Court of Appeals Upholds Constitutionality of Inclusionary Zoning—Affordable Housing Groups & San Jose Successfully Defend the City’s Ordinance

June 6, 2013–In California Building Industry Association v. City of San Jose the Court of Appeal upheld San Jose’s recently adopted inclusionary zoning ordinance against a constitutional attack by the CBIA.  The court held that inclusionary zoning ordinances are valid so long as they are “reasonably related” to a legitimate public purpose, which the court found includes addressing a community’s existing need for affordable housing.

PILP, the Law Foundation of Silicon Valley and Wilson Sonsini Goodrich & Rosati represented intervenors Affordable Housing Network of Santa Clara County, Housing California, California Coalition for Rural Housing, Non-Profit Housing Association of Northern California, Southern California Association of Non-Profit Housing, and San Diego Housing Federation in the successful defense of the City’s ordinance against the CBIA’s attack.

The CBIA had argued that an inclusionary zoning ordinance was invalid unless it was justified by the need for affordable housing created by new market rate development.

The case puts to rest this theory which had been used as the basis of a spate of recent litigation attacking local inclusionary housing ordinances.  [As of this writing, CBIA has petitioned the California Supreme Court for review, so there is a slight possibility the issue will go up to another court.]

San Jose’s ordinance requires that 15 percent of all units in new residential housing be affordable to lower and moderate income residents.  The City joins over 170 local jurisdictions in California that have some form of inclusionary housing policy.  These laws are adopted in response to the critical unmet need for housing affordable to lower and moderate income households that continues to plague many Californian communities trying to meet the housing needs of their workforce and dismantle historic patterns of segregation.

For more information contact Michael Rawson.  The Court of Appeal’s opinion is available here.

California Building Industry Association v. City of San Jose, 216 Cal. App. 4th 1373 (2013)

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