This morning, the U.S. Supreme Court declined to hear what might have been a major property rights case, California Building Industry Ass’n v. City of San Jose, No. 15-330 (cert. petition filed Oct. 16, 2015).
In that case, the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test.
We filed an amici brief in the case in support of the petitioners.
While we believed there was a good change that SCOTUS was going to hear this case (it has been relisted at least a couple of times), we still get at least one takings case on the Court’s docket this term, the case on the “relevant parcel” in regulatory takings.
The issue presented in the CBIA case — are legislative exactions subject to Nollan and Dolan, and what exactly is an “exaction” — remains open, and one day the Court is going to have to address it.