Supreme Court Denies Certiorari in Challenge to San Jose’s Inclusionary Housing Ordinance; Justice Thomas Suggests The Issue is Far From Settled
Sheppard Mullin Richter & Hampton LLP
On February 29, 2016, the Supreme Court of the United States denied the California Building Industry’s petition for writ of certiorari seeking review of the decision of the California Supreme Court in California Building Industry Assn. v. City of San Jose,(2015) 61 Cal. 4th 435. In his concurrence with the denial of certiorari, Justice Thomas stated that the Nollan/Dolan line of decisions would have governed the City’s actions had it imposed these conditions through administrative action, but that lower courts have long been divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. Justice Thomas went on to state that he “doubts that ‘the existence of a taking should turn on the type of governmental entity responsible for the taking,’” and that until the Supreme Court of the United States resolves this issue, there will be uncertainty as to which legal standard governs. Nevertheless, Justice Thomas concluded that the case at hand did not present an opportunity to resolve this conflict because (i) the City had raised threshold questions about the timeliness of the petition for certiorari that might preclude the takings clause question from being reached, (ii) CBIA had disclaimed any reliance on the Nollan/Dolan line of decisions in the prior proceedings, and (iii) the California Supreme Court’s decision did not rest on the distinction (if any) between takings effectuated through administrative versus legislative action.