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in-lieu fee as an impact fee, any community that wishes to continue to characterize its in-lieu fee <br /> as a land use control akin to the Ehrlich art in public places fee will need to be prepared to <br /> defend their fees against a challenge that their analysis does not comport with the language in <br /> Patterson, nor is it like the impact fee that was reviewed in San Remo. Developers have viewed <br /> Patterson as a significant victory. ("[T]he Patterson decision provides a powerful new tool for <br /> developers to use in challenging affordable housing in lieu fees...cities or counties must show <br /> that the fees are reasonably related to impacts being created by the new market rate <br /> development.i25). <br /> The effort by the building industry to characterize inclusionary ordinances as exactions <br /> has been known for years, yet few communities have completed nexus studies to support their <br /> inclusionary and in-lieu fee requirements. In retrospect, this seems surprising, since cities are <br /> familiar with the procedural requirements for impact fees and exactions and this may be a"safer" <br /> alternative. There are several explanations: <br /> • Affordable housing advocates have disfavored nexus studies because they often <br /> result in reduced affordable housing requirements, especially in less wealthy <br /> communities. (In general, the wealthier the community, the higher percentage of <br /> affordable housing that can be justified.) <br /> • The methodology for completing these studies is not as developed as that for, say, <br /> traffic impact fees.26 <br /> 25 Cox Castle Nicholson, "Court Holds that Affordable Housing In Lieu Fees Must be Reasonably Related to the <br /> 'Deleterious Impact'Caused by New Market Rate Housing"(March 3,2009). <br /> 26 Nexus studies typically show that the construction of market-rate housing contributes to the need for affordable <br /> housing by increasing household spending in a community and so creating low-wage jobs—the kind of job creation <br /> that redevelopment plans anticipate when they facilitate downtown housing in order to create a market for local- <br /> 9 <br /> 990051A1 A720372.3 <br /> 8/7/2009 <br />