A shaky amicus tactic did not keep the City of West Hollywood, California, from successfully persuading the U.S. Supreme Court on Monday to leave in place the city's regulations requiring developers to subsidize low-income housing.

The justices denied certiorari in 616 Croft Ave. v. City of West Hollywood, a challenge to the city's “inclusionary zoning” policy that required builders of an 11-unit condominium in 2011 to pay a $540,393.28 “affordable housing fee” to help subsidize construction of low-income housing elsewhere in the city. In some instances, builders instead are required to sell 20 percent of their units at below-market prices.

Owners Shelah and Jonathan Lehrer-Graiwer paid the fee in protest and went to court. But they ran afoul of state court precedents allowing such “exactions.” The California Courts of Appeal ruled that the housing fee was a valid way to “enhance the public welfare,” and did not have to be “reasonably related” to the impact of the development itself on the city's affordable housing needs. The California Supreme Court did not review the decision.

616 Croft owners Jonathan and Shelah Lehrer-Graiwer.

The case, brought to the Supreme Court by the Pacific Legal Foundation, generated interest from property rights and libertarian advocates who opposed the fee as an unconstitutional government taking of property. Six such organizations sought to file amicus curiae briefs before the court decided whether or not to grant review—an increasingly popular trend. Under the court's Rule 37, the filing of such briefs must be accompanied by letters of consent by all parties, apparently aimed at weeding out frivolous briefs.

The property owners consented to the amicus filings. But the lawyer for West Hollywood did not—an unusual move in Supreme Court practice, in part because it may convey that there's something to hide. It also forces the amicus groups to file a motion with the court seeking to submit the briefs anyway—a motion that is “not favored,” according to the court's rule.

Michael Jenkins of Jenkins & Hogin, who serves as West Hollywood's city attorney, said Monday he denied consent to the briefs because, in his view, the case did not present the question the property owners were pressing, and it made no sense for the court to receive amicus briefs that had nothing to do with the actual issues. “I didn't feel they would be helpful to the court,” Jenkins said.

In March Jenkins also waived his right to respond to the petition filed by the property owners. But the high court requested a response in late April. Veteran Supreme Court advocate Jeffrey Lamken of Molo Lamken was retained to write the response, also known as the “brief in opposition.” Lamken, who joined the case after Jenkins denied consent to the amicus briefs, declined to comment.  

The city's refusal to consent to the briefs raised eyebrows among the amicus filers.

“It's rare, but happens occasionally with inexperienced Supreme Court practitioners,” said Ilya Shapiro, senior fellow at the Cato Institute, which filed an amicus brief supporting the owners. “I can understand not lodging a blanket consent if you want to make sure only serious people are filing. But denying consent altogether—particularly to repeat players with established reputations—only draws attention to the case.”

But in the end, West Hollywood's gambit did not backfire. In the Supreme Court's order Monday, the justices denied certiorari—the city's hoped-for result—and at the same time granted leave to file the six amicus briefs.

The disposition of the case leaves the takings issue unresolved for now. Fee-for-permit policies like West Hollywood's are “increasingly prevalent” in more than 500 municipalities in California and across the nation, according to a brief filed by scholars of land use regulation. Andrew Grossman of Baker & Hostetler is counsel of record on the brief. The Pacific Legal Foundation has called the fee a “government license to steal.”

Foundation lawyer Brian Hodges, counsel of record on the cert petition, asserted that the California decision ran contrary to a line of U.S. Supreme Court rulings on “unconstitutional conditions,” culminating with the 1987 Nollan v. California Coastal Commission ruling. Those precedents, the foundation argues, require that fees like those imposed by West Hollywood have to bear “rough proportionality” to the impact the development could have.

A shaky amicus tactic did not keep the City of West Hollywood, California, from successfully persuading the U.S. Supreme Court on Monday to leave in place the city's regulations requiring developers to subsidize low-income housing.

The justices denied certiorari in 616 Croft Ave. v. City of West Hollywood, a challenge to the city's “inclusionary zoning” policy that required builders of an 11-unit condominium in 2011 to pay a $540,393.28 “affordable housing fee” to help subsidize construction of low-income housing elsewhere in the city. In some instances, builders instead are required to sell 20 percent of their units at below-market prices.

Owners Shelah and Jonathan Lehrer-Graiwer paid the fee in protest and went to court. But they ran afoul of state court precedents allowing such “exactions.” The California Courts of Appeal ruled that the housing fee was a valid way to “enhance the public welfare,” and did not have to be “reasonably related” to the impact of the development itself on the city's affordable housing needs. The California Supreme Court did not review the decision.

616 Croft owners Jonathan and Shelah Lehrer-Graiwer.

The case, brought to the Supreme Court by the Pacific Legal Foundation, generated interest from property rights and libertarian advocates who opposed the fee as an unconstitutional government taking of property. Six such organizations sought to file amicus curiae briefs before the court decided whether or not to grant review—an increasingly popular trend. Under the court's Rule 37, the filing of such briefs must be accompanied by letters of consent by all parties, apparently aimed at weeding out frivolous briefs.

The property owners consented to the amicus filings. But the lawyer for West Hollywood did not—an unusual move in Supreme Court practice, in part because it may convey that there's something to hide. It also forces the amicus groups to file a motion with the court seeking to submit the briefs anyway—a motion that is “not favored,” according to the court's rule.

Michael Jenkins of Jenkins & Hogin, who serves as West Hollywood's city attorney, said Monday he denied consent to the briefs because, in his view, the case did not present the question the property owners were pressing, and it made no sense for the court to receive amicus briefs that had nothing to do with the actual issues. “I didn't feel they would be helpful to the court,” Jenkins said.

In March Jenkins also waived his right to respond to the petition filed by the property owners. But the high court requested a response in late April. Veteran Supreme Court advocate Jeffrey Lamken of Molo Lamken was retained to write the response, also known as the “brief in opposition.” Lamken, who joined the case after Jenkins denied consent to the amicus briefs, declined to comment.  

The city's refusal to consent to the briefs raised eyebrows among the amicus filers.

“It's rare, but happens occasionally with inexperienced Supreme Court practitioners,” said Ilya Shapiro, senior fellow at the Cato Institute, which filed an amicus brief supporting the owners. “I can understand not lodging a blanket consent if you want to make sure only serious people are filing. But denying consent altogether—particularly to repeat players with established reputations—only draws attention to the case.”

But in the end, West Hollywood's gambit did not backfire. In the Supreme Court's order Monday, the justices denied certiorari—the city's hoped-for result—and at the same time granted leave to file the six amicus briefs.

The disposition of the case leaves the takings issue unresolved for now. Fee-for-permit policies like West Hollywood's are “increasingly prevalent” in more than 500 municipalities in California and across the nation, according to a brief filed by scholars of land use regulation. Andrew Grossman of Baker & Hostetler is counsel of record on the brief. The Pacific Legal Foundation has called the fee a “government license to steal.”

Foundation lawyer Brian Hodges, counsel of record on the cert petition, asserted that the California decision ran contrary to a line of U.S. Supreme Court rulings on “unconstitutional conditions,” culminating with the 1987 Nollan v. California Coastal Commission ruling. Those precedents, the foundation argues, require that fees like those imposed by West Hollywood have to bear “rough proportionality” to the impact the development could have.