After Supreme Court Denial, What's Next For NIMBYs And Inclusionary Zoning?

Property rights activists, multifamily developers and others who may have hung their anti-inclusionary zoning hopes on Marin County must now look elsewhere, after the U.S. Supreme Court declined to hear a long-percolating lawsuit challenging housing policy.

But those hopes are far from dashed. 

For the third time in four years, the Supreme Court has declined to hear a case challenging the legality of inclusionary zoning, or ordinances requiring affordable housing development (or in-lieu fees) from developers building market-rate units.

Denied last month, the case, Dartmond Cherk v. Marin County, specifically challenged the legality of the North Bay Area enclave's own version of the controversial policy. Over the summer, plaintiffs had petitioned the Supreme Court to decide whether Marin County could charge a $40K fee on local landowners looking to split a 3-acre lot in two. The court declined to hear the case on Dec. 9.

For now, previous rulings by the California Supreme Court and California Courts of Appeal affirming the legality of inclusionary zoning stand.

That could change, according to Pacific Legal Foundation Director of Litigation Larry Salzman, whose libertarian legal organization represented the plaintiffs of the Marin and other cases.

"It's disappointing, but I'm not discouraged," Salzman said. "The odds of any case making it to the [U.S. Supreme Court] are very small."

Though determining why certain cases do or don't get heard is like "reading tea leaves," according to Salzman, several Supreme Court justices in past challenges have expressed the need for questions of the legality of inclusionary zoning to be settled.

In the high court's denial of California Building Industry Association v. City of San Jose, for instance, Justice Clarence Thomas wrote that the question "shows no signs of abating" and that there were "compelling reasons for resolving this conflict at the earliest practicable opportunity."

Salzman, moreover, sees conference on the Marin case being rescheduled by the justices three times as a potential source of cautious optimism for critics of inclusionary zoning.

"That means at least one justice told the clerk to put the conference off each time," Salzman said. 

On top of signs that the currently right-leaning bench is receptive to hearing challenges to inclusionary zoning, several other factors could threaten the policy.

Jenkins & Hogin attorney Gregg Kettles, who represented West Hollywood in a lawsuit (616 Croft Ave., LLC v. City of West Hollywood, California) against its version of the affordable housing policy, says the federal court's decision last year on Rose Mary Knick vs. Township of Scott, Pennsylvania, might offer plaintiffs a new avenue. 

Arguments against inclusionary zoning often say it is an unconstitutional exaction, citing the takings clause of the Fifth Amendment. Now, such "regulatory takings" cases, which used to have to start in state court, have the potential to go straight to federal court, Kettles said.

"For types of cases like the San Jose case, the 616 Croft case and the Cherk case, I could see plaintiffs saying, 'Let's file in federal court now,'" he said. "And maybe the federal courts will look at these issues a little bit differently than the California Supreme Court and California Courts of Appeal have."

Nonetheless, some experts who acknowledge the possibility that inclusionary zoning gets ruled against, like Kettles, also still see the policy as constitutional, effective or both.

To Kettles, arguments for inclusionary zoning being an unconstitutional exaction, which rest on the policy's requirements being either too harsh or unrelated to market-rate development, miss the point.   

"Inclusionary zoning is not about mitigating the impacts of any particular project, he said. "It's about cities trying to address a shortage of affordable housing generally. It's about cities saying, 'We need more affordable housing, and we need to find a way to provide it. If the developers aren't going to provide it, they should give us some money so we can.'"

Contrary to the recent batch of challenges to inclusionary zoning and remaining questions about its efficacy, neither Kettles nor Sarah Karlinsky, a senior adviser at SPUR, a Bay Area-based urban public policy think tank, see its use diminishing, especially in California. Kettles thinks municipalities will increasingly employ it to meet state requirements on affordable housing production.

Karlinsky, who says it is SPUR's position that inclusionary is a useful tool if done right, sees political will for it remaining. In some cases, like San Francisco, it has been criticized for going too far and negatively affecting housing production of all types. 

With about 900 U.S. jurisdictions already using a variant of the policy (according to a 2017 study by the Lincoln Institute of Land Policy), inclusionary zoning's political popularity and continued proliferation might only stoke more challenges to it.

"As more jurisdictions have used inclusionary, there have been more challenges," Karlinsky said.

In the meantime, Salzman, a critic of the policy's effectiveness and constitutionality, thinks one of those challenges just might reach the high court. 

"I think there's a pretty good shot in the next five years," Salzman said. "And if it actually made it to the Supreme Court, I'm very optimistic that there would be significant restrictions if not overturning of inclusionary housing mandates."