In two opinions written by Chief Justice Tani Cantil-Sakauye, the Supreme Court today hands victories to affordable housing advocates and to a criminal defendant.
The long opinion in California Building Industry Association v. City of San Jose applies a generally deferential standard of judicial review to so-called inclusionary zoning ordinances, in this case a San Jose enactment requiring all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price affordable to low or moderate income households. Recognizing that “significant problems arising from a scarcity of affordable housing . . . have reached what might be described as epic proportions in many of the state’s localities,” the court rejects the California Building Industry Association’s argument that, under the takings clause of the federal and state constitutions, San Jose should be required to show that the city’s affordable housing problem was caused by or attributable to the proposed new developments subject to the ordinance’s requirements. The court concluded that, unlike imposing an in lieu monetary fee, the San Jose price controls do “not constitute an exaction for purposes of the takings clause so as to bring into play the unconstitutional conditions doctrine,” even though developers could avoid the price controls by paying an in lieu fee. The court affirms the Sixth District Court of Appeal and disapproves a 2009 Fifth District Court of Appeal opinion.
There are two concurring opinions, one by Justice Kathryn Werdegar, who signed the majority opinion, and one by Justice Ming Chin, who did not. Justice Chin stresses that he agrees with the majority bottom line because the San Jose ordinance does not require the developer to provide subsidized housing, such as mandating the sale of some units below cost.
In People v. Le, a 6-1 court holds that a court cannot impose both a firearm enhancement and a gang enhancement when both enhancements depend on the defendant’s firearm use. Justice Chin dissents, claiming that the majority opinion “overrides [a] clear legislative mandate and prohibits imposition of the enhanced penalty for committing a serious felony to benefit a criminal street gang.” The court affirms the Fourth District, Division One, Court of Appeal.