Court of Appeal Rejects Claim That Dolan/Nollan Applies To Facial Challenge To Local Ordinance

In Action Apartments v. City of Santa Monica (here), the Court of Appeal for the Second Appellate District has rejected an attempt to expand scrutiny under the Takings Clauses of the federal and California Constitution. The plaintiff, represented by lawyers from the Pacific Legal Foundation, claimed that the "nexus" and "rough proportionality" tests applicable to adjudicative exactions under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), applied to a facial challenge to local land use legislation--in this case, an ordinance imposing new affordable housing requirements on developers of multi-family housing. This had been settled law under San Remo Hotel v. City and County of San Francisco, 27 Cal. 4th 643 (2002), and earlier cases, but the plaintiff contended that the law had changed when the U.S. Supreme Court decided Lingle v. Chevron U.S.A., 544 U.S. 528 (2005), where the Court held that the "substantially advance" test enunciated in Agins v. City of Tiburon, 447 U.S. 255 (1980), was no longer part of Takings Clause jurisprudence. However, the Action Apartment court held that this was a misreading of Lingle, which had disclaimed any intent to disturb the Court's other prior rulings under the Takings Clause.

As the result of this ruling, the Court of Appeal did not need to decide whether the plaintiff's Takings Clause challenge was also barred by Home Builders Ass'n v. City of Napa, 90 Cal. App. 4th 188 (2001), where the court upheld another affordable housing ordinance against a facial challenge under the Takings Clause. (I represented intervenors in the Napa case, who successfully defended the local affordable housing ordinance.)

This holding makes no change from current law, and is unlikely to warrant review by either the California Supreme Court or the United States Supreme Court.