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October 01, 2020 Feature

Home Rule and State Preemption of Local Land Use Control

Kenneth Stahl


Though local governments have historically made most land-use decisions, the housing crisis now gripping many parts of the country has caused state legislatures in places like California, Oregon, Maryland, and Virginia to consider a more assertive role in regulating land use, “preempting” some local authority. The conflict between states and municipalities has raised an important constitutional question. Under the doctrine of “home rule,” localities may be immunized against state preemption with regard to certain matters of municipal concern. So is land use immune from state preemption? After evaluating both precedent and policy, this paper concludes that land use is clearly not immune. Appellate courts have consistently held that states may preempt local land-use decisions in order to accomplish statewide objectives such as environmental protection, efficient land-use planning, and housing affordability. Undoubtedly, addressing a crippling housing crisis is a statewide interest that would justify state preemption of local land-use control. And while courts have frequently upheld local land-use regulation in sweeping terms, they have done so in cases where the question was the authority of the municipality to initiate land-use regulation without an express authorization from the state, not whether the municipality could act in the face of preempting state legislation. In short, home rule does not protect local land-use decisions against preemption.

This paper concludes by briefly addressing the merits of a proposed ballot initiative that would constitutionally enshrine local control of land use decisions.


“Local control isn’t biblical.”

California State Senator Scott Wiener1

“Local government, when done right, is the best and most democratic form of government because it is closest to the people. . . . [P]eople deserve to have decisions affecting their daily lives made as close to home as possible.”

Former Beverly Hills Mayor John Mirisch2

Traditionally, most land-use decisions have been made by local governments. The impacts of land-use decisions are felt most acutely, it is said, by those living nearby. Only local governments, the governments closest to the people, understand the culture, topography, and history of the community sufficiently to judge the wisdom of altering its character. In the last few years, however, as many areas of the country with high levels of job growth have faced a serious housing shortage, the dark side to local control has increasingly become evident. Local governments are often beholden to local residents, especially homeowners, who vigorously oppose new development in their communities.3 And although each locality controls only the land use decisions within its borders, it is commonplace for many neighboring localities within a region to all oppose new development.4 The cumulative result is an extreme shortage of regionally needed but locally undesirable land uses like gas stations, schools, jails, waste facilities, and especially housing.5 Hence, state legislators like California’s Senator Scott Wiener have come to the view that states need to take a more assertive role in land-use regulation, overriding (or “preempting”) some local control. California and Oregon have recently passed legislation that preempts some local land-use authority,6 while legislators in Virginia and Maryland have proposed similar legislation.7

These efforts at preemption have met a furious backlash, however, from local governments and angry homeowners. They have relentlessly, and often successfully, fought back any attempt to preempt local land-use authority.8 Though Senator Wiener observes that local control “isn’t biblical,” many residents have become so accustomed to local control that they perceive it as something akin to a birthright. And whether or not local control is divinely ordained, opponents of state preemption have been led to wonder if it is the next best thing—constitutionally guaranteed. In many states, including California, cities that adopt a charter enjoy “home rule” under the state Constitution, which gives charter cities the power to act and some immunity from state preemption in matters that are deemed to be “local” or “municipal” affairs.9 Local control of land use has been so unquestioned for so long that it is tempting to think it must be just such a “municipal affair.”10

Indeed, this issue has become a live one in the last year or so. Trial courts in Northern California recently struck down two pieces of state housing legislation that preempted local land-use control, citing the home-rule power of charter cities.11 One of those decisions was subsequently overturned on appeal, with the appellate court holding that the state’s interest in addressing the affordable housing shortage warranted the intrusion upon local control.12 The other case is pending on appeal. Meanwhile in Southern California, the charter city of Huntington Beach sued the state of California on the grounds that several recently enacted pieces of state legislation that preempted some aspects of local land-use control unconstitutionally usurped charter cities’ exclusive power over land use.13 According to the city, the principle “of local autonomy over local zoning and land use is guaranteed to Charter Cities” by the California Constitution, and therefore the Constitution gives charter cities like Huntington Beach “exclusive authority devoid of any state control” over land use matters.14

The question I propose to answer here is whether Huntington Beach is correct. Does home rule shelter charter cities against a state assertion of land use authority that conflicts with local control? Although it is difficult to generalize without evaluating the specifics of a particular conflict, in most cases the answer will be no. To begin with, courts have very rarely held that any area is completely immune from state preemption. The touchstone of the state preemption inquiry is whether there is a statewide interest in regulating a matter and, relatedly, whether local control has a sufficiently substantial extra-local impact that state intervention is appropriate. In the land use context, courts have consistently held that the state can preempt local land-use authority because land use intersects with issues of statewide concern like regional land use planning, environmental protection, and housing affordability. It is rare, indeed, for the impacts of a local land use decision to be so fully contained within the boundaries of a municipality that it would not touch upon these statewide concerns. The externalities of one community’s land-use decisions often have considerable impacts on neighboring towns, the regional housing market, and the statewide economy.15 In fact, it is increasingly recognized that local land-use decisions actually have national and possibly international political and economic ramifications.16 For that reason, while courts have recognized the importance of land-use control to localities, they have never held that land use is an exclusively local function. To the contrary, as discussed herein, they have generally upheld state preemption of local land-use regulation.

Therefore, I expect courts to conclude that local governments have no immunity against state preemption of local land-use control. Perhaps anticipating exactly that outcome, defenders of local control in California like Beverly Hills councilmember John Mirisch are already preparing a backup plan: qualifying a ballot initiative that would amend the state Constitution to guarantee local control of land use against state preemption.17 I close this paper with thoughts on that idea. Such an initiative would confront few legal barriers, assuming it could raise the millions of dollars necessary to gather enough signatures to qualify the measure. But the initiative would be a remarkably bad idea—for those who favor local control. For one thing, a statewide referendum on the wisdom of exclusive local-land use control would probably end badly for its advocates. Polling shows that a majority of Californians favor state intervention to increase the supply of housing. But the problem is not only that a local-control initiative could lose badly. The initiative could also spark a counter-initiative that would aggressively preempt local-land use control, weakening local control of land use even further. In addition, even if a local-control initiative were successful, cities would still find themselves in a subordinate position relative to the state because the state controls most of the revenue sources that cities desperately need. So far, the state has resisted tying distribution of revenue to local governments meeting state land-use goals, but that could easily change if local governments try to change the balance of power between themselves and the state. Local governments should consider what happened the last time they tried that strategy. In 2010, cities succeeded in passing a ballot initiative that prevented the state from taking local money earmarked for redevelopment, so the state simply abolished the entire redevelopment process and has since refused numerous pleas by local governments to revive it. Redevelopment is a cautionary tale for local governments that seek to use the initiative process to wrest power from the state.

I. Basic Principles of Home Rule18

Local governments have no inherent right to self-rule. According to a long-standing judicial principle known as “Dillon’s Rule,” the constitutional source of which remains mysterious, local governments are creatures of the state. They have only the powers specifically delegated to them by the state and no rights against the state.19 In the early twentieth century, however, several groups of urban reformers sought to provide cities with a form of “home rule” that would enable them to act of their own initiative and give them some immunity against state interference in their affairs. The reformers were deeply concerned about what they saw as excessive meddling by corrupt state legislators into the affairs of urban government, and they attributed this situation in part to Dillon’s Rule.20 They envisioned local government as an imperium in imperio, or a “state within a state,” and they pushed to give local governments what became known as “imperio” home rule.21 Imperio home rule empowered cities to adopt a charter that would give them independent authority to initiate legislation on local affairs without an express delegation from the state, as well as immunity against state preemption of local regulation. Many states enacted constitutional amendments enshrining imperio home rule, and, because the power of home rule was thus constitutionally guaranteed, imperio home rule became known as “constitutional home rule.” An example of a constitutional home rule provision is Article 11, section 5(a) of the California constitution, which states in pertinent part as follows:

It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.22

Like most home rule provisions (and, frankly, like most of California’s Constitution), the meaning of section 5(a) is rather unclear. Nevertheless, one thing that section 5(a) does make clear is that local governments have the power to initiate legislation and enjoy immunity against state preemption with regard to “municipal affairs,” but are subject to state control with regard to “other matters” that are not municipal in nature. This structure is typical of imperio home rule provisions. Borrowing from the commerce-clause jurisprudence of the early twentieth century, which categorically distinguished “national” from “local” spheres of competence, the crafters of imperio home rule envisioned states and local governments as having distinct and mutually exclusive spheres of activity: local governments may only legislate in matters of “local” or “municipal” concern, and the state can only legislate in matters of greater than local concern, often called “statewide” or “general” matters.23

However, because state constitutions rarely specify what powers are “municipal” and what are “general” or “statewide,” an important role has necessarily been left for the courts to define the meaning of these terms. In general, as I discuss in the next section, courts have tended to construe the term municipal rather narrowly so as to limit the field of local initiatory power, and they have construed the term general or statewide quite broadly, especially where the legislature has expressed an intention to preempt local regulation. As a result, it is rare for the courts to find that any field of local regulation is immune from state preemption.

