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Fight over WeHo affordable housing law may head to US Supreme Court

Shelah and Jonathan Lehrer-Graiwer are fighting the city of West Hollywood over a policy that requires developers provide a certain percentage of below-market housing when they build. Pacific Legal Foundation

A dispute over a West Hollywood policy that requires developers to include a certain amount of below-market rate housing in their projects may be headed to the U.S. Supreme Court.

Justices could decide as early as Tuesday whether they will hear the case of 616 Croft Ave., LLC v. City of West Hollywood.

The plaintiffs — husband and wife Shelah and Jonathan Lehrer-Graiwer — said they were unfairly subjected to the city's  "inclusionary zoning" regulations when they sought to build condominiums. The city says that it has the right to enforce an ordinance intended to promote the development of housing for West Hollywood's low-to-moderate income residents. 

In the early 2000s, the couple purchased two adjacent homes with the intention of replacing them to build an 11-unit condo building. The city said they had to include one below-market rate unit or pay the dollar equivalent, about $540,000, into the city’s affordable housing fund.

The couple paid the fee several years ago "under protest" and completed the project in 2015. They've been fighting to get the money back with the help of the Pacific Legal Foundation, which advocates for property rights.

"They are actually adding [a net of] nine units to the community, and to ask them to provide more as a condition of permit approval goes beyond the city’s constitutional authority," said lead counsel Brian Hodges.

West Hollywood's city attorney, Mike Jenkins, said the debate isn't over whether the couple added to the city’s housing supply. Jenkins said the point of inclusionary zoning is to make sure that housing is available to people who can't afford market-rate units.  

"West Hollywood, through its zoning policies, has determined that we want to have a certain type of community and to be available to all economic segments," Jenkins said.                                                       

According to the real estate site Zillow, one of the units is for sale for $2.1 million. Another rents for  $5,995 a month.

The lower courts sided with the city, so the couple appealed to the state Supreme Court, which declined to hear the case. Now it's up to the U.S. Supreme Court to decide whether more legal arguments are warranted. Should the justices take the case, a decision would not be expected until next year.  

The West Hollywood case bears similarities to one that challenged San Jose's inclusionary zoning policy. The U.S. Supreme Court declined to hear that case, letting stand the decision by the California Supreme Court supporting the city.