throbber
1
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 577 U. S. ____ (2016)
`
` THOMAS, J., concurring
`
`
`SUPREME COURT OF THE UNITED STATES
`
` CALIFORNIA BUILDING INDUSTRY ASSOCIATION v.
`
` CITY OF SAN JOSE, CALIFORNIA, ET AL.
`ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
`
`
`COURT OF CALIFORNIA
`
`No. 15–330. Decided February 29, 2016
`
`The petition for writ of certiorari is denied.
`JUSTICE THOMAS, concurring in the denial of certiorari.
`
`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
`
`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
`
`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).
`
`Our precedents in Nollan v. California Coastal Comm’n,
`
`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
`
`
`
`
`
`
`
`

`
`CALIFORNIA BUILDING INDUSTRY ASSN. v. SAN JOSE
`
` THOMAS, J., concurring
`
`
`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
`
`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
`
`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-
`
`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
`
`the measure bears “a reasonable relationship to the public
`welfare.” 61 Cal. 4th, at 456–459, and n. 11, 351 P. 3d, at
`
`987–990, n. 11; compare ibid. with, e.g., Home Builders
`
`Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio
`
`
`St. 3d 121, 128, 729 N. E. 2d 349, 356 (2000) (applying the
`Nollan/Dolan test to legislative exaction).
`
`
`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
`
`the conflict. The City raises threshold questions about the
`timeliness of the petition for certiorari that might preclude
`
`
`
`
`
`
`
`2
`
`
`
`

`
`
`
`3
`
`
`
` Cite as: 577 U. S. ____ (2016)
`
` THOMAS, J., concurring
`
`
` us from reaching the Takings Clause question. Moreover,
`
`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.

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.