Housing Policy

Supreme Court Declines To Hear Challenge to Local Inclusionary Zoning Ordinance

The decision leaves intact local governments’ power to force private developers to build affordable housing.

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The Supreme Court on Monday declined to hear a case challenging the way local government across the U.S. deal with home developers.

Cherk v Marin County. is a lawsuit brought by Dart and Esther Cherk against Marin County, California, in which the pair challenged the county government's $40,000 fee to subdivide a vacant plot of land they owned and had hoped to sell.

The fee was part of a Marin County ordinance that requires people subdividing parcels of land to either devote a portion of that land to affordable housing or else pay an in-lieu affordable housing fee.

The intention of the law was to combat the sky-high housing costs in Marin County, which is located just north of San Francisco. The Cherks countered that subdividing their land did nothing to make housing less affordable, and therefore there was no reasonable relationship between the fee they were being charged and the problem the county was trying to address.

"When government conditions a building or other permit there has to be some relationship between the condition and the demand. They can't just make unreasonable demands," says Jeffrey McCoy, an attorney with the Pacific Legal Foundation, which represented the Cherks.

If a new business development were likely to increase traffic, a local government would have the right to require the developer create a traffic mitigation plan before granting them a permit, McCoy says. But the county couldn't require the developer to plant more trees.

Similarly, without showing that reasonable relationship between subdividing their lot and housing prices, says McCoy, the government was placing an unconstitutional condition on the Cherks' lot split in violation of the Fifth and 14th Amendments.

This argument has significance well beyond just the Cherks: it could potentially be used to invalidate hundreds of "inclusionary zoning" ordinances passed by local governments across the country.

These policies differ in their specifics but they typically require private developers to rent a portion of new units in their projects to lower-income renters. Local governments have used this policy as a way of creating affordable housing without having to pay for it out of public coffers.

Recent research suggests that inclusionary zoning is not very effective at achieving its goals. One study, published by George Mason University's Mercatus Center, found that these laws just encourage developers to build more profitable but harder-to-lease luxury buildings, with the higher rents being used to recoup the costs of the below-market units they're forced to build.

If the Cherks had been able to get their case before the Supreme Court and convince a majority of the justices to rule in their favor, local governments around the U.S. would no longer be able to condition permits on the creation of affordable units. This is broadly the standard the Supreme Court has taken in past land use cases, holding that regulatory requirements put on building permits must bear a rational, proportional relationship to the impacts they seek to mitigate.

Lower courts, however, have been reticent to apply this test to inclusionary zoning ordinances, reasoning that these laws are not intended to mitigate the effects of new development, but are instead meant to further the government's legitimate interest in making housing affordable.

Both the Marin County Superior Court and the California Court of Appeals deployed this reasoning in their rulings siding with Marin County, saying that the development fees it had imposed on the Cherks were well within the county's ability to regulate land use.

Now that the Supreme Court has declined to take up the case, those lower court rulings stand. CityLab noted back in October that the court has passed on several other opportunities to take up cases involving inclusionary zoning.

McCoy says that he hopes the Court returns to these land use issues again. The current regime gives the government far too much power over people's property, he says.

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  1. This illustrates one of my many peeves with government these days. We’re supposed to be a nation of laws, not intents; and of limited powers, no tlimited privileges.

    Lower courts, however, have been reticent to apply this test to inclusionary zoning ordinances, reasoning that these laws are not intended to mitigate the effects of new development, but are instead meant to further the government’s legitimate interest in making housing affordable.

    I understand why people use due process and stuff to attack and defend policies; due process implies there has to be a logical connection. It’s the same with “rational basis”. But they have nothing to do with the Constitution and a government limited to explicitly authorized powers.

    We have long since become a nation whose Constitution is just a fun puzzle for judges and legislators to find novel ways of twisting and bypassing.

    1. The enumeration of limited powers in the US constitution only applies to the federal government.

      The state governments have plenary police power unless the state constitution follows a similar enumerated powers scheme. Most don’t.

      1. True that the Constitution only affects the federal government, but the founders and framers would be appalled at how massive state and local governments have become.

  2. Well, since “nor shall private property be taken for public use, without just compensation” has been re-interpreted as “for public benefit”, it’s not really your property anyways. You still have to pay the taxes, but you can only stay there until the government decides somebody else needs the land more than you do. It’s a “balancing act” between your right to keep your stuff and the government’s urge to steal your stuff. It’s like the First Amendment’s free speech clause that balances your right to speak your mind and the government’s desire to make you shut the hell up or the Fourth Amendment’s balancing your right to be free and the government’s desire to lock you in a cage. See? Give a little, take a little. You give, they take.

    1. Well, since “nor shall private property be taken for public use, without just compensation” has been re-interpreted as “for public benefit”, it’s not really your property anyways. You still have to pay the taxes, but you can only stay there until the government decides somebody else needs the land more than you do.
      Need’s got nothing to do with it. Just tell the government you are wealthier than the current occupant. If they evict, you will pay more taxes and spend more at local business. That benefits the public.

    2. It’s sad how too many of our rights have been turned into “balancing tests”, isn’t it?

      Free speech vs. “hate speech”
      Free press vs. “fake news”
      Right to own guns vs. “assault weapons”
      Right to be secure in one’s possessions vs. “OMG TERRORISTS IN THE CLOSET”

  3. >>The intention of the law was to combat the sky-high housing costs

    c’mon

  4. Umm…if you divide a parcel of land into two lots have you not created two potential homes where once there was one? They were expanding supply, after a fashion, which would mean they were following the intent of California’s retardation after all?

  5. I have had it with ever expanding activist government bullshit.

    Once upon a time, “people” griped about how kings and other unconstrained rulers could force new rules and taxes at will, and often on petty whims. Now “people” applaud when their democratically (or Democratically) elected officials do the same shit.

    Fuck every retard who seeks to impose positive rights in place of negative rights.

    1. Dude if you call it that you’ve already lost. There are no such thing as positive or negative rights. There are rights and there are not.

      Whenever a leftist talks about rights they are lying. The right to housing, the right to healthcare, etc. You have no right to other people’s labor and no right to other people’s property.

  6. Inclusionary zoning? Who could be against inclusion, unless you’re the love child of Hitler, Mr. Scrooge and the Grinch?

  7. Pay attention: this madness is spreading from California to the real world. Never vote for a democrat.

    1. Never vote for a democrat an authoritarian.

      there FIFY

      1. Never voting for a democrat covers that.

        1. You have to be very careful about which Republicans you vote for, too.

  8. If when the Cherks bought the property it was subdividable and with no permit fee, then this new fee has reduced the value of their property by $40,000 (or more) and constitutes a “taking” that should be compensable. I’m not sure a 6-3 or 7-2 court, should Trump get that lucky, will ever have the balls to rein in rapacious local governments and their zoning bullcrap.

    1. You sort of imagine a Republican appointed justice would rule against this bullshit. Bollocks. History shows otherwise.

  9. “The intention of the law was to combat the sky-high housing costs in Marin County, which is located just north of San Francisco.”

    Successful politicians are not stupid enough not to know that the effect will be to drive costs higher for everyone that doesn’t qualify for this subsidized housing, and turn more middle-class families into government dependents. And THAT is the true intent.

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