Tuesday, June 16, 2015

Supreme Court slaps down BIA

The California Supreme Court unanimously ruled Monday that cities have the right to require developers to make a portion of new units available as affordable housing.

The court unanimously upheld a [law] that requires developers of 20 or more units to provide 15 percent of those units at below-market rates affordable to people with low and moderate incomes.


The court rejected a challenge by the California Building Industry Association, which argued that the measure amounted to an unconstitutional taking of property without just compensation. Cantil-Sakauye wrote for the court, “This condition does not require the developer to dedicate any portion of its property to the public or to pay any money to the public.

“Instead, like many other land use regulations, this condition simply places a restriction on the way the developer may use its property by limiting the price for which the developer may offer some of its units for sale,” the court said.

More than 170 California cities and counties have adopted similar laws, known as inclusionary housing ordinances, according to the court. The San Jose law was put on hold while the building association pursued its lawsuit.
A stricter inclusionary housing ordinance could both create more affordable housing and discourage some of the more obscene high-density market-rate projects we've seen.


  1. LA Times story on the decision:


  2. Our inclusionary housing ordinance requires 10% affordable units for subdivisions of ten units or more. This can now be bumped up.

    How about requiring all fractional units of the 10% affordable unit calculation be rounded up? Seems only fair.

  3. What is the status of the BIA lawsuit against Encinitas? I heard that council had talked about negotiating--even before this important case was heard. Does anyone know what is happening?

  4. Whow a win, maybe the city will…..

  5. This is not a win…. affordable housing means crappy housing and crime.

    We lose.

    less nice houses and more trailer trash with tweeters in our neighborhoods. I am voting against all the bleeding heart liberals ruining this town.

    1. 5:57 sounds like a Planning employee or one of our local developers who want high density as a proxy to affordable housing.

      The intent of the law was not to make it "pencil out" for builders with no public benefit.

    2. No. 5:57 is just our local curmudgeon who thinks everything good peaked in 1950, and GET OFF MY LAWN YOU DAMNED KIDS!!!!!

      Great two-part series on affordable housing in Marin County on NPR last week. All the same facts and opinions as Encinitas, only more so. Part 1 is here, the link to part 2 is in the story:


    3. I assume tweeters was meant as tweakers (aka crackhead or methhead).

      [Sorry, originally replied in the wrong spot.]

    4. Inclusionary units are not usually a draw for scumbags.

      The rent break is so great that there is huge demand and the landlord/developer can take their pick. So you get either a friend or family member of the developer, or someone with stable employment and good references.

  6. I assume tweeters was meant as tweakers (aka crackhead or methhead).

  7. State the obvious much?

  8. BIA = Builders In Action

  9. Market for surplus arms and firefighting apparatus:

    “This is America. I should be able to have a howitzer or a bazooka if I want one. If I wanted to buy a fire truck, I could.”

    —Jeff Funicello
    Mesa, Arizona

  10. Our City has both an inclusionary housing policy and a density bonus policy. A developer of new-build can pay into the inclusionary housing funds, rather than actually building affordable units. A developer who invokes density bonus law, must actually build a certain number of affordable units on the site of that developer's new-build project. The BIA has asked that Council would change our local regulations so that not only inclusionary housing requirements could be satisfied by paying into a fund, but also, so could the density bonus requirements. That is how its done with respect to ecological considerations. Open space and green requirements can be met by paying into funds. The "housing banks" or whatever they're called to satisfy environmental impact mitigation, etc., do NOT have to be located in Encinitas!

    I'm not sure about the "housing banks" for inclusionary housing, whether or not the housing that developer fees fund must be located in Encinitas. I do know that that over $800,000 of in-lieu affordable housing fees went to the Encinitas Preservation Association, whose board of directors is composed of developers, to fund the purchase of the Boathouses property.

    Preserving the Boathouses was a good thing, but those four units, which are now to be rented as affordable housing, in perpetuity, were ALREADY providing affordable housing.

    The Boathouses should be self-sustaining, through the rents that are charged. The EPA had promised that one of the Boathouses would one day be open, which could be done with a minor or major use permit, as a museum. Is that ever going to happen?

    Why is Tom Cousins now asking for more subsidization through the City for what should be routine, ongoing maintenance of rental properties? Because the property is owned by a tax exempt organization, the EPA does not have the expense of paying property taxes, as most private individuals would. Plus donations are considered a tax write-off.

    Are both Boathouses now being rented out? All the units should be rented, if there is a a need for more funds for repairs and maintenance. Also, the City should consider waiving some of the permitting costs associated with repairing or maintaining, bringing up to code, existing affordable housing, particularly if that affordable housing is being counted against state mandated requirements.

  11. So why has the Council agreed to negotiate with the BIA in Encinitas and not even wait to hear this ruling?

    Why should we negotiate since the builders have been breaking laws for years>

  12. I can't help but recall slimy Marco and slimy Harwood speaking at the podium during city council meetings and threatening everyone, council, staff, the public, to stop fighting their development ideas for our town. Well boo hoo guys.

    Now if we can only get our council to stand up for this community against the developer onslaught. That would be quite refreshing for a change. Yea, I know, dream on. Hope springs eternal and the BIA lost. Happy Days, at least for the moment.

  13. The State Supreme Court's opinion in the CBIA v City of San Jose case makes clear early on that the City's inclusionary housing ordinance was passed to help the city meet its affordable housing goals (aka RHNA). The opinion sounds very sympathetic to the legislative objectives spelled out in the Housing Element statute.

    While this case has no direct bearing on the current BIA lawsuit against Encinitas, it should give pause to those who want to risk another lawsuit regarding the city fulfilling its responsibility in updating the Housing Element.

    1. The city has been trying to "update the Housing Element" for at least 10 years. I don't think that any of the members of the Planning Department nor any of the many consultants who on their own we have paid millions of dollars, have missed a single paycheck.

      Are you telling me that 28 "obstructionists," who on their days off from their own jobs while working as volunteers can derail this project that we have already wasted millions of dollars on?

      How incompetent are these people?

      The real obligation should be for a forensic audit to see where all of these funds have gone.

    2. 8:49 AM

      Talk to your council.

    3. They constantly thank and praise staff.

      If council does not start listening and taking responsibility, they are going to caught with their pants down if other agencies decide to investigate for malfeasance.

    4. The Encinitas Gorilla post this week says it like it is. The most disappointing council people are not Gaspar and Muir since we knew from their campaign statements that they were friendly towards the builders. That leaves.......

  14. Some of our council members famously embarked on "listening tours" in the early days of their campaigns.

    Please demonstrate that you were and are still listening to citizens by voting in accordance to the policies that matter to us like preservation of community character, and quality of life. If you voted consistent with the promises that you made before you were elected, that would be a good start!