United States: California Cities Can Require Developers To Build And Sell Affordable Housing In Their Projects

Local governments may enact laws that require all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households, the California Supeme Court has held.

The case marks a defeat for the California Building Industry Association ("CBIA"), who sought to invalidate San Jose's inclusionary housing ordinance on the basis that the law was an unconstitutional condition in the form of a development exaction under the takings clauses of the United States and California constitutions. An "inclusionary housing ordinance" is a law that requires a developer to construct and offer affordable housing as a part of its proposed development project. The case is California Building Industry Ass'n v. City of San Jose, decided June 15, 2015.

The decision is significant for cities and counties as they grapple with the limited amount of affordable housing in the state. Many cities and counties are now expected to follow San Jose's example and adopt laws imposing affordable housing requirements on for-sale development in their jurisdictions. The imposition of affordable housing requirements on new for-rent housing is limited by the Costa-Hawkins Rental Housing Act, a 1995 state law.

For developers, the decision is another example of the tough legislative requirements imposed on new developments in California.  Developers of large scale projects have often had to deal with cities and counties demanding that in return for long term vested rights to build their projects, the developer is required to provide a percentage of affordable housing in the overal project. Now, not only can cities and counties bargain for a required percentage of affordable housing in development agreements, they can mandate it as law on projects as small as 20 units (and perhaps fewer!). Developers in cities and counties that adopt such laws will now need to include in their pro formas the cost of building, offering and selling affordable units to low income and moderate income families. Those financial impacts not only include lower returns on construction and development costs, but the added expense of implementing an affordable housing program as part of the project (unless the local government provides those services).  The inclusionary requirements will certainly reduce developer profit, but may also affect the financial viability of the project as a whole.

Chief Justice Cantil-Sakauye wrote for the Court that the conditions that the San Jose ordinance imposed upon future developments did not impose "exactions" upon the developer's property so as to bring into play the unconstitutional conditions doctrine under the takings clauses of the federal or state constitutions. The conditions do not require the developer to pay money but place a limit on the way a developer may use its property, the court said. The ordinance serves legitimate government purposes of increasing the number of affordable housing units in the city and assuring that new affordable units are distributed throughout the city as part of a mixed-income development. Therefore, the court reasoned, the affordable housing ordinance is a zoning restriction, not a taking. The higher standard of court review applied to takings cases did not apply. Instead, the court could apply the much lower judicial review standard for zoning laws: such laws will be upheld so long as they have a reasonable relationship to a legitimate governmental interest.

CBIA's lawsuit was a "facial" challenge to the City of San Jose's ordinance, which argues that the ordinance was unlawful for essentially all reasonably conceivable projects. Another path to challenge the City of San Jose's ordinance is still available. It is still possible for a developer to make the argument that the law, "as applied" to its particular project, is a taking. Under compelling facts, the California Supreme Court could find that "as applied" the law was confiscatory or an "unconstitutional condition" to the development of the project. However, such a lawsuit would be a risky endeavor given the Court's prior holding.

In addition, CBIA could appeal the decision to the United States Supreme Court to review the California Supreme Court's interpretation of federal takings law.  Strategically, it would probably be best for the CBIA to wait for a project with compelling facts in an "as-applied" challenge rather than using the facial attack. It could well be the case that the chances of prevailing would be higher in an "as-applied" challenge.  The risks of losing the case in another "facial" challenge and establishing national legal precedent similar the California Supreme Court's holding would definitely not be welcomed by the development community.

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