Exactions, Impact Fees, Service Charges and Property Taxes

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

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.)

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

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.

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

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.

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

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.

Continue Reading “What is the Difference between a Taxidermist and a Tax Collector? The Taxidermist Takes Only Your Skin.”

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.

Continue Reading Simple Math Does Not Amount to Reasonable Justification for Fee Amount

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.

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

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.

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