In 616 Croft Ave., LLC v. City of West Hollywood, (2016) 3 Cal.App.5th 621, the court of appeal held that the City’s in-lieu affordable housing fee was not subject to the reasonable relationship test under the Nollan/Dolan line of cases. The subject project, an 11-unit condominium development on two combined lots, was approved in 2005, but because of the economic downturn the developer did not request building permits until 2011. During that time, the City’s in-lieu housing fee under its 2011 fee schedule had increased to $540,000.00. The developer paid under protest, and then sued the City for a refund in 2012, arguing that the fee was an illegal “exaction”.
While that case was making its way through the courts, in 2015, the California Supreme Court held that an affordable housing provision requiring that a certain number of new housing units be set aside as “affordable” units was not an “exaction” that invoked the United States Constitution’s Fifth Amendment due process takings protections, but rather, such a restriction “is an example of a municipality’s permissible regulation of the use of land under its broad police power.” (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435.) Thus, in the 616 Croft Avenue case, the court of appeal followed the City of San Jose case and held that the same reasoning applied even though the issue in this case was the payment of an in-lieu fee as an alternative to setting aside affordable units, and thus, the fee was not required to satisfy several reasonable relationship requirements.
©2016 Miles J. Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.
Latest posts by Miles Dolinger (see all)
- NEW CEQA CASE: “Flexible” Traffic Standards Under General Plan Do Not Establish Level Of Significance Criteria For Purposes of Environmental Analysis. - February 13, 2017
- NEW CEQA CASE: Court Upholds Environmental Review For New Golden State Warriors Arena Complex In S.F. - February 6, 2017
- NEW CEQA CASE: NO NEW ENVIRONMENTAL ANALYSIS REQUIRED FOR NEW STREETCAR LOOP. - February 6, 2017