Monday, February 29, 2016
Stephen Miller and I have previously blogged about California Building Industry Ass'n v. City of San Jose, a case in which the California Supreme Court upheld the constitutionality of the City of San Jose's inclusionary zoning ordinance. The California Building Industry Association had filed a petition for cert with the U.S. Supreme Court. Today, that petition was denied. However, Justice Clarence Thomas warned that the court may yet take up the issue of the constitutionality of such ordinances.
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 earliest 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 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 legislative action. Given these considerations, I concur in the court's denial of certiorari.
In other news, today Justice Thomas asked his first question from the bench in over a decade. Given Justice Scalia's passing, perhaps Thomas feels it is time for him to take a more visible role on the court.
Jamie Baker Roskie