Regulatory Takings

Supreme Court’s Sheetz decision casts doubt on validity of Massachusetts inclusionary zoning regulations


The U.S. Supreme Court’s recent decision in Sheetz v. County of El Dorado may have a profound impact on inclusionary zoning ordinances and bylaws in Massachusetts. I suspect few of those regulations – if challenged – will pass constitutional muster under what’s now a quartet of crucial, related Supreme Court (SCOTUS) decisions: Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), Koontz v. St. Johns River Water Management District (2013), and Sheetz. For purposes of this post, “inclusionary zoning” means zoning regulations that require new residential developments to include a certain number or percentage of affordable housing units or that authorize a payment of money in lieu of providing the required units.

First, some background.

In Nollan the plaintiffs applied for a permit to expand their Southern California beach bungalow. The defendant commission, applying state law, conditioned issuance of the permit on the Nollans’ granting a public access