March 28, 2024

Millbrae Article 34 Lawsuit


California’s Article 34 was passed in 1950 in direct response to the passage of the Federal Housing Act of 1949, which outlawed explicit racial segregation in public housing. The amendment’s proponents campaigned on rhetoric painting integration and affordable housing as a threat to capitalism in America and stirred fears about “minority pressure groups.” Until voters overturn it, Article 34 will continue to require voter approval for all publicly funded low-income housing, and block affordable housing in many areas rich in amenities and resources. These impacts also perpetuate segregation and the state’s racial wealth and homeownership gaps.

Now, the City of Millbrae is using Article 34 as the basis of a lawsuit against San Mateo County, attempting to stop the Homekey development located at 1390 El Camino Real, Millbrae, California from moving forward. That is why on Tuesday, March 12th, we sent the following letter to each member of Millbrae’s City Council, and the California Department of Housing and Community Development’s Housing Accountability Unit, as we believe the City’s current actions are not compatible with a compliant housing element:

Dear Mayor Fung, Vice Mayor Goodman, and Councilmembers Cahalan, Papan, and Schneider,

Silicon Valley @ Home is a nonprofit advocacy organization that supports affordable housing throughout Santa Clara County. SV@Home works with a broad coalition of strategic partners to address the urgent housing needs of Santa Clara County’s diverse residents. We advocate for solutions including increasing production of homes at all income levels, especially affordable housing; preserving existing affordable housing; and protecting our community’s most vulnerable residents from displacement.

Although the City of Millbrae is outside the geographic area of our focus, we are compelled to write in response to the City’s lawsuit (Millbrae v. County of San Mateo), which has statewide implications, and its dangerous and egregious invocation of Article 34 of California’s Constitution. Article 34 was passed in 1950 via an initiative sponsored by the California Real Estate Association, in direct response to the passage of the Federal Housing Act of 1949, which outlawed explicit racial segregation in public housing. The real estate industry, unable to stop the passage of the Housing Act of 1949 at the federal level, used tactics such as Article 34 to slow and stop its implementation at the state and local levels.

In 2022, the California Association of Realtors publicly acknowledged that the organization has previously backed racially discriminatory housing policies, including Article 34, the effects of which continue to perpetuate the state’s racial wealth and homeownership gaps and enable economic and racial segregation in California neighborhoods. In an attempt to make some amends for these deliberate harms, the California Association of Realtors is cosponsoring a 2024 bill that would overturn Article 34, but unfortunately not before the City of Millbrae has an opportunity to attempt to use it one last time.

Decades ago, the California Association of Realtors (then known as the California Real Estate Association) explicitly and vocally opposed neighborhood integration, saying it could negatively affect property values, and endorsed redlining and racially restrictive covenants. When the Federal Housing Act of 1949 outlawed explicit racial segregation in public housing, the California Real Estate Association sought to prevent integration by targeting all income-based housing. They argued that taxpayers had a right to vote on low-income housing developments because they were publicly funded infrastructure like schools or roads and thus could create taxpayer debt. 

Newspaper ads paid for by the Realtors blamed “minority pressure groups” for advocating for public housing and against the campaign for Article 34, using language playing to racist fears about integration. Echoing the Realtors of 1950, some current Millbrae councilmembers have repeatedly used language and sentiments that play into unfounded fears about future occupants of the development and suggested these residents be subject to onerous rules to which other renters are not subject.

In making the claims contained in Millbrae v. County of San Mateo, the City of Millbrae is seeking to overturn all current exemptions to Article 34 based on funding sources that have been enacted in the Legislature, due to unsubstantiated impacts to the City’s “tax revenues, nearby businesses, and… loss of local jobs” from the closure of a single hotel. A decision in favor of the Petitioners could have immediate and severely detrimental impacts on affordable housing development across the state, and invalidate multiple acts of the Legislature intended to address the state’s homelessness and housing crisis. 

Already, Article 34 exacerbates the housing and homelessness crisis by increasing the burden of the complex and challenging process of building affordable housing. California currently has only 22 affordable rental homes for every 100 extremely low-income households. If Millbrae prevails in this suit, affordable housing development may slow, become more costly, or be blocked completely from the communities where it is most needed. This impacts all Californians but especially targets low-income residents and people of color in our state.  

Voters have the opportunity to remove Article 34 from the California Constitution this November with a constitutional amendment in SCA 2 (Allen), cosponsored by the California Association of Realtors in an effort to make amends for past harms. If voters approve the amendment, low-income housing will no longer be subject to voter approval or limited to exempted funding sources. In the meantime, we urge the City of Millbrae to withdraw the deeply abhorrent Millbrae v. County of San Mateo and cease opposition to the Homekey development located at 1390 El Camino Real, Millbrae, California.