Court Affirms Groundwater Augmentation Charge Exempt From Proposition 218 As A Water Service Charge

 By William W. Abbott

Griffith v. Pajaro Valley Water Mgt. Agency (October 14, 2013) ___ Cal.App.4th ___. 

The long saga of the groundwater augmentation strategy for Pajaro Valley in Santa Cruz County has reached its next, and possibly final stopping point. The underlying saga is a telltale forecast of what lies ahead for California, with the inevitable conflicts generated by resource allocation and management. In Griffith, the specific conflict stems from the intersection of groundwater management strategies designed in part to better manage water resources and to reduce saltwater intrusion with the citizen rights created by Proposition 218.

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School District Failed to Document Justification For Applying Full School Fees to Demolition of and Development of a Multi-family Project

By William W. Abbott

As developers pursue infill or re-use opportunities, a predictable question regarding impact fees will arise: To what extent is the developer entitled to a credit for the existing uses onsite which ultimately are displaced by a new project? At least in the case of school facilities, we know from the recent decision in Cresta Bella, LP v. Poway Unified School District (July 31, 2013, D060789) ___ Cal.App.4th ___,that the burden is on the agency to justify the fee, and in the absence of sufficient justification, that the developer may be entitled to a fee refund. 

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The U.S. Supreme Court's Nollan/Dolan Jurisprudence Is Catching Up With The California Supreme Court in Ehrlich v. Culver City

By Glen C. Hansen

For nearly twenty years, Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions have been governed by the dual Supreme Court cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan, the Court held that a government could, without paying the compensation, demand the easement as a condition for granting a development permit the government was entitled to deny, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. The Court further refined that requirement in Dolan, holding that an adjudicative exaction requiring dedication of private property must also be “‘roughly proportional’ . . . both in nature and extent to the impact of the proposed development.” However, Nollan and Dolan involved the dedication of real property interests. In Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013), the Court held in a 5-4 decision that “the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.” 

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Appellate Court Reverses Trial Court Invalidation Of Local Inclusionary Ordinance; Remanded For Further Review

By William W. Abbott

In California Building Industry Assn. v. City of San Jose (June 6, 2013, H038563) ___ Cal.App.4th ___, the City of San Jose adopted an inclusionary ordinance, requiring that new residential projects include units affordable to specified income ranges. Alternatively, the ordinance permitted the developer to pay an in lieu fee or dedicate land. The California Building Industry Association (“CBIA”) filed suit, challenging the validity of the ordinance on its face on the basis that the ordinance lacked any nexus to the deleterious effects of new residential development. CBIA did not allege that a compensable takings had occurred, but rather argued that the City lacked sufficient justification for the ordinance. The trial court agreed with CBIA and invalidated the ordinance. The City appealed.

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10 Cent Per Bag Charge Included as Part of An Ordinance Encouraging Use of Recyclable Grocery Bags Was Not Subject to Proposition 26

By William W. Abbott

Schmeer v. County of Los Angeles (February 2, 2013, B240592) ___Cal.App.4th ___. The County of Los Angeles enacted an ordinance prohibiting retail stores from providing plastic carryout bags and requiring the stores to charge customers 10 cents for each paper bag provided. Among other provisions, the ordinance provided that the money received by the store for recyclable paper carryout bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or other costs of promoting the use of reusable bags.

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Property Owner Fails to Establish Basis For Maintaining Older Property Tax Assessment Following Property Transfer

By William W. Abbott

Duea v. County of San Diego (2012) 204 Cal.App.4th 691

Proposition 13 changed the property tax rules in California in 1978. One of its many key features was the rolling back of the taxes, and limiting annual increases. A change in ownership was treated as a triggering event for purposes of establishing property valuation, and in turn, the recalculated property tax liability. Overtime, one of the important considerations in applying tax liability was whether a transfer took place. Subsequent to Proposition 13, the Legislature enacted legislation for purposes of defining certain transfers as not constituting a triggering event. Exemptions include acquisition through eminent domain, acquisition by a public entity, or governmental action resulting in a judgment of inverse condemnation.

