
Donald M. Pepe
Partner
732-568-8370 dpepe@sh-law.comFirm Insights
Author: Donald M. Pepe
Date: January 7, 2020
Partner
732-568-8370 dpepe@sh-law.comThe U.S. Supreme Court is poised to address the constitutionality of an increasingly popular affordable housing tool — inclusionary zoning. The justices have been asked to consider Cherk v. Marin County, which involves whether Marin County violated the unconstitutional-conditions doctrine by requiring property owners to pay a $39,960 “affordable housing” fee as a condition of receiving a permit to change the use of their land.
As discussed in prior articles, inclusionary zoning is an affordable housing tool that ties the creation of affordable housing to the creation of market-rate housing, with the goal of encouraging new residential developments to make a certain percentage of the housing units affordable to low or moderate-income residents. Many inclusionary zoning programs include measures to encourage development, such as density bonuses that allow the developer to build more units than allowable under conventional zoning, or streamlined permitting that allows developers to build more quickly. Under some ordinances, developers can select one of several alternatives, such as payment of an in-lieu fee or constructing affordable off-site units in another project.
Marin County applied its inclusionary housing ordinance to require Dartmond Cherk and the Cherk Family Trust (the Cherks) to pay a $39,960 “affordable housing” fee as a condition of receiving a permit to split their undeveloped residential lot in two. It was undisputed that the Cherks’ lot-split neither caused nor had an adverse impact on the county’s affordable housing shortage. Rather, it increased the land available for affordable housing purposes.
The Cherks filed suit, contending that the fee is invalid under the “unconstitutional conditions doctrine,” established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (Nollan) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (Dolan). Under the doctrine, the government can’t condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.
Supreme Court precedent has established “a ‘special application’ of this doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits.” Koontz v, 570 U.S. 595 (2013). As set forth in Nollan and Dolan, conditions imposing monetary exactions or dedications of property must bear an “essential nexus” and “rough proportionality” to adverse public impacts of the proposed development.
In Koontz, the Court extended the Nollan/Dolan test to apply to government demands for money as a condition for a land-use permit, holding that they too must satisfy the nexus and rough proportionality requirements. However, the Court agreed that “so long as a permitting authority offers the landowner at least one alternative [to the money condition] that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.”
The California Court of Appeals relied on the Supreme Court’s decision in Koontz in siding with the County. It held that the unconstitutional conditions doctrine is inapplicable because the Cherks could have avoided the fee by satisfying the inclusionary housing program in an alternative way. The court further held that the tests set out in Nollan, Dolan, and Koontz do not apply because the County’s demands were not intended by the County to mitigate any adverse public impacts of the Cherks’ lot-split, but rather “‘to advance purposes beyond mitigating the impacts . . . attributable to [their] particular development.’” In addition, the court concluded that that “‘legislatively prescribed monetary fees’—as distinguished from ad hoc monetary demands by an administrative agency—‘that are imposed as a condition of development are not subject to the Nollan/Dolan test.’”
In their petition for certiorari, the plaintiffs asked the Supreme Court to answer the following questions:
There is no guarantee that the Supreme Court will agree to consider the case. However, the justices have shown that they are willing to wade into contentious property disputes, including those that involve controversial zoning regulations.
If the Supreme Court does grant certiorari in Cherk v. Marin County, its decision could have widespread consequences. As of 2016, 886 jurisdictions in 25 states and the District of Columbia have inclusionary housing programs. The high-profile case has already generated several amicus briefs, including those filed by the National Association of Homebuilders and the California Association of Realtors.
The attorneys of the Scarinci Hollenbeck Land Use Law Group will continue to monitor the case. You can also find additional Supreme Court coverage on the Constitutional Law Reporter.
