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County of Hawaii, County Council Page z Affordable Housing Requirements for Industrial Developments Proposed Bill >l56 Bill 156 proposes to amend Chapter 11 of the Hawaii County Code to require that industrial uses fulfill certain affordable housing requirements. Specifically, the bill proposes that "industrial enterprises generating more than one hundred employees on a full-time equivalent basis, whether new or an addition or reconstruction to existing facilities, and including one or more businesses at the same or adjacent sites, must earn one affordable housing credit for every four full-time equivalent jobs created." Bill 156 is not based on any detailed studies or facts, but is based merely on the following conclusionary statements: • "The Housing Element of the Hawaii County General Plan (enacted as ordinance No. 05-25) clearly states that a policy of the County of Hawaii shall be that `large industries or developments that create a demand for housing shall provide employee housing based upon a ratio to be determined by an analysis of the locality's needs."' • "The County Council finds that industrial developments which are comprised of multiple individual enterprises are, in fact, large industries which generate substantial employment and demands for employee housing. Therefore, such industrial developments should be subject to the affordable housing requirements articulated in Chapter a (Housing) of the Hawaii County Code." Proposed Bill ><S6 is in Violation of the U.S. Constitution Bill 156 is unconstitutional, because it does not satisfy the legal requirements to impose such affordable housing exactions on industrial uses and developments. The U.S. Supreme Court has ruled that laws imposing mandatory affordable housing requirements or "linkage fees" in lieu of housing are unconstitutional, unless they pass the following two basic takings tests: • "Essential Nexus" Takings Test. The affordable housing exactions or linkage fees proposed in Bill 156 are unconstitutional, unless the Council proves, through a detailed study, that industrial park developments have a substantial connection to and contribute to the housing problem that the exactions or linkage fees are intended to remedy. The Council has the burden of providing a detailed study including the facts and evidence to satisfy the "Essential Nexus" test. Nollan u. California Coastal Commission, 483 U.S. 8z5, 837 (1987); See Commercial Builders of N. Cal. u. Sacramento, 941 Fed 872, 874 (9th Cir. 1991); and Dolan u. City of Tigard, 512 U.S. 374, 391 n.8 (citing Nollan) (1994)• • "Constitutional Proportionality Nexus" Test. Bill lg6's affordable housing exaction of "one affordable housing credit for every four full-time equivalent jobs created," is also unconstitutional, because it is not supported by a detailed study. The required study must confirm that Hawaii County has done sufficient affordable housing planning and it must also address the lack of affordable housing at a level proportionate to each industrial development to determine a reasonable percentage for the affordable housing exaction or linkage fees. Dolan at 391(1994)•