07 - July 24, 2025 - Article 34 Application (provided to Council on July 24, 2025)
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OFFICE OF THE CITY ATTORNEY
10300 TORRE AVENUE • CUPERTINO, CA 95014
TELEPHONE: (408) 777-3403 • FAX: (408) 777-3401
TO: Cupertino City Council
FROM: Floy Andrews, Interim City Attorney
DATE: July 24, 2025
RE: Article 34 Voter Approval of the proposed Mary Avenue Project
(APN: 326-27-053)
Question Presented
Does the proposed Mary Avenue Project (“Project”) need further voter approval under
Article 34 of the California Constitution? The Project plans to deliver 21 extremely low
income and low-income housing units, representing 55% of the Project’s 40 units, which
meets the threshold for Article 34 review, unless otherwise exempted.
Short Answer
The units have already been approved by Santa Clara County voters in 1998, when
voters approved Measure A. Measure A authorized the development of a limited
number of rental housing units in Santa Clara County for disabled and low-income
households, and more than enough units remain available to cover the 40 units
proposed to be developed here. The Project does not require further voter approval.
Article 34 Voter Approval of the proposed
Mary Avenue Project (APN: 326-27-053)
July 24, 2025
Page 2
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Discussion
Section 1 of Article 34 states that no “low rent housing project” shall be acquired or
developed by a state public body unless a majority of the qualified electors of the city or
county where the project would be sited approve it. Put simply, the California
Constitution “requires referendum approval in the affected community before a ‘low
rent housing project’ can be developed, constructed, or acquired." California Housing
Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175.
The State legislature has limited the scope of Article 34 since its adoption over seven
decades ago. Now specific forms of public assistance available to private housing
developers to build low-income housing would exempt a project from the Article 34
voter approval requirement. (See Cal. Health & Safety Code § 37001.) For example, a
privately owned development is exempt if it contains less than 50% low-income
housing and the development is not exempt from paying local property taxes.
Additionally, new construction is also exempt if it uses low-income housing tax credits
from the California Tax Credit Allocation Committee.
Moreover, Article 34 does not require voter approval for a specific project. Instead, a
city or county may authorize a maximum number of affordable units in their
jurisdiction thereby providing the city or county the freedom to select, at a later date,
how and where those low-income units will be built or acquired. Even a broader
general vote on a “not to exceed” number of total units based on a percentage of the
total units in the area, satisfies the Article 34 requirement. These methods provide local
jurisdictions great flexibility to develop, construct, or acquire low-income units limited
only by a set percentage of the total units in the area.
Santa Clara County’s Measure A authorized the County to partner with private
developers to develop housing for disabled individuals and low-income families, not to
exceed 1/10th of 1% of the total housing units within a participating city. The Measure’s
impartial analysis explained that it was intended to provide the County with the
required authority to build a capped number of low-income housing units using a
calculation based on the 1990 census. In effect, voters approved the development of 540
low-income units, countywide, per year, with any unused allocation being carried over
from one year to the next. According to a May 19, 2023 letter from Santa Clara County
to Charities Housing, there were over 7,600 units authorized and available at that time.
Article 34 Voter Approval of the proposed
Mary Avenue Project (APN: 326-27-053)
July 24, 2025
Page 3
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The Project may also be funded by certain state tax credit proceeds, which would also
likely exclude the Project from Article 34 review.
Conclusion
The Project will provide more than 49% low-income housing and will be funded by
government sources. If it does not receive tax credit proceeds or otherwise satisfy an
available exemption, it would require voter approval under Article 34.
Voters approved Santa Clara County’s Measure A in 1998, which authorized the
development of a substantial number of rental housing units in Santa Clara County for
disabled and low-income households. There remain more than enough units available
now to cover the 40 units proposed to be developed here. The Project does not require
further voter approval.