In the past, California courts have ruled that the high constitutional bar set by the Fifth Amendment doesn’t apply to inclusionary zoning programs like the one in East Palo Alto. Requiring private developers to toss in some added affordable housing isn’t an “exaction,” the courts have found, but a standard land-use restriction akin to any other zoning rule.

Whether a city decides it needs more schools, apartment buildings, businesses or, in the case of inclusionary zoning, affordable housing, it has broad power under the constitution to “decide, for the good of the general welfare, that we’re going to require this,” said Mike Rawson, director of litigation at the Public Interest Law Project.

The state Supreme Court ruled as such most recently in 2015. The U.S. Supreme Court declined to weigh in, a tacit approval.

“They can always change their mind,” said Rawson. “I don’t see a basis for it, though obviously that doesn’t necessarily stop them.”

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Read the full article by Ben Christopher in CalMatters here.

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