In fact, courts’ interpretations of imperio home rule provisions so tightly circumscribed municipal power that, by the 1950s, a new group of reformers began pressing for changes to home-rule doctrine. These reformers advocated a revised form of home rule under which states could simply delegate to local governments all the powers that states themselves possessed, regardless of whether the power was characterized as local or statewide (though the state could reserve to itself the right to act exclusively in specific subject-matter areas).24 According to Paul Diller, a law professor at Willamette University, this model “intended to substitute the legislature for the judiciary as the primary adjudicator of the extent of home rule powers”25 and accordingly became known as the “legislative” home-rule model (or alternatively the Fordham model or the NML/NLC model). A characteristic example of the legislative home rule model is Article 10, section 11 of Alaska’s Constitution, which states: “A home-rule borough may exercise all legislative powers not prohibited by law or by charter.”26 Today, although it can be difficult to ascertain which model a particular state follows because the constitutional language is often imprecise, almost half the states follow the older “imperio” model, and almost half follow the legislative model, while a few holdout states still adhere to Dillon’s Rule.27

In practice, the distinction between imperio and legislative home rule is not always clear. This lack of clarity is due in part to imprecision in the constitutional language, and in part to judicial interpretations that have diminished the distinction. Even in states that appear to have legislative home-rule provisions, courts have often barred cities from acting in matters deemed to be statewide,28 and on occasion they have even read legislative home-rule grants to imply a sphere of immunity from preemption.29

II. Home Rule and Preemption Today

In those few states following Dillon’s Rule, local governments have no immunity from state preemption on any issue. In principle, this is also true of legislative home rule states, although, as just described, courts have occasionally found a modest sphere of immunity implicit in the grant of legislative home rule. In those states still following the older imperio model, home-rule immunity theoretically grants a robust protection for charter cities against preemption. Today, however, it is relatively rare even in imperio states for a court to rule that a charter city is immune against a state assertion of supremacy, and courts have never held that any particular subject matter is so wholly committed to local governments that the state may never preempt municipal authority in that area.

There are several reasons why the home rule inquiry tends to favor the state. As an initial matter, the standards that courts have articulated for defining the line between municipal and statewide affairs are heavily weighted towards state preemption. Admittedly, general principles mean little in this inquiry because no precise mechanism exists for delimiting municipal from statewide affairs. The question must be answered “on an ad hoc basis, taking into consideration the facts of each case”30 Nevertheless, it is instructive to look at the general standards that courts use to resolve these cases.

Here are some of the key guidelines. First, the court will give significant weight to a determination by the state legislature itself that a matter is of statewide rather than purely local concern, though such a determination is not conclusive.31 Second, the dividing line between statewide and municipal affairs is not fixed, and so a matter that was at one time local in nature can become a matter of statewide concern.32 Third, courts will consider the need for statewide uniformity in the regulation of a particular matter.33 Fourth, if local regulation has significant impacts outside local borders, it is likely to be considered a statewide matter.34 Fifth and finally, courts may consider whether a particular matter has traditionally been regulated at the state or municipal level.35

A quick look at these factors reveals a decided slant in favor of the state. The first factor gives state legislatures substantial power to dictate the relationship between themselves and local governments—a power they are surely inclined to use to favor their own authority to preempt. The second factor anticipates that matters may evolve over time from local to statewide, but the judiciary has never intimated that the reverse can happen. In short, the universe of statewide matters is ever-expanding while the universe of local matters is constantly shrinking. “Uniformity” is a plausible argument in almost every case, and, as an institutional matter, courts tend to favor uniformity.36 Finally, most local regulation has some extraterritorial impact. One factor that may weigh in favor of local control in certain cases is tradition, although there are few fields that the state has traditionally left entirely to exclusive local control.

As discussed previously, general principles only go so far in dealing with such a fact-specific question as the distinction between state and municipal affairs. By the same token, however, the absence of fixed principles allows courts to easily place a thumb on the scale in favor of whichever side they prefer. In general, as the standards suggest, they have preferred the state. Courts commonly hold that most areas, including criminal law, public health, public safety, education, taxation, financial regulation, and regulation of utilities are statewide in nature.37 In doing so, the courts have often emphasized the extra-local impacts of local regulation and the need for statewide uniformity in a modern urbanized society. For example, in a very recent decision, the California Court of Appeals turned aside a home-rule challenge to a law called the California Values Act, which requires local law enforcement to refrain from cooperating with federal immigration authorities. The court observed that “California is highly urbanized and integrated” and that cities “flow seamlessly into one another.” Therefore, the court found that the effects of one charter city’s decision to opt out of the California Values Act “would not be limited to the city’s residents but would extend beyond the city’s borders.”38

To be sure, there are a few areas that courts have occasionally considered the exclusive province of municipalities, but they tend to be areas with few obvious extraterriorial impacts and a particularly weak case for statewide uniformity. For example, courts have sometimes held that certain types of financial decisions, such as the issuance of municipal bonds or the collection of special assessments, and personnel decisions such as the hiring, firing, wages and benefits of municipal employees are municipal affairs immune from preemption, although even in these areas many courts have held to the contrary.39 Decisions about the internal structure of local government, such as whether to have a strong or weak mayor system, when to hold local elections, whether to elect councilmembers at-large or by district, how to finance municipal elections, and so forth, have often also been considered solely municipal affairs, although again a substantial amount of precedent exists to the contrary.40

In general, attempting to identify discrete subject-matter areas as either “statewide” or “local” is likely to be fruitless. Though the Progressive-era architects of imperio home rule envisioned the spheres of municipal and statewide affairs as mutually exclusive, courts today recognize that in practice these affairs often overlap. For instance, in the landmark decision of California Federal Savings & Loan Ass’n v. City of Los Angeles (CalFed), the California Supreme Court instructed that courts must reject a “compartmentalized” view of governmental affairs, in which state and local governments each have fixed spheres of authority, and instead employ a “dialectical” analysis in which the local and state interests are both considered.41 This dialectical analysis invites the kind of multi-factorial inquiry described earlier.42 Notably, even under the dialectical approach, courts tend to favor the ability of the state to preempt local control. In CalFed, for example, the court observed that the statewide interest in a given matter is a “conceptual limitation” on the home-rule authority of charter cities. Accordingly, the court held that a state law addressed to a statewide concern and reasonably related to the resolution of that concern can constitutionally preempt a measure enacted by a charter city.43 Likewise, courts have held that “[w]hen there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state.”44

III. Preemption of Local Land Use Control

A. Why Local Land Use Control Is Not Constitutionally Guaranteed

It is tempting to assume that local control of land use must be constitutionally guaranteed because the common practice in most states is for local governments to exercise much day-to-day land use authority. In states that follow Dillon’s Rule, legislatures have broadly delegated land-use powers to local governments. In home-rule states, courts have inferred substantial local authority to regulate land use from constitutional grants of power to local governments, coupled with a historical tradition of local land-use regulation (although most states have a significant body of state law in this area). In Big Creek Lumber Co. v. City of Santa Cruz, for example, the California Supreme Court stated:

Land use regulation in California historically has been a function of local government under the grant of police power contained in Article 11, Section 7 of the California Constitution. . . . And the Legislature, when enacting state zoning laws, has declared its “intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters.” Thus, “[t]he power of cities and counties to zone land use in accordance with local conditions is well entrenched.”45

This sweeping affirmation of local power can easily be misread, however. While the court held that local governments have broad powers to initiate land-use legislation, it did not hold that local governments can act in the face of preempting state legislation. In fact, Big Creek recognized the power of the state to preempt local land-use control, but found that the state had not clearly expressed an intention to preempt the local land-use regulation at issue in that case. As the court stated, when it comes to land use regulation, “California courts will presume, absent a clear indication of preemptive intent from the legislature, that such regulation is not preempted by state statute.”46 Thus, the court actually acknowledged the power of the state to preempt local land-use control with a clear indication of preemptive intent.

There is no inconsistency between the court’s broad recognition of local power to regulate land use and its affirmation that the state can nevertheless preempt local land-use control because, as discussed earlier, modern courts reject the “compartmentalization” of governmental affairs into separate spheres for state and local activity and instead use a “dialectical” approach in which local governments have wide-ranging authority to act, but their authority is curtailed when it interferes with a superior state interest. Therefore, in most cases where the legislative intent to preempt local land use control is clear, the courts have held that cities—including charter cities—have no immunity against preemption.47

In fact, as noted previously, most states have enacted a significant body of legislation guiding and limiting local land-use discretion, and this legislation has usually withstood judicial scrutiny. In California, for example, local land-use control is subject to many state laws. Cities are required, among other things, to adopt a general plan with specific elements,48 plan and zone for a prescribed amount of housing at specified levels of affordability,49 report the environmental impacts of developments,50 adopt a uniform statewide Building Code,51 consider specific criteria when approving subdivisions,52 and grant residential development a prescribed “bonus” of additional density when the development meets certain state-determined thresholds.53 Cities are very limited in their ability to enact rent control54 or condominium-conversion laws,55 face restrictions on assessing and spending development fees,56 and have many other limitations on their land-use powers. Not all of these laws have been judicially challenged as violating a charter city’s home-rule powers, but those laws that have been challenged were all upheld by the courts.57

