Commercial Builders of Northern California, and Its Affected Members v. City of Sacramento, Council of the City of Sacramento

INTRODUCTION

Commercial Builders appeals the district court’s grant of summary judgment in favor of the City of Sacramento in Commercial Builders’ suit challenging a city ordinance to help expand available low-income *873 housing. The Ordinance in question conditions certain types of nonresidential building permits upon the payment of a fee intended to offset the burdens on the city caused by low-income workers who move there to fill jobs created by the project in question. Appellants are a group of commercial developers who filed suit contending the ordinance constitutes a taking under the fifth and fourteenth amendments.

The district court granted summary judgment in favor of the city, holding that the Ordinance did not effect an unconstitutional taking. It specifically found that the Ordinance substantially advanced a legitimate interest and that the city had adequately supported its contribution requirement by showing a sufficient nexus between nonresidential development and the demand for low-income housing. The court therefore concluded that the ordinance was not infirm under Nollan v. California Coastal Comm’n, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), which…

dissenting:

I respectfully dissent.

As Justice Scalia warned in Nollan, a state can leverage its police power to the point where a regulation of land use becomes an “out-and-out plan of extortion.” Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 , 107 S.Ct. 3141, 3149 , 97 L.Ed.2d 677 (1987). Sacramento’s ordinance is a transparent attempt to force commercial developers to underwrite social policy. Apparently, legislators find it politically more palatable to exact payments from developers than to tax their constituents. The Takings Clause prohibits singling out developers to bear this burden.

Historically, courts have upheld exac-tions when states were able to justify them as serving a public purpose related to the burdens caused by development. 1 For example, courts have sustained requirements *877 that developers construct various on-site improvements, such as sewers, water-mains, sidewalks, curbs and gutters, storm drains, and landscaping. Requiring off-site improvements that serve a public purpose, such as roads, schools, parks and sewage treatment plants, may also be justified where the requirement alleviates a public burden or ameliorates harmful effects caused by…

941 F.2d 872 COMMERCIAL BUILDERS OF NORTHERN CALIFORNIA, and its affected members, Plaintiffs-Appellants, v. CITY OF SACRAMENTO, Council of the City of Sacramento, Defendants-Appellees. No. 89-16398. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 1991. Decided Aug. 7, 1991. Edward J. Connor, Jr. and John M. Groen, Pacific Legal Foundation, Sacramento, Cal., for plaintiffs-appellants. Alletta D'A. Belin, Marc B. Mihaly and W. Robert Ward, Jr., Shute, Mihaly & Weinberger, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before SCHROEDER, BEEZER and NOONAN, Circuit Judges. SCHROEDER, Circuit Judge: INTRODUCTION 1 Commercial Builders appeals the district court's grant of summary judgment in favor of the City of Sacramento in Commercial Builders' suit challenging a city ordinance to help expand available low-income housing. The Ordinance in question conditions certain types of nonresidential building permits upon the payment of a fee intended to offset the burdens on the city caused by low-income workers who move there to fill jobs created by the project in question.…