Dist. v. Sutter Health (2002)
103 Cal.App.4th 861, 872 [“as a court, we must defer to the
Legislature’s judgment on which . . . policies to adopt”].) Indeed,
the Legislature ostensibly had these very same policy concerns in
mind when it fixed a higher threshold for superseding initiative-
based housing density caps than for superseding caps enacted by
the local legislative body. And to the extent a local legislative
body’s decision with respect to a specific parcel is ill advised, the
parties aggrieved by that decision can seek administrative and
judicial review; but, as noted above, the possibility that a local

27
legislative body might abuse its discretion in specific zoning
decisions in the future is not a ripe challenge today and also
provides no basis for striking down Senate Bill 10 on its face.
(Salerno, supra, 481 U.S. at p. 745.)
IV. Do Earlier Enacted Voter Initiatives Constitute a
Preemptive Exercise of the Local Legislative Body’s
Discretion Under Senate Bill 10, Such That the Body
Lacks the Power to Supersede Such Initiatives?
Bound up with their constitutional challenge to Senate Bill
10, petitioners assert that the statute does not permit local
legislative bodies to supersede voter initiative-based housing
density caps that already exist because, in their view, the
existing initiative operates as a preemptive decision by the local
jurisdiction not to supersede local caps under the discretion that
Senate Bill 10 confers.
We reject this construction of Senate Bill 10 for three
reasons.
First, the plain text of section 65913.5 does not have an
exception for already-existing initiatives, and we are not
permitted to effectively amend that text to add one. (Jarman v.
HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 392.)
Second, denying local legislative bodies the discretion to
supersede existing housing density caps previously adopted by
initiative would substantially narrow that discretion, and
conferring that discretion was the chief reason the Legislature
enacted Senate Bill 10 in the first place; we are loath to construe
the statute in a way that would largely frustrate our
Legislature’s purpose. (People v. Johnson (2022) 83 Cal.App.5th
1074, 1083, review granted Dec. 14, 2022, S277196; Isrin v.
Superior Court (1965) 63 Cal.2d 153, 163; Voters for Responsible

28
Retirement, supra, 8 Cal.4th at p. 782 [declining to construe state
statute to preserve local initiative power because doing so would
frustrate the purpose of the statute].)
Third and lastly, this construction is not supported by
precedent. To be sure, Higgins v. City of Santa Monica (1964) 62
Cal.2d 24 might at first glance appear to support petitioners’
argument. There, the state had previously granted the City of
Santa Monica authority over whether to develop its coastal
tidelands, and the city’s voters had previously adopted an
initiative prohibiting all “drilling or prospecting for oil, gas, and
other hydrocarbon substances.” (Id. at p. 26.) Although the state
subsequently enacted a statute regulating the “mode and manner
in which . . . cit[ies] may execute oil leases to tide and submerged
lands,” Higgins held that this statute regarding procedure did not
preempt local jurisdictions’ substantive decisions about whether
to develop those tidelands and thus did not nullify the previously
enacted initiative, which continued to operate as Santa Monica’s
decision not to develop. (Id. at p. 32.) But Higgins is inapt. The
statute in Higgins was purely procedural and did not purport to
alter or affect local jurisdictions’ substantive decisionmaking,
such that previously made substantive decisions would logically
remain unaffected. Senate Bill 10, by contrast, expands the
range of possible substantive decisions that a local jurisdiction
can make by granting local legislative bodies the discretion to
supersede some local density caps, and does so in light of the
pressing and severe shortage of housing in California; treating
previously made substantive decisions enacted through voter
initiative as forever binding would frustrate Senate Bill 10’s
purpose because the local jurisdiction should be given the
opportunity to reevaluate that prior decision in light of the

29
housing crisis, which constitutes a change of conditions. (See,
e.g., People v. Buycks (2018) 5 Cal.5th 857, 893 [prior sentencing
decision by trial court must be reexamined when there are
“‘changed circumstances’”].)
DISPOSITION
The judgment is affirmed. The State is entitled to its costs
on appeal.
CERTIFIED FOR PUBLICATION.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

30