US Supreme Court Declines Review of San Jose’s Inclusionary Housing Ordinance

News to Build On – Summer 2014
February 25, 2016
Palmer Fix Introduced
March 1, 2016
Thanks to our friends at SV@Home for providing much of the content for this post A

Yesterday, the U.S. Supreme Court (SCOTUS) announced that it will not hear the California Building Industry Association (CBIA) challenge to the City of San Jose’s inclusionary housing ordinance. As you’ll recall, this legal challenge to San Jose’s for-sale inclusionary zoning ordinance – an ordinance that required new for-sale residential developments of more than 20 homes to make 15% of the homes available for purchase by lower-income households or to pay in lieu fees or dedicate land for desperately needed affordable homes – has been going on for over five years.


In 2010, the CBIA filed a lawsuit in superior court challenging San Jose’s for-sale inclusionary zoning ordinance. After winning in the trial court, the CBIA then, in 2013, lost on appeal and petitioned the California Supreme Court to review the appellate court decision. NPH was an intervener and appellant in the case and our 2007 report, “Affordable by Choice: Trends in California Inclusionary Housing Programs” was cited on page 2 of the Court’s opinion.


Yesterday’s decision by SCOTUS not to hear the case paves the way for full implementation of San Jose’s for-sale inclusionary ordinance, which was originally scheduled to take effect on January 1, 2013. It also removes any concern that action by the High Court would impact the implementation of inclusionary ordinances and policies throughout the nation.


Read the full denial of the writ of certiorari by the US Supreme Court here.


This is fantastic news for efforts to avoid displacement and create diverse, inclusive mixed-income communities through inclusionary housing. We applaud the City of San Jose’s efforts in fighting for its ability to implement the ordinance through the Superior, Appellate, and California Supreme Courts. We also extend a huge and heartfelt thank you to our legal “dream team” of Mike Rawson of the The Public Interest Law Project, Melissa Morris of the Law Foundation of Silicon Valley and Corina Cacovean of Wilson Sonsini Goodrich & Rosati.


Read the California Supreme Court’s decision on CBIA v. City of San Jose from June 2015 here.


NPH applauds this opinion. For nearly forty years, inclusionary zoning policies have existed in California and more than 170 jurisdictions have adopted some form of an inclusionary ordinance. These important policies have produced approximately 30,000 new homes affordable to lower-income households. NPH has long been a proponent of inclusionary housing as a best practice and critical tool for local jurisdictions which have a compelling governmental interest to address the lack of affordable housing available to lower-income households as well as to comply with state and federal Fair Housing laws. Inclusionary programs are especially important tools to ensure that we maintain and create integrated and socio-economic and ethnically diverse communities.