Commercial Builders of Northern California, and Its Affected Members v. City of Sacramento, Council of the City of Sacramento

941 F.2d 872, 91 Daily Journal DAR 9609, 91 Cal. Daily Op. Serv. 6253, 1991 U.S. App. LEXIS 17678, 1991 WL 146977
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 7, 1991
Docket89-16398
StatusPublished
Cited by45 cases

This text of 941 F.2d 872 (Commercial Builders of Northern California, and Its Affected Members v. City of Sacramento, Council of the City of Sacramento) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commercial Builders of Northern California, and Its Affected Members v. City of Sacramento, Council of the City of Sacramento, 941 F.2d 872, 91 Daily Journal DAR 9609, 91 Cal. Daily Op. Serv. 6253, 1991 U.S. App. LEXIS 17678, 1991 WL 146977 (9th Cir. 1991).

Opinions

SCHROEDER, Circuit Judge:

INTRODUCTION

Commercial Builders appeals the district court’s grant of summary judgment in favor of the City of Sacramento in Commercial Builders’ suit challenging a city ordinance to help expand available low-income [873]*873housing. The Ordinance in question conditions certain types of nonresidential building permits upon the payment of a fee intended to offset the burdens on the city caused by low-income workers who move there to fill jobs created by the project in question. Appellants are a group of commercial developers who filed suit contending the ordinance constitutes a taking under the fifth and fourteenth amendments.

The district court granted summary judgment in favor of the city, holding that the Ordinance did not effect an unconstitutional taking. It specifically found that the Ordinance substantially advanced a legitimate interest and that the city had adequately supported its contribution requirement by showing a sufficient nexus between nonresidential development and the demand for low-income housing. The court therefore concluded that the ordinance was not infirm under Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), which requires such a nexus between land use restrictions and the articulated purpose behind them. Because we agree that the Ordinance here at issue does not amount to an unconstitutional taking, we affirm.

DISCUSSION

In 1987, the City and County of Sacramento commissioned a consulting firm, Keyser-Marston Associates, to study the need for low-income housing, the effect of nonresidential development on the demand for such housing, and the appropriateness of exacting fees in conjunction with such development to pay for such housing. Keyser-Marston submitted its report, estimating the percentage of new workers in the developments that would qualify as low-income workers and would require housing. As instructed, it also calculated fees for development based on a yearly subsidy of $12,000 per qualified household that would be connected to the development. This figure represented the difference between $42,000, the minimum cost of building a two-bedroom apartment, and $30,000, the maximum rental income expected from a low-income household. Also as instructed, however, in the interest of erring on the side of conservatism in exacting the fees, it reduced its final calculations by about one-half.

Based upon this study, the City of Sacramento enacted the Housing Trust Fund Ordinance on March 7, 1989. The Ordinance lists several city-wide findings, including the finding that nonresidential development is “a major factor in attracting new employees to the region” and that the influx of new employees “create[s] a need for additional housing in the City.” Pursuant to these findings, the Ordinance imposes a fee in connection with the issuance of permits for nonresidential development of the type that will generate jobs. The fees, calculated using the Keyser-Marston formula, are to be paid into a fund to assist in the financing of low-income housing. The city projects that the fund will raise about $3.6 million annually, nine percent of the projected annual cost of $42 million for the needed housing. Additional money will come from other sources, such as debt funding and general revenues.

Commercial Builders does not argue that the city lacks a legitimate interest in expanding low-income housing. Rather, it contends that this Ordinance constitutes an impermissible means to advance that interest, because it places a burden of paying for low-income housing on nonresidential development without a sufficient showing that nonresidential development contributes to the need for low-income housing in proportion to that burden. We affirm because we find the Ordinance sufficiently related to the legitimate purpose it seeks to achieve.

We have held that a condition placed upon the granting of a permit to develop land may constitute an impermissible taking, but we have done so only where the condition lacked any rational relationship to the project for which the permit was sought. In Parks v. Watson, 716 F.2d 646 (9th Cir.1983), we held that where a developer seeking vacation of platted streets offered to pay for such vacation, a city could not insist that the developer dedicate its geothermal wells to the city as a precon[874]*874dition for such vacation. The dedication requirement, we held, “had no rational relationship to any purpose related to the vacation of the platted streets.” 716 F.2d at 653. The condition therefore violated the fifth amendment.

We noted in Parks that the analysis we applied was based upon a consensus among the states that had considered the constitutionality of subdivision exaction regulations. 716 F.2d at 653. Prior to Nollan, other federal courts similarly upheld ordinances placing restrictions or conditions upon development where the ordinances were reasonably related to legitimate public purposes. See, e.g., Rogin v. Bensalem Township, 616 F.2d 680, 690-92 (3d Cir.1980), cert. denied sub nom. Mark-Garner Associates v. Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981); Maher v. City of New Orleans, 516 F.2d 1051, 1064-67, reh’g denied, 521 F.2d 815 (5th Cir.1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976); Texas Landowners Rights Ass’n v. Harris, 453 F.Supp. 1025, 1031-32 (D.D.C.1978), aff'd mem., 598 F.2d 311 (D.C.Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979). Under this analysis, the Ordinance here at issue cannot be said to work an unconstitutional taking. It was enacted after a careful study revealed the amount of low-income housing that would likely become necessary as a direct result of the influx of workers that would be associated with the new nonresidential development. It assesses only a small portion of a conservative estimate of the cost of such additional housing. The burden assessed against the developers thus bears a rational relationship to a public cost closely associated with such development.

The appellants contend that, even if the Ordinance would pass constitutional muster under these principles, it must be struck down because the Supreme Court has now articulated a more stringent standard under which courts must analyze the imposition of conditions upon development. The appellants point out that in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), the Court held that such conditions must not only be ones that the government might “rationally have decided” to employ for a given legitimate public purpose; they must also substantially advance such a purpose. See 483 U.S. at 834 & n. 4, 107 S.Ct. at 3147 & n. 4. They argue that under the standard articulated in Nollan,

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941 F.2d 872, 91 Daily Journal DAR 9609, 91 Cal. Daily Op. Serv. 6253, 1991 U.S. App. LEXIS 17678, 1991 WL 146977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-builders-of-northern-california-and-its-affected-members-v-ca9-1991.