The Florida HBA won an important round in its fight challenging the constitutionality of the inclusionary zoning ordinance the city of Tallahassee passed in spring 2005 when a circuit court judge denied the city's motion to dismiss the trade group's complaint against the city.
The law in question says that at least 10 percent of the new homes in a development with 50 or more single-family or multifamily homes must be sold for $159,378 or less.
The court's ruling, which was issued this past Monday by Judge Terry P. Lewis, confirmed that the HBA has a vested interest in the inclusionary zoning program. The original complaint was dismissed last year when the court ruled that the city's zoning policy had no impact on HBA members.
Keith Hetrick, general counsel for the Florida HBA, says the trade group changed the judge's mind by demonstrating in an amended complaint that Tallahassee developer Hermitage Ventures and local property owner Sue Boynton were affected by the ordinance.
In the Hermitage situation, the developer paid a $300,000 fee to the city as an alternative to building affordable units. And, in the case of Sue Boynton, the HBA argued-and the judge agreed-that her nine acres of property were subject to the ordinance.
"All we had to do here was show that there was some impact," says Hetrick, adding that the HBA is encouraged since Judge Lewis has already heard three hours of oral arguments on this case, which is very unusual for a summary judgment motion.
The city has 20 days to respond to the amended complaint. Hetrick expects that the case will move forward in the next few weeks.
Along with the Florida HBA, the Tallahassee Builders Association and the Tallahassee Board of Realtors are parties in the case. The builders and Realtors filed the lawsuit to stop inclusionary zoning programs from spreading across the state. The builders and Realtors claim that the city's law is a violation of due process, an unlawful taking, and an unlawful tax. Efforts to reach the city's legal department were unsuccessful.
Tallahassee's example is being watched closely statewide as a benchmark and guide for future affordable housing programs.