California Building Industry Ass'n v. City of San Jose

Concurring. — I concur fully in the majority opinion, which I have signed. I write separately to speak to the current status and meaning of the “reasonable relationship” constitutional standard set out in San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643 [ 117 Cal.Rptr.2d 269 , 41 P.3d 87 ] (San Remo Hotel), a decision I authored for the court.

As explained in the majority opinion (maj. opn., ante, at pp. 470-471), in San Remo Hotel we addressed the constitutional standard for reviewing legislatively prescribed, formulaic mitigation fees. We first determined such fees were not subject to the heightened means-ends scrutiny established under the takings clause in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [ 97 L.Ed.2d 677 , 107 S.Ct. 3141 ] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [ 129 L.Ed.2d 304 , 114 S.Ct. 2309 ] (Dolan) for ad hoc, discretionary exactions. (San Remo Hotel, supra, 27 Cal.4th at pp. 665-671.) In reaching this conclusion, we rejected the plaintiffs’ contention that a lack of heightened scrutiny would mean legislatively imposed development mitigation fees would not be subject to meaningful means-ends review,…

Concurring. — I agree that the inclusionary housing ordinance at issue here is not an exaction of property for takings purposes and thus is not subject to the test this court established in San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643 [ 117 Cal.Rptr.2d 269 , 41 P.3d 87 ]. *487 Instead, “the ordinance falls within . . . municipalities’ general broad discretion to regulate the use of real property to serve the legitimate interests of the general public and the community at large.” (Maj. opn., ante, at p. 461.) But my reasons for upholding the ordinance are narrow.

The ordinance requires the developer to provide a certain number of units that are more affordable, i.e., less expensive, than the unrestricted units presumably will be. This requirement might cause the developer to make a smaller profit on these affordable units than on other units, but so do many valid zoning requirements. What the ordinance does not do, at least on a facial challenge, is require the developer to provide subsidized housing.

The ordinance does not prohibit the developer from building the affordable units in a less expensive way than the other units. It does restrict the ways…

Filed 6/15/

IN THE SUPREME COURT OF CALIFORNIA

CALIFORNIA BUILDING INDUSTRY )

ASSOCIATION, )

) Plaintiff and Respondent, ) ) S212072 v. ) ) Ct.App. 6 H038563

CITY OF SAN JOSE, )

) Santa Clara County Defendant and Appellant; ) Super. Ct. No. CV167289 )

AFFORDABLE HOUSING NETWORK )

OF SANTA CLARA COUNTY et al., ) ) Interveners and Appellants. ) _________________________________________)

Health and Safety Code section 50003, subdivision (a), currently provides: ―The Legislature finds and declares that . . . there exists within the urban and rural areas of the state a serious shortage of decent, safe, and sanitary housing which persons and families of low or moderate income . . . can afford. This situation creates an absolute present and future shortage of supply in relation to demand . . . and also creates inflation in the cost of housing, by reason of its scarcity, which tends to decrease the relative affordability of the state‘s housing supply for all its residents.‖…

Health and Safety Code section 50003, subdivision (a), currently provides: “The Legislature finds and declares that . . . there exists within the urban and rural areas of the state a serious shortage of decent, safe, and sanitary housing which persons and families of low or moderate income . . . can afford. This situation creates an absolute present and future shortage of supply in relation to demand . . . and also creates inflation in the cost of housing, by reason of its scarcity, which tends to decrease the relative affordability of the state’s housing supply for all its residents.”

This statutory language was first enacted by the Legislature over 35 years ago, in the late 1970s. (Stats. 1975, 1st Ex. Sess., ch. 1, § 7, pp. 3859-3861, adding Health & Saf. Code, former § 41003; Stats. 1979, ch. 97, § 2, p. 225, amending Health & Saf. Code, § 50003.) It will come as no surprise to anyone familiar with California’s current housing market that the significant problems arising from a scarcity of affordable housing have not been solved over the past three decades. Rather, these problems have become more severe and have reached what might be described as epic proportions in…