LOS ANGELES—A California exaction case might be a pathway for developers to toss out Measure JJJ, a reviled measure that passed in November requiring all developers building projects with any exemptions to the master plan to use union labor and allot a portion of units to affordable housing. The specific case in question sees the City of West Hollywood forcing a developer to include affordable housing in exchange for approval of the project. If the Supreme Court hears the case and rules in favor with the property owner, the next step could be to overturn Measure JJJ. To find out more about how the ruling could impact local development, we sat down with Paul Beard, counsel at Alston & Bird, for an exclusive interview.

GlobeSt.com: How might a decision in favor of the property owner affect the recently passed Measure JJJ in Los Angeles?

Paul Beard: If the Supreme Court took the case and ruled with the property owner, that ruling would become a Federal Constitutional Standard that would supplant any federal, state or local law or initiative. As a result, it would impact that initiative. That, of course, depends on the Supreme Court's ruling. I don't think that the court will go so far as to applying this strict scrutiny to the law of issue. The petitioner is asking in this case for the Court to say what the standard is. If the Court makes clear that it doesn't matter what form the exactions take, all exactions are subject to strict scrutiny, then someone would need to challenge the decision that was passed, presumably under the Supreme Court precedent, and say that the initiative doesn't set out that what is being required of developers has any relationship to the impact of their project, and so it is therefore unconstitutional. Someone would have to take the next step of challenging the imitative.

GlobeSt.com: The specific case that the Supreme Court could review is also about affordable housing. In this case, what is the property owner's argument?

Beard: From our perspective, it doesn't make a difference what the public project is. In this case, it is affordable housing. It is the point that the developers that are building this project are causing a lack of affordable housing, and what you are trying to take from them is remedying the impact that they are causing. It is actually pretty amazing in this case because the City of West Hollywood said that they think the project is actually helping affordable housing and that adding more residential units will push the cost of housing down. That is basic supply and demand. We have an amazing admission from the city that the lack of affordable housing has nothing to do with what the developers did but the city feels that developers are in the best position to subsidize affordable housing for the city.

GlobeSt.com: Exaction cases are not uncommon in California. Why?

Beard: This is really one of the themes in these exactions cases. It is unfair to force a select few, in this case developers, to bear the burden of affordable housing. If it truly is a public necessity that benefits the entire community, than our view is that the entire community should have to pitch in by way of a tax. Of course, taxes aren't popular, so if you are a city official, you are instead going to target the unpopular developer. In part, it is a political reaction to the fact that taxes aren't popular and that the community wants certain things but doesn't want to pay for them.

GlobeSt.com: How might a decision in favor of the property owner affect the recently passed Measure JJJ in Los Angeles?

GlobeSt.com: The specific case that the Supreme Court could review is also about affordable housing. In this case, what is the property owner's argument?

GlobeSt.com: Exaction cases are not uncommon in California. Why?

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Potential SCOTUS Review Could Hault Measure JJJ

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