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Finding the Special in Special Benefits after Proposition 218

By William W. Abbott

Recent polls suggest that Proposition XIII remains as popular today as when it was enacted. Yet, at the same time, residents demand a high level of services which exceed the ability of local officials to fund absent innovation in developing new funding strategies. This innovation in turn has generated a series of voter enacted limitations designed to further restrict new revenue measures, absent voter approval. Part of this voter legacy is Proposition 218, enacted in 1996 (California Constitution Art XIIID).

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Water Conservation Does Not Trump Proportionality Requirement of Prop 218

By Cori Badgley

In City of Palmdale v. Palmdale Water District (Aug. 9, 2011, B224869) __ Cal.App.4th __, the appellate court confronted two constitutional mandates that were seemingly at odds with one another. The first constitutional mandate was Proposition 218, requiring that water service fees not exceed the proportional cost of providing the service. The second was Article X section 2 and the statutes adopted thereunder permitting allocation-based conservation water pricing whereby the price increases dramatically once a user surpasses the allocation amount. In the end, the court found that these two provisions could be harmonized because there could still be much higher fees imposed above a certain allocated amount that did not exceed the proportional cost of providing the service.

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Fire Protection Assessments Fail Prop. 218 Challenge

By William W. Abbott

A new decision from the Third Appellate District illustrates that the drafters and voters in favor of Proposition 218 achieved what they were after: further restrictions on the ability of public agencies to raise new revenue irrespective of the salutary purposes or modesty of the imposition. The case involves a fire protection assessment approved by 61.8% of the vote cast in a 218 election proceeding.Concerned Citizens for Responsible Government v. West Point Fire Protection District (2011) 196 Cal.App. 4th 1427.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Now You Have a Secret, Now You Don't. Secret Balloting and Proposition 218

By William W. Abbott 

The California Supreme Court, in a unanimous decision, reversed the First Appellate District and upheld a trial court’s decision rejecting a challenge to overturn a Proposition 218 election. In Ford Greene v. Marin County Flood Control and Water Conservation District (June 7, 2010) 49 Cal.4th 277, the basis of the challenge was whether or not the district conducting the election had maintained the requisite level of voting secrecy.

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Court Affirms Range of City Impact Fees Based Upon a General Description of Facilities; Puts Out the Flame for Fire Impact Fees

By William W. Abbott

In 1986, the Legislature enacted the Mitigation Fee Act (“MFA”) (Government Code section 66000 et seq.) Supported by the building industry, this legislation was thought to operate as a limitation on the enactment of impact fees by local government, a practice which was gaining in momentum following the voter enacted Proposition 13 and the resulting chaos in local government funding. By providing express statutory recognition for impact fees, the Mitigation Fee Act, in this author’s opinion, inadvertently led to the significant expansion in the world of impact fees rather then operating as a brake. To the extent that a city or county was sitting on the fence as to whether or not it could adopt impact fees, that question was now clearly answered by the MFA. The result has been the widespread adoption of fees, with the creative juices of consultants testing the limits of what can be funded through fees (e.g. bullet proof vests for public safety staff.)

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The Fight Over Property Taxes Continues: School District Entitled to Larger Share of Property Tax Increment

By Cori Badgley

Los Angeles Unified School District v. County of Los Angeles (2010) __ Cal.App.4th __ involved a tug-of-war between a county and a school district over a share of the property tax increment distributed by redevelopment agencies. In the wake of Proposition 13, property tax revenues are limited and their allocation is coveted by local government, special districts and school districts. Under redevelopment law, redevelopment agencies must give a portion of the incremental increase in property tax revenues to local entities, including schools, based on the percentage of property tax revenue received by the entity in that fiscal year. In this case, the Los Angeles Unified School District argued that it was entitled to a larger share of the property tax increment than it had been allocated because defendants, which included multiple redevelopment agencies, the County of Los Angeles and the City of Los Angeles (collectively “county”), failed to take certain property taxes received by the school district into account. The trial court disagreed with the school district, and the appellate court reversed.

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Prop. 218 Proportionality Rule Relates to Special Benefits, Not Construction Costs

By Cori Badgley

Under Proposition 218 (Cal. Const. art. XIII D), special assessments shall not “exceed the reasonable cost of the proportional special benefit conferred on a parcel.” The courts have divided this into two general inquiries: 1) is a special benefit conferred by the improvement to be built through the assessment?; and 2) is the assessment proportional? In Town of Tiburon v. Bonander (2009)180 Cal.App.4th 1057, the court answered yes to the first question, but found that the division of costs was not proportional under Proposition 218.

