De Kamp, 062383 CAAGO, AGO 83-205

Docket Nº:AGO 83-205
Case Date:June 23, 1983
Court:California
 
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JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General
AGO 83-205
No. 83-205
California Attorney General Opinion
Office of the Attorney General State of California
June 23, 1983
         THE HONORABLE RALPH B. JORDAN, COUNTY COUNSEL, KERN COUNTY, has requested an opinion on the following question:          Where a county-wide low rent housing measure was defeated by the county electorate as a whole, does the fact that the measure received a favorable vote within a particular unincorporated area of the county nevertheless authorize low rent housing for that area?          CONCLUSION          A favorable vote within a particular unincorporated area of a county on a county-wide low rent housing measure does not authorize low rent housing for that area where the measure was defeated by the county electorate as a whole.          ANALYSIS          The Housing Authorities Law, first enacted in 1938 (Stats. 1938, Ex.Sess., ch. 4), is found in section 34200 et seq., of the Health and Safety Code.1 Section 34240 provides that there is "[i]n each county and city . . . the housing authority of the county or city." However, a housing authority is not activated, nor may it transact business in the county or city where it "exists," unless formal action is taken by the governing body of the city or county declaring a need for the authority to function. (§§ 34240-34244.)          A county housing authority which has been activated may operate and exercise its powers within the territorial boundaries of any city where the city has not activated its own housing authority if the consent of the city governing body has been obtained. (See §§ 34208-34209.) The powers of a housing authority include the power to develop, construct or acquire housing for persons of low income, that is, "low rent" housing projects. (See § 34310 et seq.) Although housing authorities function within cities and counties, they are considered "agencies of the state." As such, the courts have held that both the decision of a city or county to activate an authority, and the decision of an authority to acquire a housing project are "administrative" as opposed to "legislative" acts. As such, they have been held to be not subject to local referendum. (See Housing Authority v. Superior Court (1950) 35 Cal.2d 550.)          In response to this conclusion of the courts, the people adopted article XXXIV of the California Constitution at the November 1950 general election. (See James v. Valtierra (1971) 402 U.S. 137, 138-139, which case held article XXXIV to be constitutional.) That article provides in paragraph one thereof:
"Section 1. No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election."
         Succeeding paragraphs define for purposes of the provision the terms "low rent housing project," "persons of low income," "state public body," which would include a housing authority, and "Federal Government."          Shortly after the adoption of article XXXIV this office issued an opinion as to the manner in which this constitutional provision should be implemented where a county housing authority proposed "to establish low rent housing projects in unincorporated areas of the county but within or near unincorporated centers of population bearing place names." (18 Ops.Cal.Atty.Gen. 103 (1951).) Stated otherwise, we were required to interpret article XXXIV insofar as its election requirements apply not only to the electorate of a city or of a county, but of a "town." At such time, and now, there was and is no legal unit of government in California which is an unincorporated "town." Accordingly, the basic question resolved itself into whether the requisite election to establish housing projects in population centers with commonly accepted place names, but in unincorporated territory, required a vote of the electorate of the entire county, or only a vote of the voters residing in such unincorporated place (or "town").          We resolved this dilemma by resort to the apparent purpose of article XXXIV as gleaned from the voters' pamphlet for the November 1950 general election. This was to require that proposed housing projects be approved by "interested citizens," who we concluded were "members of the particular community in which the project is to be established, not . . . the citizens of another community in another part of the same county." (Id., at pp. 106-107.) Noting that the constitutional provision used both the terms "city" and "town" we ultimately concluded that the election need not nor should not be county-wide, stating:
"Primarily, however, we are persuaded by the apparent intent of Article XXXIV to require the submission of each such proposal to the electors
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