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Justice Thomas Signals that the Supreme Court May Review Inclusionary Zoning



Just days after the Oregon Senate approved a bill that would allow inclusionary zoning—i.e. permitting local governments to condition the grant of incentives to developers on the inclusion of affordable housing in new developments—at least one United States Supreme Court Justice has sent a signal that the Court may wish to review such laws (as well as, potentially, other legislatively enacted land-use measures that could be characterized as governmental takings).

This week, the United States Supreme Court passed up a major dispute over inclusionary zoning, denying certiorari in California Building Industry Association v. San Jose, which, as SCOTUSblog's Lyle Denniston reports, "had been set for consideration by the Court at three private Conferences." There, plaintiff challenged a "housing ordinance that compels all developers of new development projects with 20 or more units to reserve a minimum of 15 percent of for-sale units for low-income buyers," which restrictions would remain in effect for 45 years.

Upon plaintiff's motion, the California trial court enjoined the ordinance. But a state Court of Appeals panel reversed the trial court, upholding the inclusionary zoning ordinance, and the California Supreme Court affirmed the appellate court's decision. On Monday, February 29, the United States Supreme Court denied review of the California Supreme Court decision.

U.S. Supreme Court Justice Clarence Thomas issued a brief opinion concurring in the denial of review of the case on procedural grounds. But Justice Thomas reasoned that there are "compelling reasons" for resolving a conflict over the permissibility of legislatively enacted inclusionary zoning laws "at the earliest practicable opportunity." In particular, Justice Thomas questioned if the permissibility of a land-use requirement that could be characterized as a governmental taking should turn on whether the requirement was legislative or administrative. As SCOTUSblog's Denniston explained, while the Court was passing up this major dispute over property rights, "lawyers were urged to bring up those issues again in future cases—cases without procedural flaws."

While Justice Thomas's concurrence is not an indication that there is support on the high court to invalidate inclusionary zoning laws (or other potential takings that were legislatively enacted) around the country—including the legislation under consideration in Oregon—it is indication that at least one Justice is interested in plumbing the depths of the constitutionality and bounds of such development restrictions, and that test cases may be brought to do so in the near future.

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