Inclusionary Zoning for Affordable Housing Under Attack

By Kevin D. Siegel and Matthew D. Visick^*

I. INTRODUCTION

For 100-plus years, cities and counties have used zoning ordinances to establish permitted and prohibited uses of real property. The courts have recognized that these policy decisions are best made by local elected officials who know their communities and are responsive and responsible to their constituents. Thus, the courts have afforded great deference to these legislative decisions of city councils and boards of supervisors.

In California Building Industry Association v. City of San Jose (No. S212072) ("CBIA v. San Jose"), the California Supreme Court is threatening to chip-away at this longstanding deference. CBIA v. San Jose concerns a facial challenge to an inclusionary zoning ordinance that requires residential developers either to set aside a certain number of units for affordable housing or to pay an in-lieu fee to fund affordable housing programs. The San Jose City Council adopted the ordinance based on findings, which are consistent with many agencies’ inclusionary zoning ordinances, that market-rate residential development (1) uses-up the limited supply of available land that otherwise might be used for affordable housing, and (2) exacerbates the affordable housing shortage (and attendant service and civic problems) by creating an influx of new low-income workers needed to provide services for the new market-rate houses. The Sixth District Court of Appeal held that such inclusionary zoning legislation is a presumptively valid exercise of a city’s land use authority, and that the challenger thus bears a high burden to prove that the ordinance is an invalid exercise of police power.¹ The Supreme Court granted a writ of certiorari to determine the proper standard of review.