The Supreme Court of the United States may soon consider whether inclusionary zoning is in fact unconstitutional.
A pending petition by the developer of an 11-unit condominium project in the City of West Hollywood is asking whether a $540,393.28 “affordable housing fee” – which is being imposed as a mandatory approval condition – is “subject to scrutiny under the unconstitutional conditions doctrine” set out in previous cases.
The petition is supported by a collection of researchers and academics from Yale University, George Mason University, as well as many other institutions.
More specifically, the question asks whether a “mandated permit condition” satisfies the “essential nexus” and “rough proportionality” tests established by the following decisions: Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
To put it crudely, the nexus and proportionality tests essentially state that for an exaction to be constitutional, there needs to be a reasonable relationship between the ask and the adverse public impacts that can be directly attributable to the project in question.
Here is an excerpt from the petition:
Together, the nexus and proportionality tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate adverse public impacts caused by the proposed development.
In the case of 616 Croft Avenue, the argument is that this 11-unit condo project is not directly responsible for the lack of affordable housing in the city. In other words, the need for affordable housing exists independently of this project. So it fails the test.
Another excerpt:
Accordingly, the City provided no evidence of nexus and proportionality, admitting on the record that the in-lieu fee was not “intended to mitigate impacts caused by development.” Instead, the City explained that the fee was designed to meet “needs for affordable housing that exist independently of the Applicants’ residential development project.
The petition also gets into the fact that, irrespective of this test, inclusionary zoning has not necessarily been shown to have a meaningful impact on affordable housing supply. And it may actually increase housing prices because of a reduction in overall supply and because the cost burden typically gets shifted over to the market rate units. More reading here.
What do you think of this argument? It will be very interesting to see how this one plays out.
Empire State Building Gay Pride Rainbow by Ahmer Kalam on 500px
By now, I am sure that all of you know that the U.S. Supreme Court made a landmark ruling yesterday (Friday, June 25, 2015). In a 5-to-4 vote, it was decided that the U.S. Constitution guarantees the right to same-sex marriage.
Here is Justice Anthony Kennedy’s closing paragraph. What a great read.
The Supreme Court of the United States may soon consider whether inclusionary zoning is in fact unconstitutional.
A pending petition by the developer of an 11-unit condominium project in the City of West Hollywood is asking whether a $540,393.28 “affordable housing fee” – which is being imposed as a mandatory approval condition – is “subject to scrutiny under the unconstitutional conditions doctrine” set out in previous cases.
The petition is supported by a collection of researchers and academics from Yale University, George Mason University, as well as many other institutions.
More specifically, the question asks whether a “mandated permit condition” satisfies the “essential nexus” and “rough proportionality” tests established by the following decisions: Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
To put it crudely, the nexus and proportionality tests essentially state that for an exaction to be constitutional, there needs to be a reasonable relationship between the ask and the adverse public impacts that can be directly attributable to the project in question.
Here is an excerpt from the petition:
Together, the nexus and proportionality tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate adverse public impacts caused by the proposed development.
In the case of 616 Croft Avenue, the argument is that this 11-unit condo project is not directly responsible for the lack of affordable housing in the city. In other words, the need for affordable housing exists independently of this project. So it fails the test.
Another excerpt:
Accordingly, the City provided no evidence of nexus and proportionality, admitting on the record that the in-lieu fee was not “intended to mitigate impacts caused by development.” Instead, the City explained that the fee was designed to meet “needs for affordable housing that exist independently of the Applicants’ residential development project.
The petition also gets into the fact that, irrespective of this test, inclusionary zoning has not necessarily been shown to have a meaningful impact on affordable housing supply. And it may actually increase housing prices because of a reduction in overall supply and because the cost burden typically gets shifted over to the market rate units. More reading here.
What do you think of this argument? It will be very interesting to see how this one plays out.
Empire State Building Gay Pride Rainbow by Ahmer Kalam on 500px
By now, I am sure that all of you know that the U.S. Supreme Court made a landmark ruling yesterday (Friday, June 25, 2015). In a 5-to-4 vote, it was decided that the U.S. Constitution guarantees the right to same-sex marriage.
Here is Justice Anthony Kennedy’s closing paragraph. What a great read.
With this decision, the United States joins the Netherlands, Belgium, Spain, Canada, Norway, Sweden, and many other countries who already allow same-sex marriages nationwide. And I am delighted to see that happen with Canada’s neighbor.
I am also proud to say that it has already been a decade (2005) since Canada became the 4th country in the world – and the 1st country outside of Europe – to allow same-sex marriages. Not because it had a direct impact on my life, but because it is the right thing to do.
It is the right thing to do because it creates “equal dignity” among all men and women (as Justice Kennedy states above) and because it’s the right thing to do for our economies.
I believe that the strongest economies are the ones that can remain open and tolerant to new ideas and all kinds of people.
Cities like Toronto and New York (as I’ve argued before) became successful precisely because they opened themselves up to new ideas and new people (immigrants).
But many studies show that as people age, “openness” declines. We become less intellectually curious and our preference for variety wanes. Perhaps this is where the expression “set in your ways” comes from and why political orientation often correlates with age.
Thankfully the U.S. wasn’t so set in its ways that it couldn’t provide equal dignity to its citizens.
With this decision, the United States joins the Netherlands, Belgium, Spain, Canada, Norway, Sweden, and many other countries who already allow same-sex marriages nationwide. And I am delighted to see that happen with Canada’s neighbor.
I am also proud to say that it has already been a decade (2005) since Canada became the 4th country in the world – and the 1st country outside of Europe – to allow same-sex marriages. Not because it had a direct impact on my life, but because it is the right thing to do.
It is the right thing to do because it creates “equal dignity” among all men and women (as Justice Kennedy states above) and because it’s the right thing to do for our economies.
I believe that the strongest economies are the ones that can remain open and tolerant to new ideas and all kinds of people.
Cities like Toronto and New York (as I’ve argued before) became successful precisely because they opened themselves up to new ideas and new people (immigrants).
But many studies show that as people age, “openness” declines. We become less intellectually curious and our preference for variety wanes. Perhaps this is where the expression “set in your ways” comes from and why political orientation often correlates with age.
Thankfully the U.S. wasn’t so set in its ways that it couldn’t provide equal dignity to its citizens.
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