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SENA' BY: 5- 1- 0 ; 4:32PM ; BEST BEST & KRIEGER- 9093705154;# 4/ 6 California CityiAttomeys Page 3 Moreover, even those cities without inclusionary ordinances will be affected by the Outcome of this case. The Home Builders' and PUN argument concerning the applicability of heightened, scrµti' under Nollan/Dolan to this police power zoning ordinance requirement imperils not only ;inclusionary ordinances, but land use and other police power ordinances as well. If the plainjtiff is successful in persuading a court to accept heightened scrutiny as the applicable standard, cities' ability to exercise basic police power regulatory authority will be severely diminished. Plaintiff's other theories are of similar concern to cities. For example, the assertion that the inclusionary in: lieu fee, which under virtually all inclusionary ordinances is not mandatory at all, but rather one of many development options, may be challenged as a tax under Propositions 13, 62 and 215; t1 eatens to undermine cities' ability t? impose mitigation fees to defray impacts created by new development. So too does the ass"On that such ordinances are subject to a "staturory heightened scrutiny" under the Mitigation Fie Act. I have discussed this ;natter with the proposed �cj1,q brief writer, Dick Judd of Goldfarb & Lipman, and Andrew Schwartz, the San Francisco Deputy City Attorney (and takings expert) assigned by the Lugol Advocacy Committec to supcTvise the amiclin effort. We propose the following issues would benefit from analysis in an amus brief 1. The history of the affordable housing 41518 in California, the pressure exerted by State law on cities and counties to address this crisis; the use of inclusionary ordinances statewide to address such problems; and the benefits ar d successes of such programs; 2. Flow the Home BwlderVPLF takings [and due process, theories threaten basic principles of separation of powers by improperly inviting courts to second guess the wisdom of basic legislative determinations on land use issues reserved to local legislative bodies; 3. Whj plaintiffs' heightened scrutiny theory fails, and why the ordinance withstands thecr�#tiny instead under deferential ratio l basis standards, pursuant to lch and Santa Monica I�a��; and 4. That in fact the Court should take this � pportunity to clarify that the decisions in Fbrlich and Santa Monica Reach do not authorize coo is to use taking analysis to test how well government's chosen means serve its ends, and that, paang references in those cases which may imply differently should not be relied on.