California Attorney General Opinion 25-1102
CourtCalifornia Attorney General Reports
Date FiledNovember 5, 2026
Docket25-1102
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 25-1102
of :
: November 5, 2026
ROB BONTA :
Attorney General :
:
ZACHARY W. SORENSON :
Associate Deputy Solicitor General :
:
The HONORABLE TOM LACKEY, ASSEMBLYMEMBER, has requested an
opinion on questions relating to the Housing Crisis Act of 2019.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Government Code section 66300(b)(1) prohibits urban cities and counties
from imposing restrictions on residential development capacity. If a locality passes a law
to allow more housing, can a referendum rejecting that change violate subdivision (b)(1)?
Yes. A referendum rejecting a legislative enactment that would allow additional
housing can constitute a prohibited moratorium-like restriction on housing development
within the meaning of section 66300(b)(1).
2. Can a locality unilaterally invalidate a referendum that violates section
66300(b)(1)?
No. A city or county cannot deem a referendum void without a court order.
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3. What statute of limitations governs private section 66300(b)(1) actions?
It depends. A three-year limitations period applies to challenges to referenda,
while a 90-day limitations period applies to land use decisions by a local legislative body.
BACKGROUND
The Housing Crisis Act of 2019 was enacted to address California’s “housing
supply crisis.” 1 The Legislature found that “housing demand [was] far outstripping
supply,” resulting in “very expensive” housing and “rapid” rent increases. 2 Despite high
demand, homebuilders were “unable to meet that demand because of local rules that limit
the number of units or simply prohibit building altogether.” 3 So the Housing Crisis Act
declared a “statewide housing emergency” and “[s]uspend[ed] certain restrictions on the
development of new housing.” 4 The Act includes several provisions to ease limits on
homebuilding. Relevant here is Government Code section 66300, which restricts local
authority to modify land use regulations in ways that limit housing development.
1. Local land use authority derives from California’s Planning and Zoning Law. 5
Under this statute, every city and county is required to “adopt a comprehensive, long-
term general plan for [its] physical development.” 6 The general plan must “comprise an
integrated, internally consistent and compatible statement of policies” for local planning. 7
As relevant here, a general plan must include a “land use element.” The land use
element “designates the proposed general distribution and general location and extent of
the uses of the land for housing, business, industry, open space, . . . education, public
buildings and grounds, . . . and other categories of public and private uses of land.” 8
1
Sen. Bill No. 330 (2019-2020 Reg. Sess.) § 2, subd. (a)(1) (S.B. 330).
2
Id., § 2, subd. (a).
3
Off. of Sen. Floor Analyses, Sen. Rules Com., analysis of S.B. 330, Sept. 5, 2019, p. 7.
4
S.B. 330, § 2, subds. (b), (c)(1) (declaring “housing emergency” until Jan. 1, 2025);
Sen. Bill No. 8 (2021-2022 Reg. Sess.) § 13, subd. (b) (S.B. 8) (extending emergency
until Jan. 1, 2030).
5
This law is codified as title 7 of the Government Code (sections 65000-66499.58).
6
Gov. Code, § 65300. This requirement also applies to every charter city. (Ibid.)
7
Id., § 65300.5, subd. (a).
8
Id., § 65302, subd. (a).
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The general plan, including its land use element, functions “as the ‘constitution for
all future developments’ within the city or county.” 9 Specific plans and zoning
ordinances implement the applicable general plan and must be consistent with that plan. 10
Specific plans are not required, but can be adopted by cities and counties “for the
systematic implementation of the general plan.” 11 Specific plans are commonly used for
“a particular development site or sub-area.” 12 A specific plan must “specify . . . [t]he
distribution, location, and extent of the uses of land” within its area. 13
Zoning ordinances implement and must follow the general plan and any specific
plans that apply. Zoning ordinances “divide” the jurisdiction “into zones” to dictate the
“intensity of land use” in each zone, as well as development attributes such as “location,
height, bulk, number of stories, and size of buildings.” 14
General plans, specific plans, and zoning ordinances each operate by defining
categories within which uniform standards apply. General plan categories can be broad,
while zoning offers more detail. 15 Once defined, categories are mapped to specific areas
or parcels. A general plan must show “the proposed general distribution and general
location” for categories. 16 Zoning ordinances are more precise; zones must have definite
boundaries so that property owners know what rules apply. 17
Any parcel’s residential capacity is a product of several attributes of the applicable
land use categories. Some rules cap the number of dwelling units per acre or per lot.