It makes sense that courts would uphold the power of states to preempt local land-use regulations because few areas of local regulation have greater statewide impacts than land use, and courts have been clear that the hallmark of a statewide interest is the presence of an “extramunicipal concern,” that is, whether the state law contains “a dimension demonstrably transcending identifiable municipal interests.”58 Local land-use decisions often have substantial impacts outside their borders. For example, if a city with high job growth refuses to permit sufficient new housing, the demand may have to be absorbed by communities located further from those jobs, increasing the length of commutes and worsening greenhouse gas emissions. If several cities in a particular region with high demand for housing fail to permit sufficient housing, then the scarcity will cause a region-wide and possibly statewide increase in rents and home prices.59

The scenario just described is not hypothetical. In high-opportunity areas throughout the country, cities do not permit nearly enough housing to meet the demand. For instance, cities in California—a state with enormous economic growth and demand for housing—use zoning regulations to place the vast majority of land off-limits for any kind of multi-family housing. Reliable reports estimate that apartments are banned on as much as two-thirds of the land in California.60 The effect of the apartment ban is that demand for housing cannot be accommodated by building housing at a greater density, and, given that the supply of land is necessarily limited, it is literally impossible for cities in California to accommodate an increase in demand for housing without changing the zoning laws. However, once in place single-family zoning is very rarely loosened, and the process of obtaining a zoning change is exceptionally burdensome and expensive.61 What is more, even in places that are already zoned for housing at the appropriate density, obtaining an approval is full of unpredictable delays, improper denials, and exorbitant fees that raise the cost of housing. Restrictive zoning has a very clear ripple effect, as recent research demonstrates that resistance to new housing by cities in coastal California has pushed up housing prices further inland.62 As a result of the cumulative reluctance by cities throughout the state to approve housing to meet the demand, California is forty-ninth out of the fifty states in homes per capita.63 It has the highest poverty rate when accounting for housing costs,64 home prices, and rents that are much higher than almost any place else,65 the highest rate of homelessness,66 and an unmet demand for up to an additional 3.5 million homes.

The courts have long acknowledged the significant extra-local impacts of local land-use regulations. The California Supreme Court, for example, observed that “municipalities are not isolated islands remote from the needs and problems of the area in which they are located.”67 Hence, when courts have upheld state preemption of local land-use regulation, they have affirmed the power of the state to address matters that “do not respect municipal borders,”68 such as preventing “haphazard community growth,”69 balancing the “ecological and environmental impacts of land use,”70 protecting “environmental and economic resources,”71 providing “comprehensive management and oversight” of land use matters, and alleviating the “shortage of sites available for affordable housing development.”72

In finding that the extra-local impacts of local land-use regulation justify state preemption, the courts have emphasized that “[a]s conditions in the state change, what was once a local concern may later become a matter of statewide concern controlled by general law.”73 For example, in a landmark case in which the states of California and Nevada created a regional authority to govern the Lake Tahoe region, the California Supreme Court held that the state could constitutionally preempt local land-use authority because

problems which exhibit exclusively local characteristics at certain times in the life of a community, acquire larger dimensions and changed characteristics at others. . . . When the effects of change are felt beyond the point of its immediate impact, it is fatuous to expect that controlling such change remains a local problem to be solved by local methods.”74

In other words, though local governments have traditionally exercised the lion’s share of land-use authority, that distribution of power is subject to change if statewide problems emerge that cause the state to assume some control of land use. In recent years, indeed, many states have experienced an acute shortage of housing, causing massive statewide problems. I have already described some of those problems in California, such as rising home prices, increased homelessness, and the highest poverty rate in the country. In addition to those concerns, there is now increasing evidence of the severe extra-local impacts of local land use regulation. One recent study found that the inability of workers to locate in the most economically productive regions due to high housing costs has diminished the entire United States’ economic performance by $1.27 trillion over the last generation.75 An abundance of recent research links restrictive local land-use regulations to higher greenhouse gas emissions and increased racial segregation in large metro areas.76

For all of these reasons, the severity of the housing shortage in places like California has become undeniable. The California Supreme Court recently stated:

It will come as no surprise to anyone familiar with California’s current housing market that the significant problems arising from a scarcity of affordable housing have not been solved over the past three decades. Rather, these problems have become more severe and have reached what might be described as epic proportions in many of the state’s localities.77

The court’s conclusion was echoed by the California legislature, which recently declared in the preamble to an important new piece of housing legislation that the state “has a housing supply and affordability crisis of historic proportions,” citing a wealth of statistical evidence regarding the statewide impacts of the housing shortage.78 The legislature also recognized that the housing shortage contributed to climate change by displacing people to locations far from job centers, thus requiring longer commutes. “California’s cumulative housing shortfall therefore has not only national but international environmental consequences.”79

B. Narrow Tailoring and the Case for Local Control

What has been said so far sufficiently demonstrates that the state has a strong interest in preempting local land-use control when local control has significant statewide consequences, such as the present housing crisis. As I have explained, however, many state courts employ a “dialectical” approach to home rule in which both the state and local interest in regulating a matter are considered. In California, for example, when a law implicates a conflict between state and local interests, the courts are supposed to then inquire whether the state law is “narrowly tailored” to avoid excessive interference with local control.80 To date, the courts have given little guidance on what it means for a law to be narrowly tailored in this context. In its only decision addressing this question, though, the California Supreme Court in CalFed held that a state law preempting local taxation of savings banks was narrowly tailored because the interference in local affairs was “substantially coextensive with the state’s underlying regulatory interest.”81 In other words, as long as the means the state chooses to address a statewide interest is “reasonably related” to its interest, it is sufficiently tailored to withstand judicial scrutiny.82

In the land use context, as described earlier, local land use regulation has severely restricted the operation of regional housing markets and thereby created a serious housing crisis. For that reason, state preemption of local land use regulation to loosen local restrictions and enable the housing markets to function more smoothly should in most cases be sufficiently “coextensive with the state’s underlying regulatory interest” in addressing the housing crisis to survive a home rule challenge. One question this conclusion raises is when, if ever, state regulation would not be reasonably related to the state’s interest. An example might be where the state’s enactment has no clear connection to a statewide interest, or where local land use control of a particular matter has so little extra-local impact that it should be considered exclusively local and immune from state preemption.83 A few cases from the early twentieth century hold that matters such as the location of oil and gas wells or the heights of local buildings are purely local affairs.84

Courts should be careful, however, before concluding that any instance of local land use regulation is so discrete that it will not have statewide impacts justifying preemption. It is fairly clear today that even seemingly small land use decisions can have significant statewide effects. This is so because, as discussed earlier, most cities tend to have startlingly similar zoning ordinances. One municipality’s decision to enact height limits on homes might have few external impacts, but when hundreds of municipalities across the state make the same decision, it can have enormous statewide repurcussions on the housing supply. Likewise, if dozens of cities restrict the locations of oil wells, it may become impossible to find sites for oil wells anywhere in the state.

A timely example of a small decision with huge statewide impacts is the question of “accessory dwelling units” (ADUs). In recent years advocates have pushed for cities to allow as of right on parcels zoned for single-family residential use the construction of a smaller second residence, sometimes called a “granny flat” or “backyard cottage.”85 These ADUs could be occupied by a family member or friend or leased to a tenant. In isolation, a single community’s decision whether to permit ADUs on single-family parcels would probably have little effect outside local borders. But, in reality, scores of cities have placed severe limitations on the ability of homeowners to construct and lease ADUs to tenants. Considering that, in many high-opportunity areas like California, most of the land is zoned to prohibit every housing type aside from single-family homes, this restriction amounts to a nearly statewide moratorium on ADUs, severely constricting the statewide housing supply in many places. Under those circumstances, a blanket state legalization of ADUs could dramatically increase the state’s housing capacity and relieve the demand pressure. Indeed, that is exactly what the state of California did over the last few years. It initially reduced the ability of local governments to regulate ADUs, then finally swept away that ability almost entirely, authorizing the placement of at least two ADUs—one separate backyard cottage and one attached “junior” apartment—on every parcel zoned single-family residential throughout the state, in one swoop nearly tripling the state’s zoning capacity.86 Cities throughout the state saw a dramatic increase in ADU applications almost immediately after the reforms, with Los Angeles reporting an increase from just eighty applications in 2016 to nearly two thousand in 2017.87 There can be little doubt that this small change in local land-use regulations addressed a statewide concern in alleviating the state housing crisis.

Nevertheless, were a city zoning law to address a truly unique local condition with few statewide consequences, state preemption of such a law might be considered insufficiently tailored. A historic preservation law that requires owners of historically significant buildings to maintain the facades could be an example. Even here, however, attention to context is important because historic preservation and design review are often used by municipalities as another way of keeping housing prices high and preventing unwanted development.

