December 11, 2013

PLF files opening brief against housing exactions in California Supreme Court

By Anthony L. Francois Senior Attorney

In July of this year, PLF petitioned the California Supreme Court to review a lower court opinion allowing the City of San Jose to essentially takeover 15% of all new homes as units for the city’s affordable housing program.  In September, the Court granted review, and yesterday PLF filed the opening brief on behalf of the California Building Industry Association.

The brief argues that before a city can take those homes, it must demonstrate that new home building actually causes a loss of affordable housing.  The city cannot make this demonstration, as the trial court in this case already found.  The city faces significant financial challenges and several competing needs for its available tax base.  So, it is trying to transfer the cost of affordable housing from the public generally to specific property owners, by leveraging those property owners’ need for permits from the city.  Ironically, the reason the property owners need permits is in order to build new homes to address San Jose’s chronic housing shortage.

The Fifth Amendment to the Constitution of the United States forbids such takings of private property without just compensation, precisely to “bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”  You can also learn more about the case from our podcast, entitled “Clueless Zoning.”

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