Could a Powerful Affordable Housing Tool Be Unconstitutional?

A lawsuit involving homeowners in Marin County, Calif., not only pits Nimbys against affordable housing proponents, but also could potentially impact property rights law and strike down environmental regulations if the case goes to the U.S. Supreme Court.

The suit involves inclusionary zoning, a tool local governments use to expand the supply of affordable housing by having developers set aside below-market-rate units or pay an in-lieu fee to an affordable housing production fund that subsidizes construction of such housing or provides financial assistance for low-income residents. Two Marin County property owners, Darmond and Ester Cherk, wanted to split their undeveloped three-acre land into two single-family zoned lots, and were charged a $39,960 inclusionary zoning fee. The Cherks challenged the county fee as an unfair take of property for public use without just compensation in the form of exacting a fee.

One purpose of the takings clause is to prohibit the government from imposing costs on single individuals that should fall on the entire community. The plaintiffs say that’s clearly what’s happening to the Cherks. The developer is being held liable for trying to put a vacant property to a more productive purpose in terms of the housing it can accommodate by dividing the lot in two.

“Instead of doing what is fully within its power to do—permit much, much more housing to be built, and resolve the housing shortage—[Marin County is] holding people like the Cherks as scapegoats for the problem they’ve created,” says Larry Salzman, litigation director for the Pacific League Foundation, which is backing the Cherks.

Although there’s no guarantee that the Supreme Court will add this case to its decision docket, the justices have signaled their willingness to wade into the divisive zoning debates that punctuate the affordable housing crisis. So far, the Supreme Court docket for Cherk v. Marin County has garnered amicus briefs from a bevy of originalist, libertarian, free-market groups, as well as home builders in California and beyond. But any Supreme Court intervention into local zoning promises to be a much bigger affair. Civil rights groups are watching the case closely, too, since it has a bearing on efforts to desegregate housing in Marin County and beyond.

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