Inclusionary Zoning and the Supreme Court

The Supreme Court might decide on the constitutionality of inclusionary zoning. Local land use regulations and affordable housing policies in cities and communities all over the country hang in the balance.

October 10, 2019, 2:00 PM PDT

By James Brasuell @CasualBrasuell


U.S. Supreme Court

Kevin J. Frost / Shutterstock

Kriston Capps reports on the background and details of a court case expected to appear before the Supreme Court that amounts to whether inclusionary zoning is an unconstitutional government taking of private property.

The court case was born in Marin County, where two property owners, Dartmond and Esther Cherk, were forced to either include affordable housing or pay an in-lieu fee when trying to develop a residential parcel into two single-family-zoned lots.

Capps explains the stakes of a possible Supreme Court hearing for Dartmond Cherk, et al. v. Marin County, California.

The Marin County case may test the constitutionality of inclusionary zoning, a tool that local jurisdictions rely on to expand the supply of affordable housing, especially in tight housing markets. The court has expressed an interest in the case, which the justices may wind up using as a wedge to reshape property rights. It’s possible the inclusionary zoning ordinances—and local regulations more broadly construed—will not stand under the court’s scrutiny.

Capps explains the status of the case relative to the Supreme Court's interest in deciding the matter. "Housing advocates and industry associations are filing briefs on both sides of the case," according to Capps, and "the court asked Marin County for its response, which attorneys must file by October 7."

The Supreme Court's position on whether inclusionary zoning amounts to an unconstitutional taking could also have implications for land use regulations that have environmental outcomes in mind, according to Capps.

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