Laserfiche WebLink
that individuals seeking to build hotels must "construct affordable housing at a minimum of one <br /> affordable housing unit for every four apartment-hotel, hotel, or motel rooms or fraction <br /> thereof."10 Likewise, Section 11-4 of the Hawaii County Code, which is entitled "affordable <br /> housing requirements" requires affordable housing when a rezoning occurs. ~ ~ Under Section <br /> 11-4, when the application rezones and seeks to create "[fJive or more residential units or lots," it <br /> must "earn affordable housing credits equal to twenty percent of the number of units or lots <br /> (rounded to the nearest .5)."~~ Accordingly, the Hawaii impact fee statute, HRS 46-141 to <br /> 148, likely does not apply to affordable housing requirements, and, consequently, does not apply <br /> to linkage fees because such fees necessarily concern the government's expenditures for <br /> affordable housing.13 Nonetheless, although linkage fees may not be subject to nexus and <br /> proportionality tests statutorily, they may still be subject to such tests under the United States, <br /> U.S. Const. amend. V, XIV, and Hawaii Constitutions, Haw. Const. art I, § 5. <br /> Turning to the first issue, because linkage fees are a form of exactions they are subject to <br /> <br /> the "essential nexus" takings test under Nollan.14 Under Nollan, "a permit condition that serves <br /> <br /> the same legitimate police-power purpose as a refusal to issue the permit should not be found to <br /> 10 Maui, Haw., Maui County Code § 2.94.030. <br /> Hawaii, Haw., Hawaii County Code § 11-4. <br /> 12 Id. § 11-4(b)(2). <br /> " See Holmdel Builders Assn, 583 A.2d at 284. <br /> 14 483 U.S. 825, 837 (1987). See Commercial Builders oJN. Cal. v. Sacramento, 941 F.2d 872, 874 (9th <br /> Cir. 1991). <br /> 6 <br /> <br />