Authors respond.

• Author: Rothenberg, Mark A.
• Position: Letters - Letter to the editor

This letter responds to Jaimie Ross' October letter commenting on our article, "An Analysis of Affordable/ Workforce Housing Initiatives and Their Legality in the State of Florida," from the June and July/August issues of the Bar Journal. Our article analyzed the use of mandatory inclusionary zoning ordinances in the context of both federal and Florida law as they pertain to development exactions and impact fees. Notwithstanding the fact that we never argued that a Florida court must apply the Nollan/Dolan analysis to a mandatory inclusionary zoning program, Ms. Ross claims that all such challenges have failed and that mandatory programs fall firmly within the "mainstream of takings jurisprudence throughout the country." In support of her contention, Ms. Ross cites three cases from California. This hardly stands as the "mainstream of takings jurisprudence throughout the country."

Nevertheless, the authors did provide an analysis of the California decision cited by Ms. Ross--we actually devoted an entire section to it and acknowledged the issue of whether the Nollan/Dolan analysis applies outside of the adjudicatory development approval setting. However, as discussed, the court held that the mandatory inclusionary zoning ordinance at issue was not facially unconstitutional because the ordinance permitted the local government to waive the requirement. The California court did not address whether the ordinance would have survived an as-applied challenge, nor did it provide any other meaningful guidance in that regard.

Our article was concerned with the state of the law in Florida, and one issue raised was that even if the Nollan/ Dolan analysis does not apply to mandatory inclusionary zoning programs, Florida's dual rational nexus test would demand the same level of judicial review. Without providing any Florida authority other than a lower court case under review by the First District Court of Appeal, Ms. Ross asserts that a mandatory housing program is not an exaction or impact fee, but is merely a land use regulation which should not be subject to the dual rational nexus test.

The authors contend that a mandatory program requiring developers to construct additional units or pay a fee falls squarely within the purview of a tax or impact fee. Second, the lower court's decision merely held that the ordinance in question did not constitute a physical taking. The issue of whether the ordinance in question constituted a regulatory taking was not...