City of Berkeley v. 1080 Delaware, LLCAnnotate this Case
In 2004, Berkeley issued a use permit for construction of a building with 51 residential rental units and ground floor commercial space. Permit condition 10 provides: “Before submission for building permit, the applicant shall submit floor plans and schedules … showing the location of each inclusionary unit and the sales or rental prices…. and that the unit rent or sales price complies with Chapter 23C.12” (Inclusionary Housing Ordinance). The Ordinance was designed to comply with Government Code section 65580, requiring a general plan to contain a housing element stating how the local agency will accommodate its share of regional need for affordable housing. The ordinance requires that 20 percent of all newly constructed residential units be reserved for households with below-median incomes and rented at below-market prices. The development took more than seven years. The city sought a declaration that the condition was valid, conceding that the ordinance has been preempted by the Costa-Hawkins Rental Housing Act (Civ. Code, 1954.50), but arguing that it may enforce the condition, the validity of which was not previously challenged. The court of appeal affirmed judgment in favor of the city.