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Supreme Court will accept review and engage in a far more robust analysis of the underlying issues than occurred in Palmer. H. The Characterization of Inclusionary Ordinances Since the first inclusionary ordinances were adopted in the early 1970s, legal analysts have variously characterized the ordinances as run-of-the-mill land use controls (like zoning ordinances), as rent and price controls, and as "exactions" more akin to impact fees and land dedications.' Nationally, courts have taken all three positions. The Palmer case is the first where a California court has taken a definitive position (although still leaving unresolved the issue of whether the base inclusionary requirement is a land use control or an exaction). A. Inclusionary Ordinances as Land Use Controls. From a city standpoint, it is most advantageous if inclusionary ordinances can be characterized as land use controls. As land use ordinances, they can then be enacted pursuant to ordinary state zoning legislation, and courts will apply the deferential rational basis test for local See Thomas Kleven, Inclusionary Ordinances - Policy and Legal Issues in Requiring Private Developers to Build Low Cost Housing, 21 UCLA L. Rev. /432, 1490 (1974). See also Barbara Ehrlich Kautz, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 USF L.Rev. 971, 975 (2002); Fred P. Bosselman et al., Panel Comments, in Inclusionary Zoning Moves Downtown 41-54 (Dwight Merriam et al. eds., 1985); Daniel R. Mandelker, The Constitutionality of Inclusionary Zoning: An Overview, in Inclusionary Zoning Moves Downtown 31, 35-36; William W. Merrill III & Robert K. Lincoln, Linkage Fees and Fair Share Regulations: Law and Method,25 Urb. Law. 223. 274 (1993). Many commentators simply assume that inclusionary housing is an exaction. See Mark Fenster, Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity, 92 Calif L. Rev. 609, 657 (2004); Lawrence Berger, Inclusionary Zoning Devices as Takings: The Legacy of the Mount Laurel Cases, 70 Neb. L. Rev. 186, 221 (1991); Brian W. I3laesser, Inclusionary Housing: There's a Better Way, Inclusionary Zoning: Lessons learned in Massachusetts,2 NHC Affordable Housing Pol'y Rev. 14, 15 (Jan. 2002); Susan M. Denbo, Development Exactions: A New Way to Fund State and Local Government Infrastructure Improvements and Affordable Housing, 23 Real Estate L.J. 7, 11 (1994); Robert C. Ellickson,The Irony of"Inclusionary"Zoning, 54 S. Cal. L. Rev. 1167, 1211 (1981). One recent author assumes that inclusionary zoning is a price control. See Benjamin Powell & Edward Stringham, "The Economics of Inclusionary Housing Reclaimed:"How Effective Are Price Controls?. 33 Fla. St. U. L. Rev.671, 672 (2005). 2 990051A1 A720372.3 8/7/2009