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stays in the contemplated affordable housing range, through a series of transfer and buyback <br /> <br /> restrictions. <br /> II. CONCLUSION <br /> While Kauai County should be congratulated for recognizing and attempting to address <br /> <br /> the workforce and affordable housing shortage in the county -and in particular, ensuring that <br /> <br /> that contemplated workforce units remain affordable over time - it may not do so except by <br /> <br /> constitutional means. First, the draft Housing Policy Ordinance appears to "exact" the <br /> <br /> workforce/affordable housing increment at an inappropriate and unconstitutional stage in the <br /> land development process: rezoning. The premise upon which any and all legal land <br /> <br /> development conditions -exactions, dedications, impact fees, in lieu fees -rests is that they are <br /> development driven: the contemplated project will require public facilities for which the <br /> landowner/developer must contribute a fair share. Rezoning, while it may be a necessary <br /> <br /> precedent to land use and development, neither creates nor drives the need for public facilities. It <br /> is therefore unconstitutional to require exactions of any kind as a condition for change of use by <br /> <br /> means of zoning map amendments (rezoning). <br /> Second, unless the county can demonstrate a clear rational and proportional nexus <br /> between market cost developments and the imposition ofbelow-market cost housing set-asides,it <br /> may not require them at any stage in the land development process. What scant precedent exists <br /> for imposing such exactions on residential developments does so only when the local <br /> government requiring such exactions provides a series of bonuses to help offset the cost of the <br /> mandatory affordable housing set-asides. Thus, for example, a recent intermediate California <br /> 2 <br /> <br />