So how much weight should courts give in the dialectical inquiry to the local interest in regulating land use? Under the CalFed standard, as long as the state is acting to address a statewide concern and the means the state has chosen is reasonably related to that concern, the local interest is largely immaterial.88 Presumably, the local interest in land use regulation is protected by the requirement that the state enactment must not be any broader than its interest. To be sure, there is some language in CalFed suggesting that a conflict between the state and local interests may be resolved by determing which interest is “more substantial,”89 but the court expressly disclaims such a “weighing” of competing interests in favor of the “substantially coextensive” test.90

Admittedly, there is some contradictory language in the caselaw regarding whether the court’s role in a preemption inquiry is to balance the respective interests of the state and local governments, or whether the matter must be resolved in favor of the state once the state has asserted a statewide interest and enacted measures that are reasonably tailored to advance that interest.91 For the sake of argument, then, it is useful to consider the relative strength of the local interest in regulating land use as opposed to the state’s interest in addressing a statewide housing crisis. The case for local control typically boils down to two arguments. First, every locality’s land-use conditions are unique, and only local governments have the local knowledge necessary to tailor land-use decisions to local conditions. Second, because local governments are closer to the people, they can more effectively represent the interests of their constituents. It is difficult to evaluate these arguments in a vacuum, outside the context of specific legislation, but, at least in the context of state efforts to address a severe housing shortage, they are unlikely to be convincing.

The first argument local governments often make is that land use decisions require sensitivity to unique local conditions that only local governments possess, rather than the “top-down” or “one size fits all” approach of a state mandate. This argument is superficially attractive, but it actually gets things backwards. While there is of course some variation among local zoning ordinances, there is a surprising amount of uniformity in local zoning laws’ treatment of housing. For the past century, ever since the U.S Supreme Court declared apartment buildings to be “parasites” in single-family home districts, cities across the country have treated single-family home districts as inviolate and multi-family housing as if it were a plague. It is commonplace for zoning ordinances to bar or severely limit every type of housing other than single-family homes.92 Furthermore, cities generally eschew “by-right” zoning for multi-family housing in favor of multi-year discretionary processes that require developers to follow vague standards and ensure a long, expensive and unpredictable path to approval.93 Ironically, local zoning control is itself a one-size-fits-all straitjacket. Conversely, state legislation that aims to loosen zoning restrictions by allowing multi-family housing, would actually introduce diversity and counteract the one-size-fits-all character of local land use control.

The second argument, that local governments more effectively represent the will of local people than a more centralized authority, is perhaps more persuasive, but it proves too much. Though it may indeed be true that local governments are more responsive to the concerns of local residents than the state, that is exactly the problem that state preemption is needed to solve. Cities too often protect the interests of their residents at the cost of harming people who live outside the community. Because local officials are elected by local residents, they have an incentive to act solely for the benefit of those residents and ignore the effects of their decisions on outsiders. Indeed, this local parochialism is one of the principal causes of the current housing crisis, as cities are protecting home values and quality of life for local homeowners while increasing housing costs and greenhouse gas emissions, worsening segregation and displacement, and reducing productivity across the state and beyond. State preemption is necessary precisely to counteract self-interested local decisionmaking and ensure that the broader statewide interest is protected.

In most cases, anyway, the conflict between state preemption and local control is a false dichotomy. In practice, almost all state legislation preempting local land use regulation leaves a huge amount of room for local discretion. Consider, as an example, what was considered one of the most ambitious pieces of state land use regulation ever, California’s Senate Bill 50 (S.B. 50). S.B. 50 would have required localities to allow denser housing near transit and in certain communities where jobs and good schools were concentrated. At the same time, though, the bill left ample room for local control. For example, cities were required to loosen zoning regulations to permit denser housing areas only in areas that were already zoned residential, so the state legislation deferred to local judgments about what land was appropriate for residential development. And cities were only required to upzone to a limited density and height, allowing municipalities to determine whether additional densities and heights should be permitted. The bill had no effect on local design or historic preservation controls, or the ability of local governments to assess fees or exactions for new development.

Thus, even if we were to interpret the “narrow tailoring” inquiry as a nuanced balancing test requiring searching judicial scrutiny of the competing interests, the state would still generally prevail in most cases. Indeed, in two recent cases, appellate courts in California determined that a challenged state law was narrowly tailored because it left ample room for the exercise of local control.94 For example, in Anderson v. City of San Jose, the court held that the state Surplus Land Act, which requires cities disposing of surplus land for affordable housing to make some of the housing units available at designated affordability levels, was sufficiently narrowly tailored.95 The court reasoned that local governments retained the authority to designate land as surplus and to decide whether to dispose of land for affordable housing; the state law only took effect in the event the local agency made both of those decisions. Thus, the state law did not unduly interfere with local control.96

As I have presented it, local land-use control in general embodies the worst of local parochialism. It has all the downsides of parochial decision-making—an exclusive focus on the local at the expense of the regional—while providing few of the offsetting benefits of local knowledge and local diversity that local parochialism should offer. If that is accurate, then the question might be asked why local governments should have the power to zone at all, even in the absence of state preemption. If nothing is truly “local” about zoning, perhaps it should not be considered a local matter on which municipalities have the power to initiate state legislation.97 I would not go quite this far, however. Recall that the modern approach to home rule is a “dialectical” one, in which local and state power considerably overlap. On this view, just as the state legislature may legislate in areas that have a local dimension, local governments may also legislate in areas that have a statewide dimension, absent state preemption. If a conflict arises between the two, however, the state should generally prevail. In any event, the sort of cavalier statements about “diversity,” “local knowledge,” and “one-size-fits-all mandates” that often get thrown around in the debate about land-use regulation are not particularly helpful or accurate.

C. Caselaw Supporting Local Immunity from State Preemption

For all of the reasons discussed earlier, courts have rightly held that charter cities are not immunized against state preemption of local land-use control. By contrast, it is hard to identify many appellate cases squarely holding that local land-use control is immune from state preemption. Perhaps the case that comes closest is the Colorado Supreme Court’s decision in Town of Telluride v. San Miguel Valley Corp.98 In Telluride, the Colorado state legislature passed a statute that prohibited charter cities from condemning property outside their territorial limits for parks or other similar purposes. The Supreme Court struck down the statute, holding that the Colorado constitution reserves to charter cities the power to engage in extraterritorial condemnation, and the state therefore could not place limits on the ability of charter cities to exercise that power. According to Daniel Rodriguez and Lynn Baker, Telluride illustrates the proposition that “states are quite limited in their ability to displace local regulations dealing with land.”99

However, there is less to Telluride than meets the eye. Article XX of the Colorado Constitution expressly confers on every charter city the power to condemn property “within or without its territorial limits.” The Court simply held that the state could not abrogate a power expressly given to charter cities in the state Constitution. The Court did not even bother undertaking the traditional judicial analysis of determining whether extraterritorial condemnation was a “municipal affair” or whether there was a statewide interest in local control of extraterritorial condemnation because the Constitution had already resolved that question by expressly enumerating extraterritorial condemnation as a power of charter cities. At most, Telluride stands for the limited principle that states cannot abrogate local control over a matter that the state Constitution expressly reserves to charter cities.

Aside from Telluride, the argument that land use is an exclusively local affair is primarily supported by questionable dicta in older cases. As just one example of how this argument generally proceeds, advocates of local control sometimes point to the 1962 case of Fletcher v. Porter100 for the principle that land use is an exclusively local affair.101 In reality, Fletcher does not deal with preemption at all, but the question of whether voters can exercise land-use powers via initiative. In dicta, the court does suggest that planning and zoning decisions are local matters with “no statewide consequences.”102 However, ten years later in CEEED v. California Coastal Zone Conservation Commission,103 an appellate panel held that a state law could preempt a charter city’s land use decision-making power and clarified that Fletcher was “not authority for the proposition that planning and zoning are exclusively municipal affairs.”104 The CEEED court further stated: “Although planning and zoning in the conventional sense have traditionally been deemed municipal affairs, where the ecological and environmental impact of land use affect the people of the entire state, they can no longer remain matters of purely local concern.”105 The most charitable interpretation of Fletcher is that, in 1962, land use and zoning were thought to have few effects outside local boundaries, but by the time CEEED was decided in 1974 it had become clear that land use was often a matter of statewide concern. As I observed earlier, courts have stressed that matters perceived as purely local at one point in time can become statewide as circumstances change. Indeed, the early 1970s were a period when the extralocal impacts of local land use regulations were becoming evident. During this time, state legislatures as well as state courts became increasingly assertive in restricting local land use powers, and in doing so they often observed the extralocal impacts of local land use regulation.106 In fact, in 1971, the California Supreme Court held that the state could constitutionally preempt local land-use authority because “problems which exhibit exclusively local characteristics at certain times in the life of a community, acquire larger dimensions and changed characteristics at others.”107 As a result, land use could no longer be considered, if it ever had been, an exclusively local matter.

As an aside, if Fletcher’s almost sixty-year-old dicta were accurate and land use was in fact an exclusively local affair, it would mean that courts would have to invalidate an enormous amount of state legislation dealing with land use adopted since the early 1970s.108 It is unlikely that courts will want to upend an entire system of land-use regulation that has been crafted and refined over the last generation.

D. The Puzzle of City of Vista

In a recent decision, State Building & Construction Trades Council of California v. City of Vista,109 the California Supreme Court introduced some confusion into the analytical framework for addressing conflicts between a charter city’s exercise of regulatory authority and the state’s assertion of supremacy. Though Vista is not a case about land use and its application may be relatively limited for reasons discussed below, it is worth examining in some detail because Vista is the California Supreme Court’s most recent pronouncement on the scope of a charter city’s home-rule powers.