Others—like limits on height, floor area ratio, or setbacks—restrict capacity indirectly.
9
Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570, quoting
O’Loane v. O’Rourke (1965) 231 Cal.App.2d 774, 782.
10
See Gov. Code, §§ 65454 (specific plans), 65860 (zoning ordinances).
11
Id., § 65450.
12
California Department of Real Estate, Reference Book: Information Relating to Real
Estate Practice, Licensing and Examinations (2010) p. 476.
13
Gov. Code, §§ 65451, 65454.
14
Id., §§ 65850, 65851.
15
Id., §§ 65302, subd. (a), 65852; see, e.g., San Diego Municipal Code, ch. 13, pp. 35-50
(33 residential zones).
16
Gov. Code, § 65302, subd. (a).
17
See United Outdoor Advertising Co. v. Business, Transportation & Housing Agency
(1988) 44 Cal.3d 242, 249.
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Cities and counties must follow special procedures to adopt or amend general
plans, specific plans, and zoning ordinances. 18 Among other requirements, these
procedures include steps like written recommendations from planning agencies,
consultation with affected institutions, and public hearings. Under Government Code
section 65858, however, localities are permitted to adopt temporary “interim” ordinances
(also referred to as moratorium ordinances) to protect safety, health, and welfare, without
following the usual procedures; unless renewed, these ordinances can last up to 45 days.
2. Local land use regulation is subject to the constitutional referendum power. 19
The procedures governing city and county referenda are set out in the Elections Code. 20
A referendum is possible only after final enactment of an ordinance by a legislative body.
To allow voters to weigh in, most ordinances cannot “become effective” until 30 days
after “final passage.” 21 During this 30-day period, voters can “petition protesting the
adoption of an ordinance.” 22 If enough voters join the petition, “the ordinance shall be
suspended.” 23 Unless the legislative body repeals the ordinance on its own, a “measure”
must be placed on the ballot “submit[ting] the ordinance to the voters.” 24 The enacted
ordinance remains suspended while the voters make their decision.
If the voters opt to approve the ordinance, the suspension is lifted, so the ordinance
“become[s] effective.” 25 If the voters reject the ordinance, there are two consequences.
First, “the temporary suspension becomes permanent by operation of law.” 26 Second, the
city or county is temporarily prohibited from reenacting the same measure. For cities,
that prohibition lasts for one year (by statute). 27 Counties are prohibited from reenacting
18
See, e.g., Gov. Code, §§ 65350-65362 (general plans), 65853-65857 (zoning).
19
Cal. Const., art. II, § 11; Dwyer v. City Council of Berkeley (1927) 200 Cal. 505.
20
Elec. Code, §§ 9140-9147 (counties), 9234-9247 (cities).
21
Id., §§ 9141 (counties), 9235 (cities).
22
Id., §§ 9144 (counties), 9237 (cities).
23
Id., §§ 9144 (counties), 9237 (cities).
24
Id., §§ 9145, 9147 (counties); see also id., § 9241 (cities).
25
Id., §§ 9145 (counties), 9241 (cities).
26
County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 319; see Elec. Code,
§§ 9144, 9145 (counties), 9237, 9241 (cities).
27
Elec. Code, § 9241.
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an “essential feature” of the measure until there is “a material change in
circumstances.” 28
3. Government Code section 66300 restricts the authority of certain urban cities
and counties to limit housing development. 29 The statute also expressly applies to the
electorate’s “referendum power.” 30 Relevant here, subdivision (b)(1) prohibits
“enact[ing]” land use measures that would have the “effect[]” of imposing a moratorium-
like restriction on housing development or reducing the amount of housing permitted in
certain other ways.
