SAN JOSE – A recent petition for writ of certiorari was denied by the U.S. Supreme Court in a continuing battle against inclusionary zoning involving the California Building Industry Association (CBIA) and the city of San Jose.
zoning, in which developers are required to provide some of their units as low
or moderate-income housing, is supported by more than 170 jurisdictions in
California. The city of San Jose has put an ordinance into place that requires
new residential developments with 20 or more units to provide at least 15
percent of the for-sale units for inclusionary housing.
and property rights advocates, however, are still unwilling to comply.
lawsuits to limit or even eliminate inclusionary zoning have been brought
against the government, even though the government generally offers discounts
on fees and density bonuses allowing the construction of more units when a
location is required to abide by inclusionary zoning.
really all about is a struggle by property rights advocates to get more legal
protection for a stronger set of rights,” Professor Tim Iglesias of the
University of San Francisco, an expert on housing laws, told
the Northern California Record.
Through exaction, a
condition put in place by the government on a parcel of land requiring that the
developer alleviate negative impacts of the new development, the government is
allowed to apply these inclusionary zoning conditions. Developers and property
rights' advocates who are against inclusionary housing, however, often seek to find that the government has overstepped its exaction authority, thus turning the
condition into unconstitutional taking. They cite the outcomes of two
cases concerning government-enacted property requirements now known as Nollan/Dolan.
Simply put, in these cases the government was found to have
attempted to require particular public land usage from private owners, but did
not have viable evidence of an
“essential nexus” and “rough proportionality” through the condition, or viable
evidence supporting that dedication of the proposed section of property to
public use that would mitigate the negative impacts of the overall new development
on the community.
The cases are often referenced and used in property law
challenges to identify if the government is asking too much of a developer.
A debate exists in lower courts about whether conditions apply to only administrative property actions or if they could also
be used in cases concerning legislative acts, such as the one between the CBIA
and the City of San Jose.
question that Justice (Clarence) Thomas mentions in his concurrence in the U.S. Supreme
Court’s denial is that this issue with exactions and when a government
regulation is an exaction, and when it needs to meet these Nollan/Dolan tests,
is unresolved in terms of the country,” Iglesias said.
He said people are still trying to figure out “whether or not those rules
actually apply when the local government is applying a particular ordinance to
a particular development in what’s called an administrative hearing or
administrative process, or whether those rules also apply to legislatively
Legal Foundation, a private property rights law firm assigned to the case after
the plaintiff lost the original trial, attempted to bring the case to the
Supreme Court as a vehicle for the ongoing concern with the proper
utilization of Nollan/Dolan through a facial attack, which claims that
the ordinance is unconstitutional.
However, an appellate court, and the Supreme Court all sided against hearing the case
again. They found that it was not only a normal land use regulation - in which price control is being used to achieve what the local government
wants - but also that the case did not meet their needs for the development of Nollan/Dolan.
“When the U.S.
Supreme Court denied review that really meant that, as far as it goes for now,
that is the law at least in California. And so, therefore, other governments
will feel comfortable moving forward, enforcing ‘for sale’ inclusionary housing
if they already have that, or now adopting that if they don’t have it already,”
Foundation must find new ways to present the case. Though it can be brought
forth as an as-applied challenge, which would state that the requirement is
unconstitutional in a particular way to the Association or their property, the
plaintiff may have more success by finding another case that better exemplifies
inclusionary zoning ordinances as exactions or regulatory taking, and enticing
the Supreme Court to reconsider the ordinance.
case, the California Building Industry Association may have a chance to stop
the ordinance from affecting its new developments.
haven’t by any means given up, and they will continue to bring claims to
challenge inclusionary zoning,” Iglesias explained. “But for now, at least on
‘for sale’ inclusionary zoning, the local government has won for now. It’s up
to the challengers to figure out how to attack it from a new basis or in a way
that might win.”