In Pushing Affordable Housing Measures, Local Leaders Ask Voters to Contend With Racist Housing Law

Oakland City Councilmember Carroll Fife wants you to know what Article 34 is. She wants you to face it, in all its historical ugliness, and do something about it.

The rule, embedded in the state constitution, requires local governments to turn to their voters for approval if they want to build public housing. Californians voted to add it to the constitution in 1950 and it’s been making it harder to build affordable housing since.

“There's still people who don't know that Article 34 was a direct result of white backlash to civil rights victories and the attempt of President Truman to desegregate housing,” Fife said.

It’s why she put Measure Q (PDF) on the ballot this year. On its face, it’s a wonky bit of housing policy that would grant the city permission under Article 34 to add up to 13,000 low-rent units in Oakland.

She wants voters to approve that housing, but she wants more than that from the measure.

“I wanted people to know how our racist past in California impacts all of us today,” she said.

Oakland’s past is bound up with Article 34’s. A battle that began in 1949 over a public housing project in the city birthed a juggernaut of real estate and property owners that called itself the Oakland Committee for Home Protection, which went on to play a key role in getting Article 34 on the ballot. The group joined forces with other real estate interests in California, and argued that taxpayers should have greater control over how public money is spent in their communities.

The campaign for Article 34 appealed to racist fears about integrating neighborhoods and Cold War anxieties about encroaching communism.

“Article 34 was intended to keep neighborhoods segregated,” said Amie Fishman, executive director of the Non-Profit Housing Association of Northern California, which represents affordable housing developers. She says the rule slowed lower-income home construction for decades.

“No other type of housing development asks nor requires voter approval in this kind of capacity,” she said.

In the Bay Area, Article 34 votes blocked public housing proposals throughout the '50s and '60s, according to a report published by UC Berkeley’s Othering and Belonging Institute. Among them was a 1968 San José project and two 1966 proposals in San Mateo County, where there was no public housing at the time.

The rule further stymied lower-income housing by keeping local officials from ever bringing forward new proposals, the report finds, because they understood voters would likely shoot them down.

Over the years, the courts stripped Article 34 of some of its power (PDF), and local lawmakers and developers found ways around it, but it remains a hurdle today.

“Every time we build affordable housing, we have to ensure that something meets Article 34 authorization or that there is a workaround,” Fishman said. “And that adds cost, it adds time, it adds burden.”

Momentum to scrap Article 34 is building at a time when affordable housing is seen as a primary antidote to rising homelessness.

State lawmakers recently voted to put a constitutional amendment on the 2024 ballot that would repeal it. The California Association of Realtors, the group originally behind Article 34, is now a major proponent of the effort. The group recently apologized for its role in passing the regulation.

But this election, Article 34 is the reason voters in Oakland and two other Bay Area cities are being asked to decide the future of thousands of affordable housing units.

Berkeley’s Measure N (PDF) would authorize 3,000 units of affordable housing units for residents with lower incomes, and South San Francisco’s Measure AA (PDF) would give the go-ahead for roughly 2,000 units over eight years — up to 1% of the total number of existing units in the city each year.

The cities are planning for that lower-income housing as they face pressure to meet state-mandated targets over the next eight years.

“This would be completely new to the city of South San Francisco,” said City Councilmember James Coleman, who’s behind Measure AA. In the past that city has turned to private developers or nonprofits to build affordable housing, he said, and this would allow the city to fund and control more of the process themselves. He argues that would expedite things.

In Berkeley, this kind of authorization isn’t new. Voters have approved similar measures for decades, but Mayor Jesse Arreguín says the stakes are always high.

“The fact that this could, if it doesn't pass, put a stop to the work that we're doing in Berkeley to build more affordable housing is unacceptable,” he said.

This year, he says, the initiative is facing greater opposition than in years past. In all three cities, resistance centers on the cost to taxpayers.

Arreguín is hoping California voters will repeal Article 34 when they get the chance in a couple years. “We should have done it a long time ago,” he said.

Three past attempts to repeal or change Article 34 have failed (PDF), the last time in 1993. And if this one is going to succeed, it will require a major voter-education push.

“Most people don't have any idea about Article 34,” said state Senator Ben Allen (D-Los Angeles), who’s behind the legislative drive to take the amendment to voters.

“Once they get it, most people are actually very interested in repealing the article,” he said. “But until then, folks just don't have enough information to get behind something like this.”

Oakland’s Carroll Fife is hoping to change that by putting Measure Q on the ballot this year.

“If I have anything to do with it, then repealing Article 34 will have reverberative effects for what is developed in the state of California and especially in Oakland,” she said, “where we desperately, desperately need to build units that people can afford.”

Article 34 is not the biggest barrier to building affordable housing today — political will, limited land and massive construction costs top most experts’ lists. Nor is Article 34 the only way communities can exercise local control — think zoning laws.

But scrapping it would mean one less obstacle on a path that’s crowded with them, said Gloria Bruce, executive director of East Bay Housing Organizations. For her, successfully convincing the public Article 34 should go would also represent a foundational change in how Californians think about housing.

“It would mean that we've found a way to message that creating more homes for our neighbors is way more important than some abstract fear about local control,” she said. “It's that value shift that's at the bottom of all of these difficulties.”