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Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

It's the Type of Fee that Makes All the Difference: Regulatory Fee Upheld by Court of Appeal

By Cori Badgley

There are many different types of fees, taxes and assessments that a local agency may impose. For each type, there are specific procedures and requirements, and if the agency does not use the correct procedure and meet the correct requirements, a court may invalidate the fee. In California Building Industry Association v. San Joaquin Valley Air Pollution Control District (2009) 178 Cal.App.4th 120, the agency got it right, and the court held that the agency’s indirect source review fees were valid regulatory fees.

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CEQA: 2009 Year in Review

This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.

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"What is the Difference between a Taxidermist and a Tax Collector? The Taxidermist Takes Only Your Skin."

By William W. Abbott

Well, Mark Twain got that right. Beginning with the voter approval in 1978 of Proposition 13, California voters and public agencies have been at odds with each other over local government revenue strategies.  The dilemma for local government being of course, that residents demand high level of services but expect someone else to pay for it. Walking the fine line between service delivery and voter enacted limitations on revenue streams, local agencies continuously explore and implement new strategies to capture new revenue streams, and over time, the trend has been to link charges to services provided. In the most recent levy case, the City of San Diego attempted to forge new territory by charging a processing fee for the purpose of offsetting costs associated with sending tax bills. In other words, a processing fee imposed on top of, and for the purpose of, collecting a general tax collected from property owners.

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The Golden Rule of Assessments: The Levy Cannot Exceed Reasonable Cost of Proportional Special Benefit

By Cori Badgley

In 2008, the California Supreme Court held that the proper standard of review in deciding whether assessments imposed by local agencies violate Article XIII D of the California Constitution is de novo. (Silicon Valley Taxpayers’ Association, Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 (“SVTA”); see California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218.)  The Court also held that the local agency has the burden of proof.  (Id.)  In light of the holding in SVTA, the Court of Appeal, Second Appellate District reevaluated its decision to uphold the creation of a special assessment district by the City of Pomona.  Although the court applied the de novo standard of review instead of substantial evidence, the court still found that the assessments imposed by the City of Pomona through the creation of the Downtown Pomona Property and Business Improvement District (“PBID”) did not violate Article XIII D of the California Constitution.

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Simple Math Does Not Amount to Reasonable Justification for Fee Amount

By Cori Badgley

In interpreting the provision of a development agreement imposing an in-lieu affordable housing fee, the court in Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886 enunciated two important rulings: 1) development agreements are interpreted under contract law, and 2) an in-lieu affordable housing fee is not reasonably justified if the fee is simply based on the amount of housing allocated to the jurisdiction under the regional housing need assessment.

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Are the Days of Mitigating a Project's Significant Impacts with Impact Fees Gone?

By Katherine J. Hart

In California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, the California Native Plant Society (“Society”) filed a CEQA lawsuit against El Dorado County (“County”) after the County approved a Mitigated Negative Declaration (“MND”) and Congregate Care Project (“Project”).  The Project consists of two care units, cottages, and a clubhouse on 20 acres, and was part of a larger development area including a local medical center, a senior assisted living facility, medical office buildings and a local retail shopping center.

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Before Challenging Sewer Service Charges in Court, Thou Shall First Protest

By Cori Badgley

In Los Altos Golf and Country Club v. County of Santa Clara (June 30, 2008) 2008 Cal.App.Lexis 1149, plaintiffs brought a class action demanding a refund from the City of Los Altos of sewer service charges paid by plaintiffs on the grounds that the fees violated Article XIII D of the California Constitution and the Health and Safety Code. Instead of allowing plaintiffs to make any substantive arguments, the City and the County ("Respondents") claimed that the case should be dismissed because the plaintiffs had failed to pay the fees under protest, as required by the Health and Safety Code. The Court of Appeal, Sixth Appellate District agreed with the Respondents and dismissed the case. Sewer service charges must first be paid under protest in order to later request a refund.