Our requestor asks three questions about this statute: (1) whether a referendum
rejecting a measure that authorizes additional housing can violate section 66300(b)(1);
(2) whether a locality can declare such a referendum void on its own, without a court
order; and (3) what limitations period applies to private-party actions under this statute. 31
ANALYSIS
1. Section 66300(b) Applies to Referenda Rejecting Legislative Enactments that
Would Allow Additional Housing
Our requestor asks whether certain kinds of referenda violate section 66300(b)(1).
The question envisions the following sequence of events: First, a city or county
legislative body enacts a “general plan amendment or specific plan for housing
development” that would “increase[] the ‘intensity of land use’” or “permit[] housing on
land where it would otherwise not be allowed.” Second, voters then reject that enactment
via referendum.
a. Our requestor first asks whether such a referendum would constitute a
moratorium-type restriction prohibited by subdivision (b)(1)(B)(i), which provides:
[W]ith respect to land where housing is an allowable use, an affected
county or an affected city shall not enact a development policy, standard, or
condition that would have . . . the following effect[]: . . .
28
County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 85,
97; see Elec. Code, §§ 9140-9147.
29
Gov. Code, § 66300, subd. (b)(1).
30
Id., subd. (a)(3).
Assemblymember Tom Lackey, letter requesting opn. to Atty. Gen. Rob Bonta, Opn.
31
Unit, Dept. of J., June 25, 2026, pp. 2-3.
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Imposing a moratorium or similar restriction or limitation on housing
development, including mixed-use development, within all or a portion of
the jurisdiction of the affected county or city . . . . 32
The terms “affected county” and “affected city” are defined to “include[] the electorate
. . . exercising its local initiative or referendum power.” 33 A “development policy,
standard, or condition” includes a “provision of, or amendment to” “a general plan,” “a
specific plan,” or “a zoning ordinance.” 34
i. We begin with the text of subdivision (b)(1)(B)(i). This provision is written
expansively. Its key term is “moratorium,” but it also extends to any “similar restriction
or limitation on housing development.” Additionally, section 66300 directs that its
provisions are to be “broadly construed so as to maximize the development of housing.” 35
Here is how dictionaries define the relevant terms: A “moratorium” is a
“suspension of a specific activity.” 36 A “restriction” is “a regulation that restricts or
constrains.” 37 Similarly, a “limitation” is “a restriction or restraint imposed from
without,” including “by law.” 38 (“Restrict” and “limit” both mean “set bounds or limits
to.” 39)
32
Gov. Code, § 66300, subd. (b)(1)(B)(i), italics added. Although not at issue here, the
provision excludes restrictions enacted “to specifically protect against an imminent threat
to the health and safety of persons residing in, or within the immediate vicinity of, the
area subject to the moratorium or for projects specifically identified as existing restricted
affordable housing.” (Ibid.) Exempted restrictions cannot be enforced unless approved
by the Department of Housing and Community Development. (Id., subd. (b)(1)(B)(ii).)
33
Gov. Code, § 66300, subd. (a)(3).
34
Id., subd. (a)(5).
35
Id., subd. (e)(2).
36
Black’s Law Dict. (12th ed. 2024), moratorium; see also, e.g., Webster’s 3d New
Internat. Dict. (1993) p. 1469 (“a suspension of activity”); Oxford English Dict. (2nd ed.
1989) (“A postponement, an agreed delay, a deliberate temporary suspension”).
37
Webster’s 3d New Internat. Dict. (1993) p. 1937; see also ibid. (defining “restrict” as
“to set bounds or limits to”); Oxford English Dict. (2026), restriction (“a limiting
condition or regulation”).
38
Webster’s 3d New Internat. Dict. (1993) p. 1312.
39
Ibid. (defining “limit”); see also id. at p. 1937 (providing an identical definition for
“restrict”).
