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` Cite as: 577 U. S. ____ (2016)
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` THOMAS, J., concurring
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`SUPREME COURT OF THE UNITED STATES
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` CALIFORNIA BUILDING INDUSTRY ASSOCIATION v.
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` CITY OF SAN JOSE, CALIFORNIA, ET AL.
`ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
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`COURT OF CALIFORNIA
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`No. 15–330. Decided February 29, 2016
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`The petition for writ of certiorari is denied.
`JUSTICE THOMAS, concurring in the denial of certiorari.
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`This case implicates an important and unsettled issue
`under the Takings Clause. The city of San Jose, Califor-
`nia, enacted a housing ordinance that compels all develop-
`ers of new residential development projects with 20 or
`more units to reserve a minimum of 15 percent of for-sale
`units for low-income buyers. See San Jose Municipal
`Ordinance No. 28689, §§5.08.250(A), 5.08.400(A)(a) (2010).
`Those units, moreover, must be sold to these buyers at an
`“affordable housing cost”—a below-market price that
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`cannot exceed 30 percent of these buyers’ median income.
`§§5.08.105, 5.08.400(A)(a); see Cal. Health & Safety Code
`Ann. §§50052.5(b)(1)–(4) (West 2014). The ordinance
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`requires these restrictions to remain in effect for 45 years.
`San Jose Municipal Ordinance No. 28689, §5.08.600(B);
`Cal. Health & Safety Code Ann. §33413(C). Petitioner, the
`California Building Industry Association, sued to enjoin
`the ordinance. A California state trial court enjoined the
`ordinance, but the Court of Appeal reversed, and the
`Supreme Court of California affirmed that decision. 61
`Cal. 4th 435, 351 P. 3d 974 (2015).
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`Our precedents in Nollan v. California Coastal Comm’n,
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`483 U. S. 825 (1987), and Dolan v. City of Tigard, 512
`U. S. 374 (1994), would have governed San Jose’s actions
`had it imposed those conditions through administrative
`action. In those cases, which both involved challenges to
`administrative conditions on land use, we recognized that
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`CALIFORNIA BUILDING INDUSTRY ASSN. v. SAN JOSE
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` THOMAS, J., concurring
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`governments “may not condition the approval of a land-
`use permit on the owner’s relinquishment of a portion of
`his property unless there is a ‘nexus’ and ‘rough propor-
`tionality’ between the government’s demand and the
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`effects of the proposed land use.” Koontz v. St. Johns
`River Water Management Dist., 570 U. S. ___, ___ (2013)
`(slip op., at 1) (describing Nollan/Dolan framework).
`For at least two decades, however, lower courts have
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`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. See
`Parking Assn. of Georgia, Inc. v. Atlanta, 515 U. S. 1116,
`1117 (1995) (THOMAS, J., dissenting from denial of certio-
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`rari). That division shows no signs of abating. The deci-
`sion below, for example, reiterated the California Supreme
`Court’s position that a legislative land-use measure is not
`a taking and survives a constitutional challenge so long as
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`the measure bears “a reasonable relationship to the public
`welfare.” 61 Cal. 4th, at 456–459, and n. 11, 351 P. 3d, at
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`987–990, n. 11; compare ibid. with, e.g., Home Builders
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`Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio
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`St. 3d 121, 128, 729 N. E. 2d 349, 356 (2000) (applying the
`Nollan/Dolan test to legislative exaction).
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`I continue to doubt that “the existence of a taking
`should turn on the type of governmental entity responsible
`for the taking.” Parking Assn. of Georgia, supra, at 1117–
`1118. Until we decide this issue, property owners and
`local governments are left uncertain about what legal
`standard governs legislative ordinances and whether cities
`can legislatively impose exactions that would not pass
`muster if done administratively. These factors present
`compelling reasons for resolving this conflict at the earli-
`est practicable opportunity.
`Yet this case does not present an opportunity to resolve
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`the conflict. The City raises threshold questions about the
`timeliness of the petition for certiorari that might preclude
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` Cite as: 577 U. S. ____ (2016)
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` THOMAS, J., concurring
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` us from reaching the Takings Clause question. Moreover,
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`petitioner disclaimed any reliance on Nollan and Dolan in
`the proceedings below. Nor did the California Supreme
`Court’s decision rest on the distinction (if any) between
`takings effectuated through administrative versus legisla-
`tive action. See 61 Cal. 4th, at 461–462, 351 P. 3d, at 991–
`992. Given these considerations, I concur in the Court’s
`denial of certiorari.