Vista held that the state could not require charter cities to pay prescribed minimum wages (prevailing wage) to workers on city construction jobs, finding that the payment of wages for such jobs was a municipal but not a statewide concern. The court’s opinion focused largely on how to determine the relevant statewide concern. Though the court accepted the statewide interest in establishing regional and statewide labor standards, it found that this interest was too “abstract” to justify a state law that would increase a charter city’s labor costs. According to the court, “Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity.”110 Therefore, the state could not merely identify an “indirect effect on the regional and state economies” to justify interference with the city’s ability to spend its own money.111 What more the state would need to do to satisfy this standard, the court did not say.

The Vista court further reasoned that a statewide interest would more readily be found in cases where the state law has a broad application than a narrow and particularized application, and in cases where the state prescribed procedural rather than substantive standards.112 On the merits of the case, the court held that the state prevailing-wage law did not address a statewide concern because it was narrowly addressed to the public works projects of public agencies, rather than a general minimum wage law, and imposed substantive, rather than procedural, obligations on charter cities.113

Analytically, Vista is a complete mystery and gives little guidance to lower courts. Initially, while admonishing that the state interest cannot be merely “abstract,” the court failed to articulate the level of particularity at which a state interest should be identified or, in other words, how to distinguish an impermissibly abstract state interest from an appropriately particularized one. In holding that the interest in a prevailing-wage law was too abstract, the court reasoned as follows:

the question presented here is not whether the state government has an abstract interest in labor conditions and vocational training. Rather, the question presented is whether the state can require a charter city to exercise its purchasing power in the construction market in a way that supports regional wages and subsidizes vocational training, while increasing the charter city’s costs.114

It is far from clear how one would apply this reasoning in other cases. The most plausible reading of this language, as the dissent surmises, is that the asserted statewide concern must be balanced against the municipal interest rather than considered standing alone.115 That reading makes some sense, but the question of whether the statewide interest is sufficiently important to outweigh the municipal interest in setting wages is entirely different from the question the court purported to answer, which was whether the state had asserted a statewide interest at all. It is essential to keep these questions separate because the statewide interest cannot be balanced against the municipal interest until the statewide interest is first identified.

This analytical confusion then led the court to a significant error. As the dissent pointed out, the court did not actually balance the relevant interests at all, but treated the city’s fiscal autonomy as an automatic trump card, using precisely the sort of “compartmentalization” of matters into fixed spheres that the court has rejected.116 According to the dissent, the court “simply dismisses the state’s interest as ‘abstract’ without any meaningful evaluation of its factual and historical underpinnings.”117

Further, if municipal fiscal autonomy were the trump card that the Vista majority makes it out to be, that principle would invalidate a huge number of state laws as applied to charter cities. As the dissent observed, almost every state law affects the way that cities spend money, and many of them impose substantial additional costs on municipalities.118 Indeed, in just the past month, an appellate court in California upheld a state law that dictated to charter cities how to dispose of their own surplus lands—a major intrusion into local fiscal autonomy.119

Similarly, the court’s broad/narrow and procedural/substantive distinctions hold little water. The assertion that a broad, sweeping law is more likely to be upheld than a narrow, particularized one is puzzling because a broader law by definition will be more intrusive into local affairs than a narrow one. It makes little sense to say that a state law that is more intrusive into local affairs stands a better chance of being upheld against a home rule challenge than one that is less intrusive. Indeed, as I discussed earlier, under California law, part of the dialectical inquiry into the appropriate balance between state and local power is to evaluate whether the state law is “narrowly tailored” to avoid excessive interference into local affairs. It is paradoxical to require both that the law be broad and not narrow, but also narrowly tailored.

The Vista court’s claim that a procedural law is more likely to be upheld than a substantive one is somewhat more defensible, although, of course, a procedural law is generally more “narrow” than one that is substantive and so undercuts the broad/narrow distinction. In any event, in practice, the state frequently preempts substantive aspects of local law, and the substantive nature of the preemption has never been determinative in resolving conflicts between the state and local governments. Indeed, in just the past month, two appellate courts in California have upheld state laws that preempt substantive regulations enacted by charter cities, finding that the substantive nature of the preemption was not a decisive factor.120

In sum, Vista is an analytically weak case, so weak that lower courts are already declining to follow it. Vista would probably have little applicability to most land-use cases anyway. Unlike the state’s prevailing wage law at issue in Vista, which the court held rested on the merely “indirect effect on the regional and state economies” of local wage laws, cities directly control the local supply of housing through local zoning regulations and therefore have a direct effect on home prices, vehicle miles traveled, and racial and class segregation. Indeed, in a recent decision, an appellate court in California held that the state had the power to require cities to dispose of surplus land for affordable housing despite the impact on local fiscal autonomy, distinguishing Vista on the grounds that the municipal disposition of surplus land had a direct rather than an indirect effect on the shortage of sites for affordable housing, in light of the “regional spillover effects of insufficient housing.”121

IV. Be Careful What You Wish for: A Proposed Ballot Measure to Preserve Local Land-Use Control

Perhaps aware of how precarious their legal position is, advocates for local control of land-use decision-making in California have recently floated the prospect of qualifying a ballot initiative that would constitutionally guarantee local control of land use.122 In this concluding section, I would like to explain why that idea is extraordinarily bad and will probably have the opposite of the desired effect.

For one thing, while proponents of local control are very loud and forceful, it is not clear exactly how numerous they are among the electorate at large. Public-opinion polling in the last year shows that a majority of Californians want the state to take more aggressive steps to address the housing shortage, even if it means intruding on local control.123 This is a problem for local control advocates because the initiative process tends to reward breadth rather than depth of support. The risk here is not simply that a local-control initiative could lose at the polls. If such an initiative were qualified, advocates for state preemption would likely attempt to qualify a counter-initiative, perhaps one enacting the failed SB 50 that aggressively preempts local land-use control.

Even if the local control ballot initiative were victorious, however, it could still lose by winning. Local governments would be wise to remember what happened the last time they successfully passed a ballot initiative to constitutionally preserve local control against state intervention. In 2008, the state of California had a fiscal crisis and eyed the coffers of local redevelopment agencies as a way out. Redevelopment agencies were local-governmental entities controlled by cities that were able to issue bonds to finance the redevelopment of areas determined to be “blighted” and capture a significant portion of the property-tax revenue generated in the redevelopment area.124 By 2008, redevelopment agencies throughout the state held about $12.9 billion in assets. Legally, however, redevelopment agencies were considered creatures of the state, so when the state demanded that redevelopment agencies hand over a portion of their wealth to cover the state’s debts, the agencies had no recourse—except the ballot box. In response to the state’s threat, the League of California Cities qualified a measure for the ballot in November 2010 called Proposition 22 that would protect local redevelopment money from being forcibly redistributed by the state. The measure passed, but, in an ironic twist, Prop 22 proved not to be redevelopment’s savior, but its undoing. The state legislature responded to Prop 22 by simply abolishing redevelopment altogether, and the California Supreme Court upheld the state’s action.125 Despite many efforts over the years to revive redevelopment, Governor Jerry Brown and most recently Governor Gavin Newsom have vetoed every redevelopment bill to land on their desk.126

The tactical error the League of Cities made was thinking it could simply write a constitutional rule that would reverse the traditional state supremacy over local governments in one discrete area, without regard to the many other ways in which the state can exercise that supremacy and the deference that courts typically give to the state in displacing local authority. In this case, even if local governments were successful in passing a ballot initiative to reserve local control of land use authority, the state would still have many mechanisms at its disposal to ensure that cities comply with state mandates. Most importantly, the state controls most of the money that flows to local governments—especially after the demise of redevelopment, which may be why governors have been reluctant to revive it. Governor Newsom has already discussed plans to tie state funding to compliance with state land-use objectives, and, although he has backed off those plans in the face of local resistance, he would likely be galvanized to follow through on his plans if local governments were to brazenly undermine his authority by constitutionally enshrining local land-use control.127 And any effort by local governments to obtain local fiscal autonomy via the ballot box would require the Herculean effort of convincing voters to weaken the sacrosanct Proposition 13.

In addition, enshrining local control via the ballot would be counterproductive. Local control may be a winning proposition for affluent cities like Beverly Hills, Newport Beach, and Palo Alto, but it is a loser for many other cities. While local governments enjoy total control over land-use entitlements within their own borders, they have no control over decisions made by neighboring municipalities, regardless of how significant the impacts of one city’s land-use decisions may be upon another. If one city chooses, for example, to approve development that affects traffic in a neighboring town, that neighboring town has no say in the matter. In effect, one city’s “local control” means less local control for another. Hence, at least in some circumstances, cities may affirmatively desire to have local control displaced by state or regional planning agencies. But a ballot initiative preserving local control of land-use decisions would make any kind of regional land use planning difficult, if not impossible. The California experience instructs that any ballot initiative creating permanent structural change only makes government less effective, because such initiatives are inflexible and incapable of responding to changing needs.


Although local control of land use regulation is highly valued by its advocates, it is not constitutionally guaranteed. As it is generally practiced, local land use regulation restricts the supply of homes and thereby raises housing prices, increases sprawl and vehicle miles traveled, worsens homelessness, harms regional economies, and exacerbates segregation by race and class throughout metropolitan regions and states. Therefore, state preemption of local land use control to address these concerns advances a substantial statewide interest and should be upheld against home rule challenges.


