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exactions. Since the California Supreme Court has limited Nollan/Dolan to exactions required on <br /> an individualized basis as a condition for development,22 and the inclusionary requirements <br /> being challenged were generally applicable legislative enactments, the Court of Appeal <br /> consistently rejected the effort to apply Nollan/Dolan. <br /> In Patterson, however, the Court of Appeal instead applied the more deferential <br /> "reasonable relationship" test to an inclusionary in-lieu fee, assuming that it was a generally <br /> applicable impact fee and without ever considering (at least in the published opinion) whether <br /> the underlying requirement was an exaction or a land use requirement. There are many odd facts <br /> about Patterson that have led practitioners to believe that it could be distinguished from most <br /> inclusionary in-lieu fees in a properly briefed case: the case arose in the context of interpreting a <br /> development agreement that required fees to be "reasonably justified;" the fee was calculated <br /> based on the cost of subsidizing the City's entire regional housing need, not just the affordable <br /> housing that would otherwise have been included in the project; the argument was apparently <br /> never made that basic inclusionary requirement was similar to the art in public places <br /> requirement reviewed in Ehrlich.23 Nonetheless, the language in Patterson characterizes the in- <br /> lieu fee as not substantively different from an affordable housing fee reviewed in San Remo <br /> Hotel v. City and County of San Francisco ("San Remo')24 and subject to the requirement that <br /> there be a reasonable relationship between the amount of the fee and the "deleterious public <br /> impact of the development." The San Remo fee in fact was an impact fee: it was intended to <br /> mitigate the impact on the City's affordable housing supply caused by the conversion of <br /> residential hotels to tourist hotels. However, because the language in Patterson characterizes an <br /> 22 See Santa Monica Beach, Ltd. v. Superior Court(1999) 19 Cal.4th 952,966-67. <br /> 21 However,this author has not reviewed the Patterson briefs. <br /> 24 27 Ca1.4"'643,670-71 (2002). <br /> 8 <br /> 990051A 1 A720372.3 <br /> 8/7/2009 <br />