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Local moratoria on specific kinds of land use or development are commonplace. 40
As noted, section 65858 authorizes cities and counties to adopt “interim ordinance[s]”
that prohibit certain land “uses” as urgency measures not subject to “the procedures
otherwise required prior to the adoption of a zoning ordinance.” Courts have referred to
such ordinances as “moratorium ordinances.” 41
But subdivision (b)(1)(B)(i) is not limited to moratorium ordinances adopted
pursuant to section 65858. Instead, with the exception of moratorium ordinances
addressing imminent public safety or health threats, 42 it applies broadly to any local
“policy, standard, or condition” that “would have” the “effect[]” of “[i]mposing a
moratorium or similar restriction or limitation on housing development.” 43 The question
here is whether a referendum rejecting a legislative enactment that would have allowed
additional housing imposes a restriction or limitation that is sufficiently “similar” to a
moratorium to be prohibited under subdivision (b)(1)(B)(i). For several reasons, we
conclude that referenda rejecting such enactments meet this standard and so are
prohibited.
As described above, a “moratorium” is a “suspension” of an activity. 44 In this
context, a voter referendum automatically imposes several suspensions. To start, a timely
referendum petition with enough signatures has the automatic effect of “suspend[ing]” an
“ordinance” enacted by a legislative body until it can be considered by voters. 45 The
referendum vote must be held at least 88 days after the ordinance is ordered to be
submitted to the voters—so regardless of the outcome, one automatic effect of a
successful petition is that the ordinance is suspended for at least 88 days. 46 If voters
reject the ordinance, there are two additional effects. First, “the temporary suspension”
40
E.g., City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013)
56 Cal.4th 729, 749 (45-day moratorium on issuance of “any permit, variance, license, or
other entitlement for operation of a medical marijuana dispensary”); City of Goleta v.
Superior Court (2006) 40 Cal.4th 270, 280 (“45-day moratorium on approval of
development proposals”); Lesher Communications, Inc. v. City of Walnut Creek (1990)
52 Cal.3d 531, 536 (moratorium on construction of certain “buildings or structures”);
Carson Mobilehome Park Owners Association v. City of Carson (1983) 35 Cal.3d 184,
187 (“90-day moratorium on rent increases in mobilehome parks”).
41
See generally, e.g., Bank of the Orient v. Town of Tiburon (1990) 220 Cal.App.3d 992.
42
See ante, fn. 32.
43
Gov. Code, § 66300, subd. (b)(1)(B)(i).
44
Black’s Law Dict. (12th ed. 2024), moratorium; see ante, fn. 36.
45
Elec. Code, §§ 9144 (counties), 9237 (cities).
46
By comparison, moratorium ordinances under section 65858 can initially last only 45
days, and can only be extended with a four-fifths vote by the legislative body.
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of the ordinance “becomes permanent by operation of law.” 47 Second, the legislative
body is temporarily prohibited from reenacting the same measure—either for one year
(for cities), 48 or until there is “a material change in circumstances” (for counties). 49
Here, our requestor contemplates an enacted measure that would have either
increased the intensity of authorized housing use or permitted housing in new locations.
Either way, the measure would allow additional housing compared to the status quo. A
successful referendum petition challenging the measure would automatically suspend it
from taking effect. Because the measure would have allowed additional housing,
suspending the measure also has the effect of suspending development of that additional
housing. Moreover, if voters ultimately reject the underlying measure, then development
of that housing remains permanently suspended, and the legislative body is temporarily
restricted from reenacting a separate ordinance to again authorize that development.
In short, a referendum rejecting an ordinance that would allow additional housing
imposes three suspensions: a temporary suspension of the ordinance pending the vote, a
permanent suspension after the ballot-box rejection, and an additional suspension of the
legislative body’s authority to reenact the same policy (for one year or indefinitely). We
conclude that the “effect” of these suspensions is to impose “a moratorium or similar
restriction or limitation on housing development” in violation of subdivision (b)(1)(B)(i).