1. See Scott Wiener, Senator Wiener’s Statement on Huntington Beach Suing to Overturn Housing Streamlining Law He Authored, SB 35, (Jan. 27, 2019),

2. See John Mirisch, The Protecting Communities and Local Rights Amendment—A Not-So Modest Proposal, Fox & Hounds (Apr. 9, 2018),

3. Recent empirical research confirms long-standing anecdotal observations about the dominance of homeowners in local politics and their general resistance to new development. See, e.g., Katherine Levine Einstein, et al., Who Participates in Local Meetings? Evidence from Meeting Minutes, 17 Persps. on Politics 28 (2018) (finding that participants at local land-use meetings are disproportionately likely to be homeowners and oppose new development, especially housing).

4. See Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115, 1133–41 (1996) (“When one locality acts to exclude a use, its neighbors may feel compelled to adopt comparable regulations to protect themselves from the growth they fear will be diverted to them by the initial locality’s regulation.”). For example, a report by the California Legislative Analyst’s Office demonstrates that coastal cities have almost uniformly opposed most new housing development, creating a severe housing shortage and pushing up housing prices further inland. See California Legislative Analyst’s Office, California’s High Housing Costs: Causes and Consequences 10–11 (Mar. 17, 2015) [hereafter LAO Report].

5. The state of California, for example, faces a shortage of up to two million homes—the number of homes that would be necessary just to meet the current housing demand. See McKinsey & Co., A Toolkit to Close California’s Housing Gap: 3.5 Million Homes by 2025 (Oct. 2016), (estimating current shortage at about two million).

6. See Assemb. B. 68, 2019–2020 Leg., Reg. Sess. (Cal. 2019) (limiting local discretion to deny or regulate construction and use of backyard cottages); S.B. 330, 2019–2020 Leg., Reg. Sess. (Cal. 2019) (streamlining zoning process); S.B. 1333, 2017-2018 Leg., Reg. Sess. (Cal. 2018) (mandating that charter cities conform zoning laws to a general plan); S.B. 35, 2017–2018 Leg., Reg. Sess. (Cal. 2017) (streamlining zoning process); Laura Bliss, Oregon’s Single-Family Zoning Ban Was a ‘Long Time Coming, CityLab (July 2, 2019),; (on Oregon’s H.B. 2001 overriding single-family zoning).

An extremely ambitious and controversial bill in California that would have mandated zoning changes near transit and in jobs-rich areas to permit more housing was defeated on a very close vote in January 2020. See, e,g., S.B. 50, 2019-2020 Leg., Reg. Sess. (Cal. 2018) (mandating zoning changes near transit and in jobs-rich areas to permit more housing). After the bill’s defeat, Senate President pro tempore Toni Atkins pledged that California would pass a major piece of zoning reform legislation by the end of the year. See Conor Dougherty, California, Mired in a Housing Crisis, Rejects an Effort to Ease It, N.Y. Times (Jan. 30, 2020), However, the legislature failed to pass even modest zoning reform legislation in 2020, leaving the future of California’s zoning reform movement in doubt.

7. See Kriston Kapps, Denser Housing is Gaining Traction on America’s East Coast, CityLab (Jan. 3, 2020),; Kriston Kapps, With New Democratic Majority, Virginia Sees a Push for Denser Housing, CityLab (Dec. 20, 2019),

8. As mentioned in note 6 supra, a controversial bill in the California legislature called S.B. 50 that would have required cities to rezone some land to permit multi-family housing was defeated largely due to opposition from affluent suburban communities. See Liam Dillon, The Revenge of the Suburbs: Why California’s Effort to Build More in Single-Family Neighborhoods Failed (May 22, 2019, 5:00 AM),

9. See infra Parts I and II.

10. Interestingly, Virginia is one of very few states lacking home rule entirely, yet the legislative effort to modestly reform zoning there died due to opposition from local interests, demonstrating that even where local governments have no formal authority to resist state preemption, they still have formidable political power. See Ally Schweitzer, An Ambitious Housing Proposal in Virginia Is Dead—For Now, (Jan. 23, 2020),

11. See Order Denying Petition for Writ of Administrative Mandamus, San Francisco Bay Area Renters Federation v. City of San Mateo, No. 18-CIV-02105 (Cal. Super. Ct. Oct. 24, 2019); Order on Demurrer, Housing California v. City of San Jose, No. 16CV297950 (Cal. Super. Ct. Oct. 18, 2016). The author is counsel for one of the plaintiffs in the San Mateo case, the California Renters Legal Advocacy and Education Fund (CaRLA-EF), in an unrelated matter involving the same piece of legislation being challenged in the San Mateo case, California’s Housing Accountability Act, Gov. Code § 65589.5. See Petition for Writ of Mandamus, California Renters Legal Adv. & Ed. Fund v. City of Huntington Beach, No. 30-2019-01140855-CU-WM-CJC (Cal. Super. Ct. May 26, 2020).

12. See Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654 (Ct. App. 2019).

13. The city actually filed two nearly identical lawsuits challenging the constitutionality of several recently enacted bills, and is apparently considering filing more lawsuits challenging additional laws. See City of Huntington Beach v. State, No. 30-2019-01044945-CU-WM-CJC (Cal. Super. Ct. Jan. 17, 2019) (challenging SB 35 and AB 101); City of Huntington Beach v. State, No. 30-2019-01048692-CU-WM-CJC (Cal. Super. Ct. Feb. 1, 2019) (challenging SB 166 and SB 1333). The author is currently counsel in litigation against Huntington Beach in an unrelated matter, described in note 11, supra.

14. See Petition for Writ of Mandamus and Complaint for Declaratory Relief [hereafter Petition], Huntington Beach, No. 30-2019-01044945-CU-WM-CJC, at 7. For some background, see Ethan Elkind, Huntington Beach Strikes Back: City Sues California over Housing Streamlining Law, (Jan. 28, 2019 5:30 PM),

15. See, e.g., Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 Harv. Envt. L. Rev. 445, 456–61 (2012) (describing how municipalities externalize negative impacts of land use decisions onto neighboring communities); Laurie Reynolds, Home Rule, Extraterritorial Impact, and the Region, 86 Denv. U. L. Rev. 1271, 1297–302 (2009); LAO Report, supra note 4, at 12–13 (reporting that land-use restrictions in coastal cities in California push up housing prices in inland cities).

16. See Vicki Been, et al., Supply Skepticism: Housing Supply and Affordability 29 Housing Pol’y Debate 25, 31–33 (2019) (describing broad effects of restrictive local land-use regulations, including increased greenhouse gas emissions, racial segregation and diminished economic productivity); Chang-Tai Hsieh & Enrico Moretti, Housing Constraints and Spatial Misallocation, 11 Amer. Econ J.: Macroeconomics 1 (2019) (finding that restrictive zoning regulation in high-opportunity areas lowered aggregate economic growth by $1.27 trillion over the last fifty years because of inability of workers to relocate near jobs).

17. See Mirisch, supra note 2.

18. I provide a more theoretical treatment of home rule and preemption in an earlier piece, Kenneth A. Stahl, Local Home Rule in the Time of Globalization, 2016 BYU L. Rev. 177. State preemption of local authority has become a major issue in recent years, resulting in considerable literature on the topic. See, e.g., Nestor Davidson, The Dilemma of Localism in an Era of Polarization, 128 Yale. L.J. (2019); Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995 (2018); Erin Adele Scharff, Hyper Preemption: A Reordering of the State-Local Relationship?, 106 Geo. L.J. 1469 (2018); Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018); Kenneth Stahl, Preemption, Federalism and Local Democracy, 44 Fordham Urb. L.J. 133 (2017). These and other sources are collected in Richard Briffault et al., The New Preemption Reader (2019).

19. See Dale Krane et al., Home Rule in America: A Fifty-State Handbook 10–11 (2001).

20. See id.; David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2257, 2285–88 (2003).

21. See Krane et al., supra note 19, at 11–12.

22. Cal. Const. art. XI, § 5(a).

23. See Stahl, supra note 18; Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1349–55 (2009).

24. See Nat’l Mun. League, Model State Constitution § 8.02 (1968); see also Barron, supra note 21, at 2325–27.

25. See, e.g., Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1126 (2007).

26. Alaska Const. art. 10, § 11.

27. See Baker & Rodriguez, supra note 23, at 1374 app. (comprehensive appendix listing home rule status of all fifty states). According to Baker and Rodriguez’s study, twenty-three states have imperio home rule, twenty-three have legislative home rule, and the remainder do not have home rule.

At the time of this writing, the National League of Cities just recently released a new framework for home rule and a new set of model home-rule constitutional provisions that differ dramatically from both the imperio and legislative frameworks. If adopted, the new model home-rule principles would significantly change the balance of power between cities and states. See National League of Cities, Principles of Home Rule for the 21st Century (2020), For a (very) critical analysis of the new model home rule principles, see David Schleicher, Constitutional Law for NIMBYS: A Review of ‘Principles of Home Rule for the 21st Century’ by the National League of Cities, Ohio St. L.J. (forthcoming),

28. In states with legislative home rule, courts have often found local actions impliedly preempted by state law due to the asserted statewide nature of the regulated activity. See Mack Paramus Co. v. Mayor & Council of Borough of Paramus, 511 A.2d 1179 (N.J. 1986) (listing need for statewide uniformity as one factor in implied preemption analysis); Duff v. Town of Northampton, 532 A.2d 500, 504 (Pa. Commw. Ct. 1987) (upholding a local hunting ordinance preempted by state law because “municipalities have been granted limited police power over matters of local concern” and the scope of municipal power “does not extend to subjects inherently in need of uniform treatment or to matters of general public interest which necessarily require an exclusive state policy”).

