February 29, 2016 was a notable leap year day for the United States Supreme Court. To the surprise of most in the courtroom that day, Justice Clarence Thomas asked his first question from the bench in more than 10 years. The Court also issued its first round of orders since the February 13 death of Justice Antonin Scalia, including a denial of certiorari in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).
As we wrote last year, the case was a unanimous California Supreme Court decision that rejected a challenge to San Jose’s affordable housing ordinance on the grounds that it was an exaction and thus should have been subject to heightened scrutiny under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). The California court concluded that San Jose’s affordable housing ordinance is not an exaction because it does not require a developer to give up a property interest for which the government would have been required to pay just compensation outside the permit process. The court considered the ordinance instead to be a typical zoning restriction subject to rational basis review and not to the heightened scrutiny that applies to exactions.
Many observers anticipated that the California Building Industry Association would file a petition for writ of certiorari asking the U.S. Supreme Court to review the decision. On Sept. 15, 2015, CBIA did just that. CBIA described the issue as follows:
“A San Jose, California, ordinance conditions housing development permits upon a requirement that developers sell 15% of their newly-built homes for less than market value to city-designated buyers. Alternatively, developers may pay the city a fee in lieu. The California Supreme Court held that, even where such legislatively-mandated conditions are unrelated to the developments on which they are imposed, they are subject only to rational basis review . . .The question presented is: Whether such a permit condition, imposed legislatively, is subject to scrutiny and is invalid under the unconstitutional conditions doctrine as set out in Koontz; Dolan; and Nollan.” (Citations omitted)
The Court scheduled the case for consideration three times in January, prior to Justice Scalia’s death, but it was rescheduled each time. Such rescheduling is uncommon, and it suggests the Court was keenly interested in...