A superior court adopted this interpretation in NRF Project Owner LLC v. City of
Oceanside. 50 In that case, the court considered a referendum rejecting a zoning change
that would have enabled a housing development. 51 The court held that the challenged
referendum violated the statute’s moratorium restriction, because the “effect” of the
referendum was to “prevent[] development of up to 585 homes,” meaning that the
referendum was a “limitation on housing development” under subdivision (b)(1)(B). 52
Following Oceanside, the Legislature amended the Housing Crisis Act to extend its
operation by five years, among other changes. 53 During that process, the Assembly
47
County of Kern v. T.C.E.F., Inc., supra, 246 Cal.App.4th at p. 319; see Elec. Code,
§§ 9144, 9145 (counties), 9237, 9241 (cities).
48
Elec. Code, § 9241.
49
County of Kern v. Alta Sierra Holistic Exchange Service, supra, 46 Cal.App.5th at
p. 85; see Elec. Code, §§ 9140-9147.
50
The NRF Project Owner LLC v. City of Oceanside (Super. Ct. San Diego County, May
6, 2021, No. 37-2020-00025295-CU-MC-CTL) Minute Order, at p. 1.
51
Ibid.
52
Id. at pp. 2-3.
53
S.B. 8.
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Committee on Local Government specifically cited Oceanside as an example of the Act’s
“impact on housing development.” 54 The Committee’s analysis noted that the Oceanside
developer had argued “that the referendum violated the [Housing Crisis Act’s]
prohibition on housing moratoria,” and that the court agreed because the measure “‘has
the effect of limiting housing development.’” 55 The Legislature then amended section
66300(b) without changing the moratorium language. That legislators were aware of and
cited Oceanside suggests that the Legislature concurred in (or ratified) the superior
court’s reasoning that referenda can violate subdivision (b)(1)(B)’s anti-moratorium
provision. 56
ii. We recognize that it is also possible to read the text of subdivision (b)(1) as not
applying to referenda at all. The text states that an “affected” city or county “shall not
enact” a “development policy, standard, or condition” that would have prohibited
effects. 57 In turn, a “development policy, standard, or condition” means a “provision of,
or amendment to” “a general plan,” “a specific plan,” or “a zoning ordinance.” 58
One way to read these provisions together is that subdivision (b)(1) applies only to
ordinances adopted by a local legislative body or by the electorate as initiative measures.
Such legislative enactments—whether passed by a city council, a board of supervisors, or
the electorate—can directly enact a “provision of” or “amendment to” a general plan,
specific plan, or zoning ordinance. A referendum, by contrast, is possible only after
“final passage” of an ordinance by a legislative body. 59 And a referendum that rejects a
legislative enactment does not, by this account, separately enact a different measure—it
simply “rejects a statutory alteration” enacted by the legislative body “before it becomes
law.” 60
Under this narrower reading, a referendum that rejects a pro-housing legislative
enactment would not “enact” a “development policy, standard, or condition” within the
meaning of section 66300(b)(1)—it would simply reject an enactment that would have
allowed additional housing. So read, considering and then rejecting a pro-housing
measure via referendum in this manner would not violate subdivision (b)(1) any more
54
Assem. Com. on Local Gov., analysis of S.B. 8, as amended June 1, 2021, p. 6.
55
Ibid.
56
See People v. Bouzas (1991) 53 Cal.3d 467, 475.
57
Gov. Code, § 66300, subd. (b)(1), italics added.
58
Id., subd. (a)(5).
59
Elec. Code, § 9141 (counties); see also id., § 9235 (cities).
60
City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1082, italics added.
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than if a city council member introduced a pro-housing measure but the full council failed
to pass it.
We reject this alternative reading for several reasons. The fundamental problem is
that it would render section 66300’s reference to the referendum power superfluous.
Again, the “affected” cities and counties covered by subdivision (b)(1) are defined to
“include[] the electorate of an affected county or city exercising its local . . . referendum
power.” 61 And subdivision (b)(1) is the statute’s primary substantive provision—it is the
only part of section 66300 that imposes a restriction on “affected” cities and counties. 62
As a result, the only way that the Legislature’s choice to include the “referendum power”
can have meaning is through subdivision (b)(1).
