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Potential U.S. Supreme Court Case Could Result In Ban On Inclusionary Zoning

West face of the U.S. Supreme Court building in Washington, D.C.

The U.S. Supreme Court is considering whether to hear a case that could have massive implications for urban planning and affordable housing.

The case, Dartmond Cherk v. Marin County, rests on whether or not it is legal for an affluent California county just north of San Francisco to impose a $40K fee on the Cherk family, who want to split a 3-acre lot of vacant land it owns into two portions, CityLab reports.

Marin County law mandates such fees for zoning changes that don't set aside a portion of planned residential units for affordable housing.

The land deal at the heart of the case is likely too small to make a meaningful impact on the shortage of affordable housing in what is reportedly the most segregated county in California, but the court may be looking to use it as a way to ban inclusionary zoning altogether, CityLab reports. 

Inclusionary zoning is created when developers set aside a portion of residential units they develop for affordable housing, although local versions of it vary in terms of potential workarounds and what properties are subject to such restrictions. Some policies, like Marin County's, are mandatory, while others exist as optional incentive programs.

Civil rights groups counter that inclusionary zoning is one of the strongest weapons cities have in the fight for affordable housing, but the real estate industry has historically opposed any mandatory policies.

study by the Lincoln Institute of Land Policy found that 886 U.S. jurisdictions have inclusionary zoning policies, although 45% of those municipalities are in New Jersey. A further 27% are in Massachusetts and 17% are in California, representing the vast majority of such policies across the U.S.

Taken together, local inclusionary zoning policies have led to the creation of 174,000 affordable housing units nationwide, most of which are mandated to remain affordable for 30 years. So far, there have been $1.7B in fees that developers paid in lieu of building affordable units, the Lincoln Institute found. The majority of such policies have been enacted since the year 2000.

Even with mandatory policies in place, inclusionary zoning has not worked as intended in many cities. The state of New Jersey is in the process of obtaining court orders against many of the New Jersey towns that have failed to meet mandatory affordable housing requirements. 

California state law is settled on the legality of inclusionary zoning, but multiple attempts have been made in the past few years to appeal to the Supreme Court. Thus far, the court has declined to weigh in. The most recent challenge came in 2017, but the political makeup of the nine justices has since shifted to the right with the Trump-era appointments of Neil Gorsuch and Brett Kavanaugh.

The Pacific Legal Foundation, the property rights advocacy organization that financially supported the two most recent attempts to get the court to weigh in, is also advocating for the Cherk family, CityLab reports. One of the plaintiffs it previously backed was the California Building Industry Association.