COM 0200.051 2006-2008 - Laserfiche WebLink

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satisfy the legal requirements to impose such affordable housing exactions on industrial park 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 first satisfy the following two basic takings tests: • "Essential Nexus" Takings Test. The affordable housing exactions or linkage fees in Bill 156 are unconstitutional, unless the Council proves, through an unbiased and 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 and County have the burden of providing an unbiased and detailed study including the facts and evidence to satisfy the "Essential Nexus" test. Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987); See Commercial Builders of N. Cal. v. Sacramento, 941 F2d 872, 874 (9"' Cir. 1991); and Dolan v. City of Tigard, 512 U.S. 374, 391 n.8 (citing Nollan) (1994). • "Rough Proportionality Nexus" Test. Bill 156 is also unconstitutional, because it is not supported by an unbiased and detailed study confirming that the requirements are fair, equitable and proportionate under the circumstances. The required study must confirm that government agencies have done sufficient affordable housing planning and it must also address the lack of affordable housing at a level proportionate to each light industrial development to determine a reasonable percentage for the affordable housing exaction or linkage fees. Dolan at 391 (1994). In prior LURF testimony in opposition to Bill 156, we submitted a legal memorandum prepared by land use expert, Professor David Callies of the William S. Richardson School of Law, addressing the Kauai County Council during their deliberation of affordable housing requirements for residential developments of five or more dwelling units and "large" resort commercial and industrial developments. The following is an excerpt from Professor Callies' memorandum, which explains that in order to legally justify imposing affordable housing exactions on landowners and developers, the government must first perform thorough and detailed studies to establish both a rational nexus and a proportional nexus between the projects and the demand for affordable housing: `;4s to housing exactions orset-asides on commercial development, the principle -indeed virtually only- federal case approving such set-asides did so only after the local government requiring such set-asides engaged in thorough and detailed studies of the workforce jobs required and generated by the proposed commercial development, which requirements were then cut in half -far less than the 40% which the draft County of Kauai Housing Policy Ordinance would require of such commercial development."