Brandon Donnelly — Daily insights for city builders. Published since 2013 by Toronto-based real estate developer Brandon Donnelly. — Page 1101

The Supreme Court of the United States may soon consider whether inclusionary zoning is in fact unconstitutional.

A pending petition by the developer of an 11-unit condominium project in the City of West Hollywood is asking whether a $540,393.28 “affordable housing fee” – which is being imposed as a mandatory approval condition – is “ subject to scrutiny under the unconstitutional conditions doctrine ” set out in previous cases.

The petition is supported by a collection of researchers and academics from Yale University, George Mason University, as well as many other institutions.

More specifically, the question asks whether a “mandated permit condition” satisfies the “essential nexus” and “rough proportionality” tests established by the following decisions: Koontz v. St. Johns River Water Management District , 133 S. Ct. 2586 (2013); Dolan v. City of Tigard , 512 U.S. 374 (1994); and Nollan v. California Coastal Commission , 483 U.S. 825 (1987).

To put it crudely, the nexus and proportionality tests essentially state that for an exaction to be constitutional, there needs to be a reasonable relationship between the ask and the adverse public impacts that can be directly attributable to the project in question.

Here is an excerpt from the petition:

Together, the nexus and proportionality tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate adverse public impacts caused by the proposed development.

In the case of 616 Croft Avenue, the argument is that this 11-unit condo project is not directly responsible for the lack of affordable housing in the city. In other words, the need for affordable housing exists independently of this project. So it fails the test.

Another excerpt:

Accordingly, the City provided no evidence of nexus and proportionality, admitting on the record that the in-lieu fee was not “intended to mitigate impacts caused by development.” Instead, the City explained that the fee was designed to meet “needs for affordable housing that exist independently of the Applicants’ residential development project.

The petition also gets into the fact that, irrespective of this test, inclusionary zoning has not necessarily been shown to have a meaningful impact on affordable housing supply. And it may actually increase housing prices because of a reduction in overall supply and because the cost burden typically gets shifted over to the market rate units. More reading here .

What do you think of this argument? It will be very interesting to see how this one plays out.

Today is Canada Day. And I love my country. (If you’re reading this via email subscription, then: Yesterday was Canada Day.)

I recognize that not everyone who reads this blog is Canadian. In fact, 50% of my email subscribers and 36% of the users who read this blog on the web are actually from the United States. More Americans subscribe to this blog than Canadians.

But today isn’t your average Canada Day. It’s the sesquicentennial anniversary of Canadian Confederation. Canadians all across the country and world are and will be celebrating. 

The CN Tower will put on a pyrotechnics show this evening at 10:30pm and I’ll be watching. There’s even the world’s largest rubber ducky bobbing around in Lake Ontario. I’m missing the connection on this one, but a 6 storey rubber ducky is definitely worthy of an Instagram post or two. Perhaps we should have gone all out and staged a complete bathtub scene in Toronto’s inner harbor. That would have been fun.

But as much as 150 years of Canada sounds and feels great, I’d like to talk about a different moniker today: Canada 150(ish). And I have two reasons for saying this.

One the most effective ways to explain the difference between Canada and the United States is to talk about how we became independent.

In the U.S. it was a “ decisive declaration ” leading to war. Americans fought for their independence and July 4, 1776 has become a clear temporal marker. They were dependent before and independent after.

In Canada, our day of independence is less decisive. Instead of complete autonomy, it marks the beginning of a long and gradual process of becoming less and less British, one which arguably didn’t fully conclude until the Canada Act of 1982 . 

So might we call today Canada 35?

One could also argue that this process isn’t fully complete. I don’t know about you, but our lingering connections to Britain – however benign they may be – actually weaken the Canadian story for me.

The second reason why I’m throwing out Canada 150(ish) is because I want to acknowledge the fact that there are people in this country who feel excluded from the solidarity that “Canada 150″ is trying to instil. Here is an excerpt from a New Yorker essay by Molly Worthen that was published early this morning:

Of course, the story of Confederation is largely a story of white men who mostly spoke English. This summer, the few Canadians who are eager to talk about history and reexamine the details of their constitution are those who feel excluded from the standard narrative of Canadian unity and progress: indigenous people and Francophone Québécois.

Now that I’ve gotten this off my chest, I’m going to get on with celebrating Canada 150 and this incredible place of democracy and opportunity. And for all of the Americans who read this blog, happy 4th of July.

Photo by Harry Sandhu on Unsplash

I have Richard Florida’s recent book, The New Urban Crisis, sitting on my bedside table. I’m only about ¼ of the way through it, but I’m really enjoying it. I’ll write more once I’m done.

What I instead want to talk about today is a recent (and related) article that Florida published in CityLab called: Did Land-Use Restrictions Save the Rust Belt? 

In it, he leans on the research of two economists – Chang-Tai Hsieh of the University of Chicago and Enrico Moretti of the University of California at Berkeley – and makes 3 valuable points.

They are:

It is estimated that land-use restrictions (which limit development / supply) have reduced overall GDP in the U.S. by about 9% or approximately $1.5 trillion per year. It is also estimated that housing supply constraints alone lowered overall growth by more than half between 1964 and 2009.

At the same time, these land-use restrictions may have benefited other regions – such as the Rust Belt – that would have otherwise lost more people and jobs to places like New York and San Francisco. The research found that without these land-use restrictions, employment growth between 1964 and 2009 would have been more than 1,000% higher in New York and almost 700% higher in San Francisco.

The final takeaway is one that we’ve talked about before on this blog. One of the most effective things we can do to counteract geographic inequality is to build great transit; transit that connects both people and land to the most desirable areas of our city.

And with that, Happy Canada Day weekend all.

Photo by João Silas on Unsplash