As a general principle of statutory interpretation, “we consider portions of a statute
in the context of the entire statute . . . , giving significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative purpose.” 63 And in the context
of this statute, section 66300 states that “[i]t is the intent of the Legislature that this
section be broadly construed so as to maximize the development of housing within this
state.” 64 Interpreting section 66300(b)(1) as not applying to referenda would violate both
of these interpretive guidelines, because it would render superfluous the reference to the
“referendum power,” and would permit actions that undermine the statute’s objective.
Another possible reading of section 66300(b)(1) is that it applies only in scenarios
where voters ratify an anti-housing ordinance that itself would violate subdivision (b)(1),
but not in scenarios where voters reject a pro-housing ordinance that complies with the
statute. We reject this reading as well, as it would also render the statute’s reference to
the referendum power effectively meaningless. That is because an ordinance passed by a
legislative body that violates section 66300 is “void.” 65 If the Legislature meant only to
prohibit referenda ratifying measures that already violated the statute, there would be no
reason to apply subdivision (b)(1) to the referendum power—the measure would already
be void immediately upon final passage by the legislative body, regardless of whether
there was a referendum. Accordingly, the express inclusion of the “referendum power”
61
Gov. Code, § 66300, subd. (a)(3).
62
All other references to “affected” cities or counties are in provisions that define
“affected” or provide exceptions to subdivision (b)(1). (See id., subds. (a), (d)
(definitions), subds. (c), (f), (g)(2), (h), (i) (exceptions).)
63
Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063, italics added.
64
Gov. Code, § 66300, subd. (e)(2), italics added.
65
See id., subd. (b)(2) (“Any development policy, standard, or condition . . . that does not
comply with this section shall be deemed void”).
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would have no independent force unless subdivision (b)(1) also applies to referenda that
reject measures authorizing additional housing.
Finally, we acknowledge that courts “jealously guard” the referendum power and
find it preempted only with a “definite indication” or a “clear showing” of legislative
intent. 66 But the Legislature is free to restrict local referendum authority, just as it may
pass any “general laws of statewide importance that override local legislation.” 67 Here,
section 66300 clearly addresses a matter of statewide concern—the “housing emergency”
declared by the statute. 68 And its reference to the “local . . . referendum power” in a
provision that explicitly limits local authority demonstrates a sufficiently clear and
definite intent to restrict the referendum power. 69 Indeed, as the Oceanside court noted in
concluding that section 66300 applies to referenda, “the Legislature made definite
indications and a clear showing of intent to preempt referendums.” 70
* * *
In sum, we conclude that section 66300(b)(1) applies to referenda, and that a
referendum rejecting a legislative enactment that would have allowed additional housing
can constitute a prohibited moratorium-like restriction under subdivision (b)(1)(B)(i).
b. Our requestor also asks whether such referenda can violate subdivision
(b)(1)(A). Specifically, the request asks whether a referendum rejecting a measure that
would have allowed additional housing can constitute “[a] change in the ‘general plan
land use designation, specific plan land use designation, or zoning’ to a less intensive use,
or a reduction in land use intensity, in violation of subdivision (b)(1)(A).”
Subdivision (b)(1)(A) applies to enactments with the “effect[]” of:
[i] Changing the general plan land use designation, specific plan land use
designation, or zoning of a parcel or parcels of property to a less intensive
use or [ii] reducing the intensity of land use within an existing general plan
66
City of Morgan Hill v. Bushey, supra, 5 Cal.5th at pp. 1078-1079.
67
Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779.
68
S.B. 330, § 2, subd. (b).
69
See The NRF Project Owner LLC v. City of Oceanside (Super. Ct. San Diego County,
May 6, 2021, No. 37-2020-00025295-CU-MC-CTL) Minute Order, at p. 1 (explaining
that the Housing Crisis Act includes “definite indications and a clear showing of intent to
preempt referendums designed to restrict ‘development of housing within this state’”).
70
Id. at p. 2. Although the court did not specifically analyze whether a referendum can
be an “enact[ment]” under section 66300 (the question we discuss above), the court’s
holding that a referendum can violate subdivision (b)(1) implicitly concludes that it can.
