Exactions, Impact Fees, Service Charges and Property Taxes

 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.

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

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. 

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

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.” 

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

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.

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

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.

Continue Reading 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

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.

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

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).

Continue Reading Finding the Special in Special Benefits after Proposition 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.

Continue Reading Water Conservation Does Not Trump Proportionality Requirement of Prop 218

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.

Continue Reading Fire Protection Assessments Fail Prop. 218 Challenge

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.

Continue Reading Now You Have a Secret, Now You Don’t. Secret Balloting and Proposition 218