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be a taking if the refusal to issue the permit would not constitute a taking."15 In addition, under <br /> Nollan, the government bears the burden of proving this nexus.tb In the context of linkage fees <br /> in particular, one treatise explains that linkage fees satisfy this test "only if the municipality can <br /> show that downtown development contributes to the housing problem~~ the linkage exaction is <br /> intended to remedy."~$ There is no disagreement that Nollan's nexus test, or its close <br /> equivalent, applies to linkage fees. <br /> For example, in Commercial Builders ofN Cal. v. Sacramento,19 the Ninth Circuit held <br /> that an ordinance which imposed a linkage "fee in connection with the issuance of permits for <br /> nonresidential development of the type that will generate jobs,i20 was constitutional under <br /> <br /> Nollan.21 The court explained that "the [o]rdinance was implemented only after a detailed study <br /> is Nolan, 483 U.S. at 836 (emphasis added). <br /> 16 Dolan, 512 U.S. 391 n.8 (citing Nollan, 483 U.S. at 836). <br /> A "housing problem," 1 Land Use Law § 9.23, is the typical interest which the Counties of Hawaii <br /> identify as a legitimate state interest in Cheir ordinances, see, e. g., Maui, Haw., Maui County Code § 2.94.010 ("The <br /> council finds that there is a critical shortage of affordable housing in the counTy."); Hawaii, Haw., Hawaii County <br /> Code § 11-2(5) (setting forth the objective of"Requir[ing] large resort and industrial enterprises to address related <br /> affordable housing needs as a condition of rezoning approvals, based upon current economic and housing <br /> conditions"). In Assn of Owners v. Honolulu, 7 Haw. App. 6Q 742 P.2d 974 (1987), the Intermediate Court of <br /> Appeals of Hawaii acknowledged the legitimacy of this interest in the context of the challenge to a condominium <br /> declaration, stating that "affordable housing and public parking for downtown Honolulu were important [o the <br /> welfare of the community." Id. at 78, 742 P.2d at 985. <br /> 18 I Land Use Law § 9.23. <br /> ~e 941 F.2d 872 (9th Cir. 1991). <br /> zo !d. at 873. <br /> 21 Id. at 875. <br /> 7 <br /> <br />