29. See, e.g., City of Tucson v. State, 273 P.3d 624 (Ariz. 2012) (finding that apparent legislative home-rule language subjecting city charters to “the laws of the state” only permitted preemption in matters of statewide concern; form of local elections was not a statewide concern and thus immune from preemption).

30. City & Cty. of Denver v. State, 788 P.2d 764, 767–68 (Colo. 1990).

31. See Bishop v. City of San Jose, 460 P.2d 137 (Cal. 1969).

32. See Pacific Tel. & Tel. Co. v. City & Cnty. of San Francisco, 336 P.2d 514 (Cal. 1959).

33. See Johnson v. Bradley, 4 Cal. 4th 389 (Cal. 1992), Telluride, 3 P.3d at 37.

34. See Telluride, 3 P.3d at 37; Committee of Seven Thousand v. Superior Ct., 754 P.2d 708 (Cal. 1988). According to Baker and Rodriguez, “[T]he two factors that seem to loom largest [in judicial determinations of whether a power is statewide or local] are the extraterritorial effects of the local regulation, and the need for statewide uniformity in the relevant regulatory area.” See Baker & Rodriguez, supra note 23, at 1349; see also Laurie Reynolds, Home Rule, Extraterritorial Impact, and the Region, 86 Denv. U. L. Rev. 1271 (2009).

35. See Kalodimos v. Vill. Village of Morton Grove, 470 N.E. 2d 266, 274 (Ill. 1984).

36. See Barron, supra note 20, at 2347 (noting that courts’ reluctance to expansively interpret municipal power under imperio home rule grants may reflect a “general judicial uneasiness with creative local actions and a corresponding preference for uniformity”).

37. See Osborne Reynolds, Local Government Law §§ 6.5, 6.7 (5th ed. 2019).

38. City of Huntington Beach v. Becerra, 257 Cal. Rptr. 3d. 458, 486 (Ct. App. 2020).

39. For a collection of conflicting authorities, see John Martinez, 1 Local Government § 4:12; see also Reynolds, supra note 37, § 6.4. Baker and Rodriguez argue that, in fact, home rule provides little protection for local personnel decisions and that “courts almost always rule that local interests give way to state interests in a general labor law.” Baker & Rodriguez, supra note 23, at 1360–61. An unusual case involving the ability of states to preempt local wage laws is the California Supreme Court’s recent decision in State Building & Construction Trades Council of California v. City of Vista, 54 Cal. 4th 547 (2012). I discuss City of Vista extensively infra section III.D.

40. See Martinez, supra note 39, § 4:11; Reynolds, supra note 37, § 6.4.

41. California Fed. Sav. & Loan Assn. v. City of Los Angeles, (CalFed), 812 P.2d 916, 923 (Cal. 1991).

42. Colorado’s approach is somewhat similar to California’s, recognizing, in addition to the state and local spheres of competence, a “mixed” sphere that concerns both state and local governments. Town of Telluride v. Lot Thirty-Four Venture, LLC, 3 P.3d 30, 39 (Colo. 2000); see also Martinez, supra note 40, § 4:12 (“That a home rule entity has some measure of local autonomy in regard to regulatory and police powers generally does not derogate from the state’s superior exercise of police powers in the interest of its statewide constituency. . . . The general pattern of reported cases has been to sustain a constitutional home rule entity’s exercise of its regulatory and police powers over local activities and conditions except when in conflict with state legislative enactments on behalf of a recognizable state interest.”).

43. See CalFed, 283 Cal. Rptr at 578.

44. Abbott v. City of Los Angeles, 349 P.2d 974 (Cal. 1960); see also Baggett v. Gates, 649 P.2d 874 (Cal. 1982)

45. Big Creek Lumber Co. v. City of Santa Cruz, 136 P.3d 821, 828 (Cal. 2006) (citations omitted). Notably, Big Creek is an interpretation of Article 11, section 7, which confers a general police power on all counties and cities, not Article 11, section 5(a), which confers a special power on charter cities to initiate legislation regarding “municipal affairs.” Thus, Big Creek is not a case about a charter city’s home rule powers, but the powers of all cities and counties under section 7.

46. Id. at 827.

47. See, e.g., Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654 (Ct. App. 2019) (holding that state Surplus Land Act, requiring cities to dedicate portion of surplus land to affordable housing when disposing of such land, preempted charter city authority to control disposition of surplus land); Lippman v. City of Oakland, 229 Cal. Rptr. 3d 206 (Ct. App. 2017) (state Housing Law and Building Code preempted contrary provisions enacted by charter city); City of Malibu v. Cal. Coastal Comm’n, 18 Cal. Rptr. 3d 40 (Ct. App. 2004) (rejecting argument that state statute ordering state agency to prepare local coastal program for a charter city unconstitutionally preempted city’s right to local control of land use); City of Los Angeles v. State, 138 Cal. App. 3d 526 (Ct. App. 1982) (holding that charter city of Los Angeles was not immunized against a state legislative requirement that the city conform its zoning regulation to a general plan); CEEED v. Cal. Coastal Zone Conservation Comm’n, 118 Cal. Rptr. 315, 324 (Ct. App. 1974) (noting state program empowering state agency to issue development permits in the coastal zone was not an invalid intrusion into powers of a charter city because “the municipal affairs concept does not preclude the state from regulating land use when necessary to further the state’s interest”); Consol. Edison Co. of New York, Inc. v. Town of Red Hook, 456 N.E.2d 487 (N.Y. 1983) (local regulation of power-plant siting preempted); Weir v. Rimmelin, 472 N.E.2d 341 (Ohio 1984) (regulation of outdoor advertising along interstate and primary highways matter of statewide concern).

48. Cal. Gov’t Code § 65302 (2019).

49. Id. § 65580 et seq.

50. Cal. Pub. Resources Code § 21000 et seq. (1998).

51. Cal. Health & Safety Code § 17910 et seq.; §§ 17922, 17950.

52. Cal. Gov’t Code § 66410 et seq. (1974).

53. Id. § 65915.

54. See Costa-Hawkins Rental Housing Act, Cal. Civ. Code § 1954 (1996). Costa-Hawkins was revised somewhat in 2019’s A.B. 1482, but instead of restoring local control, A.B. 1482 imposes on landlords a state-prescribed set of rules regarding rent increases and tenant rights. A.B. 1482, 2019–2020 Leg., Reg. Sess. (Cal. 2019).

55. See Ellis Act, Cal. Gov’t Code § 7060 (1985).

56. See Quimby Act, Cal. Gov’t Code § 66477 (2015).

57. In addition to the cases cited supra note 47, see also Buena Vista Gardens Apt. Ass’n v. City of San Diego Plan. Dep’t., 220 Cal. Rptr. 732 (Ct. App. 1985) (holding that charter city was required to conform its general plan to the statutory requirements).

58. See Cal. Fed. Sav. & Loan Assn v. City of Los Angeles, 283 Cal. Rptr. 569, 578 (Cal. 1991).

59. See LAO Report, supra note 4, at 7, 12 (describing how failure to entitle housing by coastal California cities has driven up housing prices in inland cities); Been, et al., supra note 16, at 32–33 (collecting studies on how restrictive local land use regulations increase length of commutes and greenhouse gas emissions).

60. According to a recent survey of California cities, “Most of the land in California jurisdictions is zoned for single-family housing, and very little land is zoned to allow for multifamily housing.” Sarah Mawhorter & Carolina Reid, Terner Center, Local Housing Policies Across California 4 (Dec. 2018), For instance, seventy-five percent of Los Angeles’s residential land is zoned to exclusively permit single-family housing, while over ninety percent of San Jose’s residential land is zoned exclusively for single-family homes. See Emily Badger & Quoctrung Bui, Cities Start to Question an American Ideal: A House with a Yard on Every Lot, N.Y. Times (June 18, 2019),

61. See Robert C. Ellickson, The Zoning Strait-Jacket: The Freezing of American Neighborhoods of Single-Family Homes, (2020), (reporting findings from empirical study that once restrictive single-family zoning is adopted, it is very rarely loosened).

62. See LAO Report, supra note 4, at 10–11.

63. See McKinsey & Co., supra note 5, at 3.

64. LAO Report, supra note 4, at 27–28.

65. See id. at 5–6 (noting that California’s housing costs are much higher than the national average, far higher than other large states, and higher than anywhere in the United States except Hawaii).

66. See U.S. Interagency Council on Homelessness, Cal. Homelessness Statistics, (last visited Oct. 2, 2020) (estimating that as of January 2018, one quarter of the nation’s entire homeless population lives in California).

67. Assoc. Home Builders v. City of Livermore, 18 Cal. 3d 582, 607 (Cal. 1976). For that reason, “[t]o hold . . . that defendant city may zone the land within its border without any concern for [nonresidents] would indeed ‘make a fetish out of invisible municipal boundary lines and a mockery of the principles of zoning.’”

