Case challenging developer set-asides raises 'important and unsettled issue,' Thomas says
Justice Clarence Thomas said on Monday that he believes a challenge to a law requiring developers to set aside 15 percent of their units for low-income buyers raises “an important and unsettled issue under the takings clause.”
Thomas nonetheless concurred (PDF) in the Supreme Court’s decision to deny cert in the case, partly because of threshold questions that could prevent the court from reaching the takings issue.
Thomas said it is unsettled whether Supreme Court precedent governing restrictions on land use imposed through administrative actions also applies when the restrictions are imposed through legislation.
When governments use administrative action to condition permit approval on an owner’s agreement to give up his property, there must be a nexus and rough proportionality between the government demand and the effects of the proposed land use, Thomas said.
Courts have been divided on whether the same test applies when the alleged taking is pursuant to a law, Thomas said.
“Until we decide this issue,” he wrote, “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.”
The case is California Building Industry Association v. San Jose.
Hat tip to How Appealing.
