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• Nexus studies are expensive. <br /> Nonetheless, the relative simplicity of the exactions approach (see discussion below) and <br /> its ability to resolve both Patterson (by showing that the fee is related to the deleterious impact <br /> of the project) and Palmer (by replacing a requirement for on-site units with an impact fee) may <br /> make this the majority approach. <br /> C. Inclusionary Ordinances as Rent or Price Control <br /> A potential conflict between inclusionary zoning and rent control statutes — in particular, <br /> the Costa-Hawkins Act27 — has been recognized for some time.28 As early as 1998, a lawsuit <br /> claiming a conflict between inclusionary requirements and the State Costa-Hawkins Act was <br /> filed against the City of Santa Monica and settled by the City.29 Nonetheless, based on the court <br /> decisions in New Jersey and the legislative history of the Costa-Hawkins Ac:, there was some <br /> hope that the California courts would agree that inclusionary controls on rents did not constitute <br /> rent control. <br /> Conflicts with State Statutes Regulating Rent Control. Rationales presented for <br /> distinguishing inclusionary ordinances from rent control statutes include inclusionary zoning's <br /> remedial character as a response to exclusionary zoning; its application to a small portion of new <br /> development only rather than to existing apartments; its inclusion of both rental and ownership <br /> serving activities such as supermarkets. An alternative nexus theory, more difficult to quantify, is that market-rate <br /> projects use up land that would otherwise be available for affordable housing. In a case iivolving commercial <br /> linkage fees, the Ninth Circuit discussed the "indirectness of the connection between the creation of new jobs and <br /> the need for low-income housing," but ultimately concluded that the fees bore a "rational relationship to a public <br /> cost closely associated with" new development. Commercial Builders of Northern California City of Sacramento, <br /> 941 F.2d 872, 874-76(91h Cir. 1991). <br /> 27 Civil Code Sections 1954.51 — 1954.535. <br /> 28 See California Affordable Housing Law Project& Western Center on Law& Poverty,Inclusionary Zoning: Legal <br /> Issues at 24-29 (December 2002) (hereinafter "Legal Issues"); Kautz, supra note 4, at 1015-17; Nadia El Mallakh, <br /> Does the Costa-Hawkins Act Prohibit Local Inclusionary Zoning Programs? 89 Cal. L.Rev. 1847(2001). <br /> 29 See Mallakh, id, at 1851. <br /> 10 <br /> 990051A1A720372.3 <br /> 8/7/2009 <br />