If you have any questions or if you would like to discuss the matter further, please contact me, Don Pepe, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Your home is likely your greatest asset, which is why it is so important to adequately protect it. Homeowners insurance protects you from the financial costs of unforeseen losses, such as theft, fire, and natural disasters, by helping you rebuild and replace possessions that were lost While the definition of “adequate” coverage depends upon a […]
Author: Jesse M. Dimitro
Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and […]
Author: Jesse M. Dimitro
Business Transactional Attorney Zemel to Spearhead Strategic Initiatives for Continued Growth and Innovation Little Falls, NJ – February 21, 2025 – Scarinci & Hollenbeck, LLC is pleased to announce that Partner Fred D. Zemel has been named Chair of the firm’s Strategic Planning Committee. In this role, Mr. Zemel will lead the committee in identifying, […]
Author: Scarinci Hollenbeck, LLC
Big changes sometimes occur during the life cycle of a contract. Cancelling a contract outright can be bad for your reputation and your bottom line. Businesses need to know how to best address a change in circumstances, while also protecting their legal rights. One option is to transfer the “benefits and the burdens” of a […]
Author: Dan Brecher
What is a trade secret and why you you protect them? Technology has made trade secret theft even easier and more prevalent. In fact, businesses lose billions of dollars every year due to trade secret theft committed by employees, competitors, and even foreign governments. But what is a trade secret? And how do you protect […]
Author: Ronald S. Bienstock
If you are considering the purchase of a property, you may wonder — what is title insurance, do I need it, and why do I need it? Even seasoned property owners may question if the added expense and extra paperwork is really necessary, especially considering that people and entities insured by title insurance make fewer […]
Author: Patrick T. Conlon
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
The U.S. Supreme Court is poised to address the constitutionality of an increasingly popular affordable housing tool — inclusionary zoning. The justices have been asked to consider Cherk v. Marin County, which involves whether Marin County violated the unconstitutional-conditions doctrine by requiring property owners to pay a $39,960 “affordable housing” fee as a condition of receiving a permit to change the use of their land.
As discussed in prior articles, inclusionary zoning is an affordable housing tool that ties the creation of affordable housing to the creation of market-rate housing, with the goal of encouraging new residential developments to make a certain percentage of the housing units affordable to low or moderate-income residents. Many inclusionary zoning programs include measures to encourage development, such as density bonuses that allow the developer to build more units than allowable under conventional zoning, or streamlined permitting that allows developers to build more quickly. Under some ordinances, developers can select one of several alternatives, such as payment of an in-lieu fee or constructing affordable off-site units in another project.
Marin County applied its inclusionary housing ordinance to require Dartmond Cherk and the Cherk Family Trust (the Cherks) to pay a $39,960 “affordable housing” fee as a condition of receiving a permit to split their undeveloped residential lot in two. It was undisputed that the Cherks’ lot-split neither caused nor had an adverse impact on the county’s affordable housing shortage. Rather, it increased the land available for affordable housing purposes.
The Cherks filed suit, contending that the fee is invalid under the “unconstitutional conditions doctrine,” established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (Nollan) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (Dolan). Under the doctrine, the government can’t condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.
Supreme Court precedent has established “a ‘special application’ of this doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits.” Koontz v, 570 U.S. 595 (2013). As set forth in Nollan and Dolan, conditions imposing monetary exactions or dedications of property must bear an “essential nexus” and “rough proportionality” to adverse public impacts of the proposed development.
In Koontz, the Court extended the Nollan/Dolan test to apply to government demands for money as a condition for a land-use permit, holding that they too must satisfy the nexus and rough proportionality requirements. However, the Court agreed that “so long as a permitting authority offers the landowner at least one alternative [to the money condition] that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.”
The California Court of Appeals relied on the Supreme Court’s decision in Koontz in siding with the County. It held that the unconstitutional conditions doctrine is inapplicable because the Cherks could have avoided the fee by satisfying the inclusionary housing program in an alternative way. The court further held that the tests set out in Nollan, Dolan, and Koontz do not apply because the County’s demands were not intended by the County to mitigate any adverse public impacts of the Cherks’ lot-split, but rather “‘to advance purposes beyond mitigating the impacts . . . attributable to [their] particular development.’” In addition, the court concluded that that “‘legislatively prescribed monetary fees’—as distinguished from ad hoc monetary demands by an administrative agency—‘that are imposed as a condition of development are not subject to the Nollan/Dolan test.’”
In their petition for certiorari, the plaintiffs asked the Supreme Court to answer the following questions:
There is no guarantee that the Supreme Court will agree to consider the case. However, the justices have shown that they are willing to wade into contentious property disputes, including those that involve controversial zoning regulations.
If the Supreme Court does grant certiorari in Cherk v. Marin County, its decision could have widespread consequences. As of 2016, 886 jurisdictions in 25 states and the District of Columbia have inclusionary housing programs. The high-profile case has already generated several amicus briefs, including those filed by the National Association of Homebuilders and the California Association of Realtors.
The attorneys of the Scarinci Hollenbeck Land Use Law Group will continue to monitor the case. You can also find additional Supreme Court coverage on the Constitutional Law Reporter.
If you have any questions or if you would like to discuss the matter further, please contact me, Don Pepe, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!