CALIFORNIA BUILDING INDUSTRY ASSOCIATION v. CITY OF SAN JOSE, CALIFORNIA, ET AL.
No. 15-330
SUPREME COURT OF THE UNITED STATES
February 29, 2016
577 U. S. ____ (2016)
THOMAS, J., concurring
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
THOMAS, J., concurring
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, California, enacted a housing ordinance that compels all developers 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
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 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 proportionality’ between the government‘s demand and the effects of the proposed land use.” Koontz v. St. Johns River Water Management Dist., 570 U. S. 595, ___ (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 certiorari). That division shows no signs of abating. The decision 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
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. 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.