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Using the same logic adopted by the New Jersey courts and argued in Napa, in-lieu fees have usually been based on the dollar subsidy required to provide the same number of inclusionary units, at the same income levels, as would otherwise be constructed on the site. (In practice, most in-lieu fees have been set at a significantly lower amount than is actually needed to provide the same number of units.15) While this author has long been concerned that allowing an in-lieu fee alternative invites the courts to treat the entire inclusionary program as a development exaction rather than as a land use control (communities do not collect in-lieu fees as an alternative to setbacks and height limits), the California Supreme Court's approval of an art in public places fee provided at least some support for the concept that an in-lieu fee alternative would not automatically convert a zoning requirement to an exaction. In Ehrlich v. City of Culver City16 ("Ehrlich'), the Court reviewed a Culver City ordinance that required every development to include a piece of art equal to 1 percent of the building valuation or pay an equivalent fee to the City. The Court held unanimously that the fee was not a development exaction but rather an "aesthetic condition" akin to traditional land-use regulations such as setbacks, parking, lighting, and landscaping. While it might be questionable whether the Court would apply the same analysis to an inclusionary ordinance that restricts prices and rents and has no aesthetic component, the combination of Napa and the Ehrlich gave practitioners a fair amount of confidence in the strategy. The inclusionary requirement and alternative in-lieu fee established in Los Angeles' Central City West Specific Plan and challenged in Palmer was adopted as a land use control: it was based on a study showing high rates of poverty, a need for affordable housing in the Specific 1S See Non-Profit Housing Association of Northern California and California Coalition for Rural Housing, Inclusionary Housing in California: 30 Years of Innovation at 17 - 19(2003). 'h 12 Cal.4th 854, 885-86 (1996). The case is discussed in depth in Alan Seltzer's paper. 5 990051\I\720372.3 8/7/2009