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land use designation, specific plan land use designation, or zoning district
in effect at the time of the proposed change, below what was allowed under
the land use designation or zoning ordinances of the affected county or
affected city, as applicable, as in effect on January 1, 2018, except as
otherwise provided in clause (ii) of subparagraph (B) or subdivision (h). 71
This provision defines “reducing the intensity of land use” to include “reductions to
height, density, or floor area ratio, new or increased open space or lot size requirements,
new or increased setback requirements, minimum frontage requirements, or maximum lot
coverage limitations, or any other action that would individually or cumulatively reduce
the site’s residential development capacity.”
As explained above, land use regulations operate by first defining land use
categories (such as zones) and then mapping those categories to specific locations.
Subdivision (b)(1)(A)’s two main clauses correspond to these steps:
i. First, the “reducing” clause (clause “ii” in the quote above) applies to measures
that redefine existing land use categories (i.e., “designation[s]” and “district[s]”). This
clause prohibits redefining land use categories in a manner that “reduc[es] the intensity of
land use . . . below what was allowed . . . as in effect on January 1, 2018.” 72 Here, that
2018 baseline as a practical matter renders this clause inapplicable to referenda. A
referendum that rejects a legislative enactment simply leaves in place the status quo prior
to the rejected measure’s passage. But the Housing Crisis Act did not take effect until
January 2020, meaning that any covered referendum will generally restore a post-2018
status quo, and so would not redefine a land use category to reduce its “intensity” “below
what was allowed . . . on January 1, 2018. 73 Still, the inapplicability of this clause to
referendum is unlikely to make any practical difference, because referenda rejecting
measures that would have redefined land use categories to permit more housing would
still violate subdivision (b)(1)(B)(i)’s anti-moratorium provision, as discussed above.
ii. Second, the “[c]hanging” clause applies to measures that redesignate particular
parcels to a preexisting “designation” or zoning category that permits “a less intensive
use.” 74 From the text of the statute, it is not entirely clear whether the 2018 baseline date
71
Gov. Code, § 66300, subd. (b)(1)(A), italics added. The exception in subparagraph
(B)(ii) applies to limitations approved by the Department of Housing and Community
Development to protect against health and safety threats, or for certain affordable housing
projects. Subdivision (h) allows concurrent reductions and increases in residential
capacity as long as “there is no net loss in residential capacity.”
72
Gov. Code, § 66300, subd. (b)(1)(A).
73
See Cal. Const., art. IV, § 8, subd. (c)(2) (effective dates of statutes).
74
Gov. Code, § 66300, subd. (b)(1)(A).
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also applies to this clause. If it does, then the clause is inapplicable to referenda for the
reasons just described. But even so, referenda that would otherwise be covered by this
clause could still be prohibited by subdivision (b)(1)(B)(i)’s anti-moratorium provision.
In our view, the better reading of the statute appears to be that the 2018 baseline
does not apply to measures that change the designation of parcels from one category to
another. This reading best aligns with the text: “Changing” a category “to a less
intensive use” is a grammatically complete comparison. By contrast, it would be
disjointed to consider a “less intensive use . . . below what was allowed . . . on January 1,
2018.” If the statute meant to apply the 2018 baseline to the parcel-redesignation clause,
we would expect the statute to discuss a less intensive use “than” what was allowed on
January 1, 2018, not “below” what was allowed on that date. 75 And construing the 2018
baseline to apply only to the category-redefinition clause is consistent with the
Legislature’s instruction to construe the section “broadly” and its exceptions “narrowly,”
“to maximize the development of housing within this state.” 76
In any event, we need not definitively resolve whether subdivision (b)(1)(A)’s
2018 baseline also applies to the parcel-redesignation clause. Our requestor’s question
does not specify whether the amendments envisioned would accomplish their objectives
by redefining land use categories or by redesignating parcels or regions to different
preexisting categories. And subdivision (b)(1)(B)(i)’s anti-moratorium provisions would
apply to the hypothesized referenda regardless of the mechanics of the underlying
legislative enactment that was rejected. Accordingly, the referenda envisioned by our
requestor would be void as a moratorium-like restriction under section 66300(b)(1)(B)(i).