68. City of Malibu v. Calif. Coastal Commission, 18 Cal. Rptr. 3d 40, 45 (Cal. App. 2004).

69. See City of Los Angeles v. State, 138 Cal. App. 3d 526, 533 (Ct. App. 1982) (quoting Selby Realty Co. v. City of San Buenaventura, 514 P.2d 111 (Cal. Ct. App.1973)).

70. CEEED v. Cal. Coastal Zone Conservation Comm’n, 118 Cal. Rptr. 315, 323 (Ct. App. 1974).).

71. City of Malibu v. Cal. Coastal Comm’n, 18 Cal. Rptr. 3d 40, 45 (Ct. App. 2004).

72. See Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654, 677 (Ct. App. 2019).

73. Los Angeles, 138 Cal. App. 3d at 532.

74. People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 497–98 (Cal. 1971).

75. Chang-Tai Hsieh & Enrico Moretti, Housing Constraints and Spatial Misallocation, 11 Amer. Econ J.: Macroecon. 1 (2019).

76. Many of these studies are discussed and summarized in Been et al., supra note 16, at 26–27 (home prices), 32 (greenhouse gas emissions and racial segregation).

77. Cal. Bldg Industry. Indus. Ass’n v. City of San Jose, 61 Cal.4th 435, 441 (2015).

78. See Housing Accountability Act, Cal. Gov’t Code § 65589.5(a)(2)(A)(2020).

79. Id. § 65589.5(a)(2)(I).

80. State Bldg. & Constr. Trades Council v. City of Vista, 279 P.3d 1022, 1035 (Cal. 2012).

81. Cal. Fed. Sav. & Loan Assn. v. City of Los Angeles, 812 P.2d 916, 931 (Cal. 1991).

82. See id. at 925. Though some subsequent decisions have interpreted the “narrow tailoring” prong to require a tight relationship between means and ends and a searching inquiry of the relative state and local interests, CalFed itself makes clear that “narrow tailoring” simply means that there is a reasonable relationship between the state’s goal and the means chosen to address the goal.

83. Thanks to Noah Kazis for raising this point.

84. See Van Meter v. Westgate Oil Co., 32 P.2d 719 (Okla. 1934) (oil and gas wells); Ekern v. City of Milwaukee, 209 N.W. 860 (Wis. 1926) (height limits). These cases are probably not good law today, as they date from the era when courts saw state and local governments as operating within “separate spheres,” rather than having overlapping areas of authority.

85. See John Infranca, Housing Changing Households: Regulatory Challenges for Micro-Units and Accesory Dwelling Units, 25 Stan. L. & Pol’y Rev. 53 (2014).

86. See Dylan Casey, Making Sense of This Year’s ADU Legislation, (Sept. 13, 2019),

87. See Josh Cohen, California ADU Applications Skyrocket After Regulatory Reform, (Jan. 4, 2018),

88. California Fed. Sav. & Loan Assn. v. City of Los Angeles, 812 P.2d 916, 925, 931 (Cal. 1991).

89. Id. at 926.

90. Id. at 930–31.

91. See id.; see also Town of Telluride v. Lot Thirty-Four Venture, LLC, 3 P.3d 30 (Colo. 2000) (home rule immunity question involves “weighing the respective state and local interests implicated by the law”).

92. See Daniel P. Selmi et al., Land Use Regulation 65 (4th ed. 2012) (“Zoning ordinances throughout the United States tend to be remarkably similar in their features despite the fact that no overarching federal law dictates uniformity.”). According to a recent survey of California cities, “[m]ost of the land in California jurisdictions is zoned for single-family housing, and very little land is zoned to allow for multifamily housing.” Mawhorter & Reid, supra note 60, at 4. For instance, seventy-five percent of Los Angeles’s residential land is zoned to exclusively permit single-family housing,while over ninety percent of San Jose’s residential land is zoned exclusively for single-family homes. See Emily Badger & Quoctrung Bui, Cities Start to Question an American Ideal: A House with a Yard on Every Lot, N.Y. Times (June 18, 2019),

93. See Mawhorter & Reid, supra note 60, at 14–15 (reporting that multi-family housing is rarely allowed as of right).

94. See City of Huntington Beach v. Becerra, 257 Cal. Rptr. 3d. 458, 486–88 (Ct. App. 2020); Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654, 675–77 (Ct. App. 2019).

95. See Anderson, 255 Cal. Rptr. 3d at 678-–79.

96. See id.

97. My thanks to Tim Mulvaney for raising this point.

98. Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161 (Colo. 2008). The only other appellate decision of which I am aware that struck down state legislation preempting local land use regulation is Canton v. State, 766 N.E.2d 963, 968 (Ohio 2002). In Canton, the Ohio Supreme Court struck down a state law preempting a local ban on mobile homes, finding that the state legislation did not satisfy Ohio’s unique test for determining whether state legislation is sufficiently “general” for purposes of home rule analysis. According to the Ohio Supreme Court, for a state enactment to be a general law it must, among other things, be part of a statewide and comprehensive legislative enactment, and impose a rule of conduct upon citizens generally rather than upon municipal bodies. See id. at 968, 969. Ohio’s home rule approach appears to be highly idiosyncratic. Courts in most states do not hold that a state legislature can only preempt if it comprehensively regulates an entire field, nor do they prohibit states from imposing rules of conduct directly upon municipal bodies. Rather, as described above, state legislatures can usually preempt local enactments as long as they are acting to address a matter of statewide concern and the means chosen are reasonably related to that concern.

99. See Baker & Rodriguez, supra note 23, at 1358–60.

100. Fletcher v. Porter, 21 Cal. Rptr. 452 (Ct. App. 1962).

101. See Petition, Huntington Beach, No. 30-2019-01044945-CU-WM-CJC, at 8.

102. Fletcher, 21 Cal. Rptr. at 455.

103. CEEED v. Cal. Coastal Zone Conservation Comm’n,118 Cal. Rptr. 315 (Ct. App. 1974)).

104. Id. at 323.

105. Id.

106. The movement toward increased state control of land use in the 1970s was known as the “quiet revolution.” See Sara C. Bronin, The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States, 93 Minn. L. Rev. 231, 232 (2008).

107. People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 497–98 (Cal. 1971).

108. See infra text accompanying notes 48–57 (describing body of state law regulating land use).

109. State Bldg. & Constr. Trades Council v. City of Vista, 279 P.3d 1022 (Cal. 2012).

110. Id. at 1031.

111. Id.

112. See id. at 542, 543.

113. See id. at 564–65.

114. Id. at 584.

115. See id. at 559 (Liu, J., dissenting) (“If the court uses the term ‘abstract’ to mean that the present inquiry requires us to consider the statewide concern not in isolation but in relation to the asserted municipal interests, then I agree.”).

116. See id. at 1048–49.

117. See id. at 559–60.

118. See id. at 585.

119. See Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654, 677 (Ct. App. 2019).

120. See City of Huntington Beach v. Becerra, 257 Cal. Rptr. 3d. 458, 477–80 (Ct. App. 2020); Anderson v. City of San Jose, 255 Cal. Rptr. 3d 654, 675–77 (Ct. App. 2019).

121. Anderson, 255 Cal. Rptr. 3d at 670–73.

122. See Mirisch, supra note 2.

123. A poll commissioned by California YIMBY, one of SB 50’s main sponsors, shows strong public support for the bill as well as many of its underlying policies. See Memo from Lake Research Partners to Calfornia YIMBY and Interested Parties (May 16, 2019),; see also Mark Baldassare et al., Public Policy Institute of California, Californians and the Environment 16 (July 2019) (poll showing strong majority in support of changing land use and transportation policy to encourage less driving).

124. See, e.g., Casey Blount et al., U.S. Dep’t Hous. & Urb. Dev. Office of Pol’y Dev. & Rsch,., Redevelopment Agencies in California, History, Benefits, Excesses and Closure (Jan. 2014).

125. See id. I discussed the full saga of redevelopment’s decline in a blog post entitled Court to Redevelopment Agencies: Drop Dead (Or, It’s TKO for TIF in CA), Land Use Prof Blog (Dec. 31, 2011),

126. See Hannah Wiley, Newsom Rejects Housing Bill That Would Have Raised Billions for Projects, Sacramento Bee (Oct. 13, 2019 5:28 PM),

127. Liam Dillon, Newsom Delays Threat to Block Transportation Funds to Cities That Flunk Housing Goals, L.A. Times (Mar. 11, 2019),

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Kenneth Stahl

Professor Kenneth Stahl ([email protected]) is a Professor of Law and the Director of the Environmental, Land Use and Real Estate Law Program at Chapman University Fowler School of Law in Orange, California. As described infra notes 12 and 14, he is also counsel in a pending matter in California Superior Court that may implicate some of the legal issues discussed in this article. See Petition for Writ of Mandamus, California Renters Legal Adv. & Ed. Fund v. City of Huntington Beach, No. 30-2019-01140855-CU-WM-CJC (Cal. Super. Ct. May 26, 2020). I am grateful for excellent feedback received at the Suffolk University Zoning Roundtable, and especially to Tim Mulvaney and Chris Elmendorf for their incisive comments.