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California Supreme Court Rules Open Space Assessment is Invalid Special Tax Under Proposition 218

By Cori Badgley

Generally, when a plaintiff challenges the action of a government agency, the plaintiff has the burden to overcome the presumption that the government agency acted lawfully. In regards to special assessments falling within the protections of Proposition 218, the burden shifts. When a plaintiff challenges a special assessment, the government agency has the burden to prove that it acted lawfully, and the court reviews the agency’s decision de novo.

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The Authors of "Exactions and Impact Fees in California" Want Your Suggestions

The authors of the Solano Press publication Exactions and Impact Fees in California are currently revising the 2001 version of the book and welcome suggestions for material to include in this updated edition.  Suggestions may be emailed to wabbott@aklandlaw.com.

Additionally, the 2007 supplement for the book is available for free here.

2007 Supplement to Exactions and Impact Fees in California

The authors of the Solano Press publication Exactions and Impact Fees in California have prepared a 2007 supplement to the book.  That supplement can be downloaded here

Rough Road Ahead: Whose responsibility is it to perform a nexus study for mitigation fees for local project impacts to state highways?

By William W. Abbott

One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression--namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
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Appellate Court Cites Exactions and Impact Fees Book

By William W. Abbott

Citing "Exactions and Impact Fees in California" [1], the Third Appellate District ruled that the Subdivision Map Act (Gov. Code, §§ 66410 et seq.) 90-day statute of limitations trumped the longer Mitigation Fee Act (Gov. Code, §§ 66000 et seq.) timeline when reviewing a legal challenge to a subdivision map denial by the City of Chico. The case is Thomas Fogarty v. City of Chico (March 12, 2007) 2007 Cal.App.Lexis 339. Continue Reading...

California Supreme Court Schools CSU on Mitigation Infeasibility

By William W. Abbott & Janell M. Bogue

Closely following on the heels of County of San Diego, the California Supreme Court decided City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, which also involved issues of the appropriateness of mitigation expenditures, this time by the California State University system. Here, the state university (CSU) assumed the legal position that it was not authorized to mitigate for offsite impacts, and on that basis, the Trustees rejected the feasibility of mitigation measures sought by a local city (Marina) and a base reuse authority (Fort Ord Reuse Authority or "FORA").

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Impact Fee Programs as Effective Tools for CEQA Mitigation: An Update

by William W. Abbott and Janell M. Bogue

Properly administered impact fee programs can operate to streamline CEQA review of later development projects. At the same time, impact fee programs which are not implemented in accordance with the original expectations or which are founded upon unrealistic assumptions may offer the lead agency and affected applicant little or no real relief. Significant cases decided over the last five years illustrate how this can play out.

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California Supreme Court Rules that Water Connection Fees for New Connections not Subject to Proposition 218's Voter Approval Requirement

by Robert T. Yamachika

Richmond v. Shasta Community Services District (2004) 32 Cal.4th 409

The issue in this case was whether a water district's increase of its two component water connection fees violated Proposition 218's voter approval requirement. Proposition 218, the Right to Vote on Taxes Act, was approved by California voters in 1996 and added articles XIIIC and XIIID to the California Constitution. The Shasta Community Services District ("SCSD") operates a water system for residential and commercial users and a volunteer fire department that provides fire suppression and emergency services.

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Exactions: Dedications and Development Fees Update

by William W. Abbott and Robert T. Yamachika

This article summarizes recent case law addressing dedications and development fees.

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Storm Drainage Fees are Property-Related Fees Subject to Proposition 218 Requirements

by Diane G. Kindermann and Robert T. Yamachika

In a recent Proposition 218 case, Howard Jarvis Taxpayers Association v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal for the Sixth Appellate District held that a "storm water drainage fee" was illegally imposed by the City of Salinas. The plaintiff, Howard Jarvis Taxpayers Association ("HJTA") contended that the storm drainage fee imposed by the City of Salinas was a "property-related" fee requiring voter approval. HJTA's arguments were based on Proposition 218, the "Right to Vote on Taxes Act," which was passed by the California voters in 1996. Proposition 218 added article XIII D, section 6(c) to the California Constitution, requiring notice for a public hearing and a vote for a proposed property-related fee or charge. If a majority of the affected property owners or two-thirds of the electorate in the affected area do not approve the fee, it may not be imposed.

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