‘Racist’ Article 34 is 72 years old and still affecting California housing

A state senator has co-sponsored a bill, which will be on the ballot in 2024, to repeal it.

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The California Constitution was amended 72 years ago to include a racist clause requiring local governments to obtain community consent before building, purchasing or financing low-income housing. The provision continues to have an impact on the market today.

According to the East Bay Times, California’s real estate industry was previously successful in stoking racial anxieties about public housing and neighborhood integration, which led to the passage of Article 34 in 1950. It was adopted soon after the federal Housing Act of 1949, which outlawed racial segregation in public housing and alarmed many white communities.

“There was a time, and it still exists today because of (this provision), where it was OK to just blatantly say we don’t want Black people in our neighborhoods — and that’s the legacy of Article 34,” said Oakland City Council member Carroll Fife, who has introduced a local affordable housing measure on which residents will soon vote.

Housing advocates protest at a rally in January 2020 outside of city hall in Oakland, California. Voters will soon decide whether to permit the construction of more affordable housing in the city. (Photo: Jeff Chiu/AP, File)

Berkeley and South San Francisco voters will also be asked to approve affordable housing measures. If adopted, the three initiatives would pave the way for local governments and private developers that receive public funds to create thousands of units of new affordable and low-income housing, which is the norm for such construction, the East Bay Times reported.

State Sen. Scott Wiener, a Democrat from San Francisco, is also an affordable housing advocate and has co-sponsored a bill to abolish Article 34. A statewide initiative urging voters to repeal the “completely racist provision,” which was overwhelmingly adopted by lawmakers in August, will appear on the 2024 ballot.

“[Article 34] creates significant barriers to our ability to solve our housing crisis, because it makes it a lot harder to build publicly funded housing for low-income people,” said Wiener, the East Bay Times reported.

Despite the legislature’s support, Wiener acknowledged that it would be difficult to win over voters who, in his opinion, are typically reluctant to give up their authority to make local decisions. This seems especially true after three previous efforts to revoke or weaken Article 34 — the last attempt was in 1993 — were unsuccessful.

However, Weiner’s preliminary voter research indicates that most people support repealing Article 34 once they are informed of its discriminatory origins and detrimental effects on affordable housing.

California Housing - Scott Weiner
Democratic California state Sen. Scott Weiner, here speaking to Senate colleagues in 2018, has co-sponsored a bill to abolish Article 34. (Photo: Rich Pedroncelli/AP)

Meanwhile, over the years cities and counties have discovered legal ways to get around Article 34, including through ballot measures such as the ones proposed in Oakland, Berkeley and South San Francisco. The primary tactic is for local governments to request the construction of a particular number of affordable housing units without having to identify the developments or their locations. Also, Article 34 does not apply to publicly supported projects if less than 49% of the units are affordable.

However, according to state officials, it can cost an additional $10,000 to $80,000 to build an affordable unit to ensure developments don’t break the rules. Occasionally, the extra expense and uncertainty play a role in projects failing to take off.

Opponents of the local measures — including citizens and taxpayers groups — claim that they will result in the misuse of public funds. The Alameda County Taxpayer Association, for instance, called the Oakland initiative an attempt “to make the voters believe that something good would actually result, rather than more waste and misuse,” according to the East Bay Times.

The California Association of Realtors is among the leading supporters of eliminating Article 34, in part to make amends for its involvement (as the California Real Estate Association) in getting the statute passed.

Sanjay Wagle, the association’s senior vice president of government affairs, said the goal is to convince voters that the clause is a remnant from California’s racist past and continues to block the development of new and affordable housing. 

According to Wagle, the organization is currently considering how much money to invest in the repeal effort, and polling will determine whether it is a “$5 million campaign, ” he says, “or is this a $40 million campaign?”

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