Remember that decision by the California Court of Appeal which held that the City of San Jose's "inclusionary housing" exaction was subject only to low-level scrutiny and not the nexus-and-proportionality requirment?
Well, after Koontz, you should not be surprised that the decision has been taken to the next higher level and the California Building Industry Association has petitioned the California Supreme Court to review the case. The petition points out that the lower California courts have reached different conclusions when considering nearly identical ordinances (see here, for example):
Building Industry Association of Central California v. City of Patterson, 171 Cal. App. 4th 886, 898 (2009), holds that San Remo Hotel applies to inclusionary housing ordinances. The Opinion of the court below holds that San Remo Hotel does not apply to such ordinances. These two published decisions deal with materially identical inclusionary housing ordinances, and so cannot be distinguished on any principled ground. Trial courts and appellate courts will have no basis on which to decide whether the facts of a challenged inclusionary housing ordinance are more like those in City of Patterson or more like those in the Opinion, because the facts in these two cases are materially the same. As a consequence, future courts will have to choose which case to follow, and the result will be a patchwork of legal standards across the state.This Court should also grant review to settle the important legal question of the extent to which the United States Supreme Court’s recent decision in Koontz v. St. Johns River Water Management District, No. 11- 1447, 2013 WL 3184628 (U.S. June 25, 2013) (Koontz), governs the judicial review of in-lieu development fees in California. Koontz clarifies that all in-lieu fees are land use exactions, which calls into serious question the Opinion’s holding that in-lieu fees in inclusionary housing ordinances can be upheld as mere exercises of a city’s police power.
Petition at 2-3.
More details here from Pacific Legal Foundation.
Petition for Review, California Building Industry Ass'n v. City of San Jose, No. ___ (July 15, 2013)
