COM 0200.040 2006-2008 - Laserfiche WebLink

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Court's "essential nexus" test in Nollan v. California Coastal Commission. ~ Because linkage fees are generally a legislative form of exactions, the second issue is whether the "rough proportionality" test in Dolan v. City of Tigard2 applies. The resolution of this second issue turns in part on whether a jurisdiction accepts the administrative-legislative distinction, a question which the Hawaii appellate courts have yet to resolve. By way of background, "[t]he broad concept of linkage describes any of a wide range of municipal regulations that condition the grant of development approval on the payment of funds to help finance services and facilities needed as a result of development." 3 "In the context of developing affordable housing, linkage refers to any scheme that requires developers to mitigate the adverse effects ofnon-residential development upon the shortage of housing either indirectly, by contributing to anaffordable-housing trust fund, or directly, by actually constructing affordable housing.i4 Before addressing the issues, note that Hawai`i's impact fee statute, Hawaii Revised Statutes 46-141 to 148, does not apply to housing linkage fees, and, indeed, expressly excludes such fees from the authority granted to Hawaii's four counties to levy impact fees for public facilities. Section 46-142(b) of the Hawaii Revised Statutes states that "impact fees may ~ 483 U.S. 825, 837 (1987). ~ 512 U.S. 374, 391 (1994). ' Holmdel Builders Assn v. Holmdel, 583 A.2d 277, 284 (N.J. 1990). /d.; accord John A. Henning, Jr., Comment, Mitigating Price Effects wUh a Housing Linkage Fee, 78 Cali£ L. Rev. 721, 722 (1990) (linkage fees are a form of exactions that levy "fees on downtown office development to subsidize low- and middle-income housing" (footnote omitted)); Jane E. Schukoske, Housing Linkage: Regulating Development Lmpact on Housing Costs, 76 Iowa L. Rev. ]Ol 1, 1011 (1991) ("Housing linkage programs require or offer inducements to private developers to produce affordable housing or to pay a sum for development of affordable housing into housing trust funds."); 1 Land Use Law § 9.23 ("A number of cities have adopted exaction programs that require downtown office and commercial developers to provide housing for lower-income groups or contribute to a municipal fund for the construction of such housing." (footnote omitted)). 4