2. A City or County May Not Unilaterally Declare a Referendum that Violates
Section 66300 Void and Unenforceable
We next consider whether a city or county that determines that a referendum
violates section 66300 may unilaterally declare the referendum void.
75
The only textual indication that the 2018 baseline could apply to both clauses is the fact
that the “[c]hanging” and “reducing” clauses are not separated by a comma, while there is
a comma before the “below what was allowed . . . on January 1, 2018” clause. But this
comma did not appear in the originally enacted version of the statute. (See S.B. 330,
§ 13.) Instead, it was added by a subsequent enactment intended to clarify other aspects
of this provision. (See S.B. 8, § 11; Leg. Counsel’s Digest, S.B. 8.) There is no
indication that the subsequent insertion of a comma was intended to substantively alter
the provision’s meaning; to the contrary, the Legislature stated that the amendments to
subdivision (b)(1)(A) did “not constitute a change in, but are declaratory of, existing
law.” (S.B. 8, § 11, codified at Gov. Code, § 66300, subd. (j).)
76
Gov. Code, § 66300, subd. (e)(2).
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Under the California Constitution, voters can propose, approve, or reject local
laws using their initiative and referendum powers. 77 The procedures governing local
referenda are set forth in the Elections Code. Courts have held that these procedures
impose mandatory, ministerial duties on local officials and “have not distinguished
between referendums and initiatives with respect to [this] ministerial duty.” 78
Before an election, so long as the statutory procedures have been followed,
“[l]ocal governments are not empowered to exercise discretion in determining whether a
duly certified referendum is placed on the ballot.” 79 Local officials play the “ministerial
function of determining whether the procedural requirements have been met.” 80
If “an initiative measure [or referendum] is unlawful and should not be presented
to the voters,” the “governmental body, or any person or entity with standing, may file a
petition for writ of mandate, seeking a court order removing the initiative measure from
the ballot.” 81 But the government “may not unilaterally decide to prevent a duly
qualified initiative [or referendum] from being presented to the electorate.” 82 Indeed,
“courts have uniformly condemned local governments when these legislative bodies have
refused to place duly qualified initiatives on the ballot.” 83
A city or county can also “permit [a] measure [or referendum] to be placed on the
ballot and then to seek review of its validity postelection.” 84
Nothing in section 66300 departs from these principles or suggests that localities
may unilaterally invalidate a procedurally compliant referendum. The statute states that
any enactment “that does not comply with this section shall be deemed void.” 85 The term
“void” aligns with the terminology used by courts and statutes in other preemption
77
Cal. Const., art. II, § 11.
78
Move Eden Housing v. City of Livermore (2024) 100 Cal.App.5th 263, 273, fn. 4.
79
Ibid., quoting Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, 663.
80
Id. at p. 275, quoting Lin v. City of Pleasanton (2009) 175 Cal.App.4th 1143, 1155.
81
Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th
141, 149.
82
Ibid., italics in original.
83
Id. at p. 148. If a jurisdiction nevertheless refuses to place an assertedly illegal
measure on the ballot, courts have “[i]n practice . . . allowed local governments to assert
such invalidity as a ‘defense’” against challenges to the refusal. (Id. at p. 150.)
84
City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113
Cal.App.4th 465, 482.
85
Gov. Code, § 66300, subd. (b)(2).
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contexts. For example, the California Supreme Court has explained that local laws that
conflicts with state law are “void.” 86 And section 66300 is not materially different from
other ways a referendum might be invalid and yet still must be presented to voters. For
instance, officials “may not ‘refuse to submit an initiative or referendum measure to the
electorate on the ground that it deals with a matter not subject to . . . referendum.” 87
Ultimately, even if a city or county is correct that a referendum is void under
subdivision (b)(2), that determination must be made by a court, not a municipality.
3. The Statute of Limitations that Applies to a Housing Crisis Act Challenge
Depends on the Nature of the Challenge
Finally, we consider what statute of limitations governs actions brought by private
parties to enforce section 66300(b)(1).
Code of Civil Procedure section 338(a) sets a baseline three-year limitations
period for “action[s] upon a li