Supreme Court denies certiorari in inclusionary zoning case

As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing.  616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the California Supreme Court that also upheld such ordinances and found them not to be takings of property without just compensation.  Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015). Cf., Common Sense Alliance v. Growth Mgmt. Hearings Bd., 2015 WL 4730204 (Wash. Ct. App. 2015) (general "legislative" regulations that apply to classes of property or development, rather than individualized permit conditions, are not subject to the Nollan/Dolan nexus requirements).

These rulings have generally not applied the restrictive "exactions" test in Nollan and Dollan that requires a proportionate nexus between a building permit condition and the externalities sought to be prevented by the zoning regulation. One analyst has characterized these ordinances (which either require developers to set aside a percentage of units for low-income housing or to pay a fee in lieu of such setasides) as ways to prevent the harms of exclusionary zoning.  see Case Note on California Building Industry Ass'n v. City of San Jose: California Supreme Court Upholds Residential Inclusionary Zoning Ordinance, 129 Harv. L. Rev. 1460 (2016), (interpreting the case as allowing regulation that avoids the harms associated with exclusionary zoning).

See also: Takings, Zoning