Issues and Cases

Feature ImageConstitutional rights are capped by city’s “inclusionary” cap on home prices

California Building Industry Association v. City of San Jose

Contact: Anthony L. Francois

Status: The California Supreme Court granted the petition for review on September 11, 2013. Briefing on the merits was completed Feb. 20, 2014. Oral argument was held on April 8, 2015. Decision issued June 15, 2015. The U.S. Supreme Court denied the petition for writ of certiorari on February 29, 2016.

PLF PodcastSummary

The City of San Jose’s inclusionary zoning ordinance, applying to residential developments of at least 20 homes, requires that 15 percent of the homes be sold at below-market prices determined by the City to buyers with qualifying income levels, or the payment of a $122,000 in-lieu fee.

The California Court of Appeal, Sixth District, held in this case that San Jose’s inclusionary zoning ordinance is an exercise of it police power, and not a development exaction subject to heightened scrutiny.

On appeal to the California Supreme Court, PLF argues that inclusionary zoning mandates are exactions, subjected to heightened scrutiny under the Fifth Amendment’s prohibition on uncompensated takings, and that under that standard the City’s ordinance is facially unconstitutional.


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