The Supreme Court may soon test the constitutionality of the inclusionary zoning ordinance, a tool that local governments in tight housing markets such as those in California use to force developers to expand the supply of affordable housing.
Inclusionary zoning policies typically compel or encourage developers to earmark a percentage of housing units in new or rehabilitated projects for low- and moderate-income residents. Alternatively, developers can be made to contribute to a fund whose proceeds can be used to produce affordable housing.
The new case pertains to an elderly couple who have filed against officials in Marin County, California, whose policies make it difficult to develop real estate, as well as pitting property-rights advocates against social-justice activists.
Housing isn’t considered affordable in Marin County.
The case goes back to 2000 when Dartmond and Esther Cherk applied to Marin County for permission to divide a vacant 2.8-acre parcel of land into two single-family residential lots. Their intention was to sell one of the lots to finance their retirement.
In 2003, while the permitting process was still underway, the county amended the Marin County code. The amended regulations required the Cherks to “pay an in-lieu fee” to the county to support affordable housing. Eventually, after finding dividing the land “would result in a future increase in the availability of housing opportunities in an existing residential area,” the county approved the subdivision in December 2007 but conditioned approval on the Cherks paying a nearly $40,000 in-lieu fee, despite the positive expected impact on the local housing market.
After getting multiple extensions of time to pay the fee, in July 2015, the Cherks paid the fee under protest. But in February 2016, the Cherks had their attorney write a letter to the county demanding a refund of the fee, which lawyers call an exaction.
Such exactions turn into a form of extortion “unless the permit condition serves the same governmental purpose as the development ban,” the Supreme Court ruled in Nollan v. California Coastal Commission (1987).
The county didn’t respond to the Cherks’ demand for a refund, so in August 2016, they filed suit arguing the payment constituted an unconstitutional condition under the doctrine laid down by the Supreme Court.
According to Dunford, “governments can’t use a permit process to extort money from property owners by imposing conditions that have nothing to do with the proposed development. But governments such as Marin County keep trying.”
Thomas Silverstein of the Lawyers’ Committee for Civil Rights Under Law supports inclusionary zoning.