Agenda - 03-21-1990 - Laserfiche WebLink

Browse Search

[24] [25] LAND USE 169 lower-income he victims for violate the Fifth and Fourteenth Amendments." It is not so ould we place shocked at the notion that the poor cannot afford most new housing to permit the pillaging of land values from private prop- = would agree erty owners to support inclusionary zoning schemes. n inclusionary tie traditional Inclusionary Set-Asides and the Law r5 will consist the protected Inclusionary set-aside techniques are certainly legal mecha- ly marginally nisms in New Jersey and California. Most commentators who ople who are have written on the subject argue that in principle they are valid the median) regulatory devices.27 The supporters of inclusionary programs y's inclusion- argue that they are no different than other development exac- 'mes but also tions, such as off-site improvement exactions. Since exclusion- wyers would ary developments externalize costs onto society, the argument y in a devel- goes, inclusionary exactions, which merely require developers only market to internalize costs, bear a rational nexus to the needs otherwise created by the development. Other supporters of such programs tinly a more view such regulatory techniques as government's legitimate re- larket home capture of a windfall that government created by allowing the ality. Hous- development. new home Opponents of inclusionary zoning programs view them as an ieir profits, inefficient and inequitable scheme for the redistribution of tay in busi- wealth or as a tax on new housing to make in-kind distributions ng delivery to a narrow class of householders. )ur jurisdic- Most will conclude, after reading the literature,2B that such arded their programs will probably be upheld from a federal constitutional sk substan- iers in any d give the 26 See the Court's discussion in Agins v.Tiburon,447 U.S.225,260-261, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), which, while reiterating the Court's concern for the "taking issue," does conclude that in this case no taking had rgets who occurred. See also San Diego Gas& Elec. Co. v. City of San Diego, 450 U.S. )vernment 621, 101 S. Ct. 1287, 67 L. Ed. 2d 551 (1981). :y are not 21 Schwartz&Johnson,note 2supra. at 19; Hagman, note 25 supra. But see i between Board of Supervisors v.DeGroff Enterprises,Inc.,214 Va.235, 198 S.E.2d 600 's for sac- (1973)• h picking 28 The author would suggest, in addition to the Hagman works cited herein, rt, and he that the interested reader should consult: M. Brooks, et al.,Housing Choice issue can (1980); H. Franklin, D. Falk & A. Levin, In-Zoning: A Guide for Policy Makers on Inclusionary Land Use Programs (1974); Ellickson. "The Irony of e, even if Inclusionary Zoning," Resolving ng," in Resolvin the Housin g Crisis M.B. Johnson, ed. issue can 1982); Burton, "California Legislature Prohibits Exclusionary Zoning, Man- said that dates Fair Share: Inclusionary Housing Programs a Likely Response," 9 San 5tti who 4 Fern. V. L: Rev. 19 (1981): Kleven, "Inclusionary Ordinances—Policy and Legal Issues in Requiring Private Developers to Build Low Cost Housing," 21 U.C.L.A. L. Rev. 1432 (1974).