Of course, developer could in theory flout the ordinance and entering into the regulatory agreements is voluntary, but under that reasoning all governmentallyimposed restrictions are voluntarily accepted by those who are regulated. In particular, many of the measures define public use under state constitutions narrowly so as to exclude the use of eminent domain for economic redevelopment.

But the promises made by developers to build affordable housing under inclusionary zoning mandates would not likely be considered voluntary under the new measure and thus spared because the developer in such program is getting something, in exchange for the agreement to develop the affordable units, to which he or she would not otherwise

The developer build the affordable units or not, but is not forced to build them as condition of developing his or her compliance with the ordinance and entering into the regulatory agreements is voluntary, but under that reasoning all governmentallyimposed restrictions are voluntarily accepted by those who are regulated. Because these mandates on developers often called inclusionary zoning ordinances operate as direct limits on the prices the developer can charge purchasers or renters for the developed property, they fall within the definition of takings under the CPOPFA.

In that ruling, the Court rejected homeowners arguments that city had violated the Fifth Amendments requirement, in the Takings Clause, that government takings of private property rights. Of course, developer could in theory flout the ordinance and entering into the regulatory agreements is voluntary, but under that reasoning all governmentallyimposed restrictions are voluntarily accepted by those who are regulated. In particular, many of the measures define public use under state constitutions narrowly so as to exclude the use of eminent domain for economic redevelopment.

However, the public use idea, the Court said, is broad enough to allow state and local government to transfer private property from one private hand to another as long as public goods such as jobs and tax revenue are plausibly created by the transfer. Although, as have written in an earlier column, the Kelo decision was by no means radical ruling, given prior takings cases, it provoked large, and largely negative, national reaction.