Service Charges and Property Taxes

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

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 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.
Continue Reading Are the Days of Mitigating a Project’s Significant Impacts with Impact Fees Gone?

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 County 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 County 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 County 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

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.
Continue Reading 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
Citing the book “Exactions and Impact Fees in California”, 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 Appellate Court Cites Exactions and Impact Fees Book

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”).
Continue Reading California Supreme Court Schools CSU on Mitigation Infeasibility