Category Archives: Fees & Exactions

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GHG Allowance Auctions are Not a Tax; Key Element of State’s Cap-and-Trade Program Upheld

California Chamber of Commerce, et al. v. California Air Resources Board, et al., Case No. C075930 (Cal. Ct. App. 3d. Dist., 2017). On April 6, the California Court of Appeal for the Third District issued its long-awaited decision in the consolidated lawsuits challenging the greenhouse gas (“GHG”) emission allowance auctions, which are a key component … Continue Reading

Supreme Court Denies Certiorari in Challenge to San Jose’s Inclusionary Housing Ordinance; Justice Thomas Suggests The Issue is Far From Settled

California Building Industry Association, et al. v. City of San Jose, et al., (2016) On February 29, 2016, the Supreme Court of the United States denied the California Building Industry’s petition for writ of certiorari seeking review of the decision of the California Supreme Court in California Building Industry Assn. v. City of San Jose,(2015) … Continue Reading

California Supreme Court Upholds San Jose’s Inclusionary Housing Ordinance

In California Building Industry Association v. City of San Jose (Case No. S212072, filed June 15, 2015), the California Supreme Court upheld an inclusionary housing ordinance imposing affordable housing requirements as a valid exercise of a municipality’s police power, rather than an exaction subject to a constitutional takings analysis.… Continue Reading

The Supreme Court Gets It Right On Takings – And Wrong – A View from “Inside the Curtilage”: The Property Owner’s Perspective

Koontz v. St. Johns River Water Management District, No. 11-1447 (U.S. Supreme Court, June 25, 2013) In Koontz v. St. Johns River Water Management District, the Supreme Court cleared up two important, nagging issues with wide applicability and importance to property owners across the country. First, the 5-member majority, led by Justice Alito, held that … Continue Reading

Supreme Court Hands Major Win To Landowners

California already in line with decision; major impact expected in other states By a 5-4 vote, the conservative wing of the United State Supreme Court answered two big questions in favor of the landowner, changing the way local government can condition development permits across the country. In the Koontz case, a Florida water management district … Continue Reading

Bill Introduced to Restore Cities’ Ability to Require Affordable Housing

By Michael Hansen  On February 22, California State Assembly Member Toni Atkins, D-San Diego, introduced a bill, AB 1229, to restore the ability of California cities and counties to require affordable housing as part of market-rate housing developments. The bill would override a notable 2009 court decision, Palmer/Sixth Street Properties, L.P. v. City of Los … Continue Reading

Inclusionary Zoning: Superior Court Strikes Down City of San Jose’s “Inclusionary Housing” Ordinance

[California Building Industry Assn. v. City of San Jose, S212072. (H038563; 216 Cal.App.4th 1373).  Petition for review granted by the Supreme Court after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances … Continue Reading

“Pay Under Protest” Procedure for “Other Exactions” Is Not Applicable to All Development Exactions

Trinity Park, L.P., et al. v. City of Sunnyvale, 2011 WL 1054221, __ Cal.App.4th ___, (6th Dist. 2011) By Dave Lanferman A California appellate court has ruled that the "pay-or-perform under protest" procedures of Government Code sections 66020 and 66021 do not apply to all types of development exactions. In its opinion, the Sixth Appellate … Continue Reading

Mitigation Fee Act May Not Require Specific Identification of New Facilities

Home Builders Ass’n of Tulare/Kings Counties v. City of Lemoore, No. 07C0185 (5th Dist. June 9, 2010) By David Lanferman On June 9, 2010, a panel of the Court of Appeal for the Fifth Appellate District rejected challenges by a builders association to six out of seven "development fees" recently adopted by the City of … Continue Reading

General And Special Benefits Of Special Assessments Must Be Separated And Quantified

Beutz v. County of Riverside, No. RIC457351 (4th Dist. May 26, 2010) By David Lanferman & Michael Cato In Beutz v. County of Riverside, No. RIC457351 (4th Dist. May 26, 2010), the California Court of Appeal held that a special assessment imposed by the County of Riverside was invalid because the engineer’s report commissioned by … Continue Reading

Supreme Court Refuses to Hear Palmer Case – Are Inclusionary Zoning Practices Due for Change?

By James Pugh & Dave Lanferman On October 22, 2009, the California Supreme Court decided not to review the Court of Appeal’s decision in the landmark Palmer/Sixth Street Properties v. City of Los Angeles case. [See SMRH Blog 08/18/2009, for detailed discussion of Palmer decision.] This decision, although favorable for Palmer, could launch "inclusionary zoning" … Continue Reading

Administrative Fee for Tax Collection is an Unconstitutional Hidden Tax

Weisblat, et al., v. City of San Diego, ___ Cal. App. 4th ____ (Aug. 18, 2009, No. D052787) By Jeffrey W. Forrest and David P. Lanferman In 1997, in an attempt to clarify the sometimes blurry distinction between a government “fee” and a government “tax,” the California Supreme Court explained that “taxes are imposed for revenue purposes, rather than … Continue Reading

New Law Automatically Extends Existing Tentative Maps For Two Years, But Also Creates New Pitfalls, And Reduces Some Protections For Recorded Maps

By David P. Lanferman & Jeffrey W. Forrest On July 15, 2009, the Governor signed new "urgency" legislation to automatically extend the life of existing tentative subdivision maps, vesting tentative maps ("VTMs") and parcel maps for two additional years — provided that they were still valid and in effect on July 15, and would otherwise expire … Continue Reading

Appellate Court Decision Invalidating Unjustified “Affordable Housing In Lieu Fees” Is Now Final

BIACC v. City of Patterson (2009) 171 Cal.App.4th 886 By David P. Lanferman On June 17, 2009, the California Supreme Court denied the City of Patterson’s petition for review of the Court of Appeals decision invalidating the City of Patterson’s "affordable housing in lieu fees" and holding that the City violated a development agreement by … Continue Reading

Decision Overturning City’s “Affordable Housing in Lieu Fee” Ordered Published by Court of Appeal

Building Industry Association of Central California v. City of Patterson (2009) __ Cal App. 4th ____ By David P. Lanferman The Court of Appeal for the Fifth Appellate District certified its decision in Building Industry Association of Central California v. City of Patterson for publication on March 2, 2009. The court had previously issued an opinion … Continue Reading

Affordable Housing In Lieu Fees Must Be Shown To Be Reasonably Related, And Limited, To “Deleterious Impacts Of New Development” Like Other Development Fees

By David P. Lanferman “Affordable housing in lieu fees” imposed by the City of Patterson on new residential development projects were invalidated by the California Court of Appeal for the Fifth Appellate District, in an unpublished decision issued on January 30, 2008.  (Building Industry Association of Central California v. City of Patterson).  The court unanimously … Continue Reading

Supreme Court Raises The Bar: Holds Prop. 218 Requires Court To Exercise Independent Judgment Regarding Validity Of Assessments And Places Burden Of Proof On Assessing Agency

By Dave Lanferman Silicon Valley Taxpayers Ass’n v. Santa Clara County Open Space Authority (July 14, 2006, Case No. S136468) ___ Cal.4th ___. The California Supreme Court declared that Proposition 218 “changed the law governing assessments” in this unanimous decision issued on July 14, 2008, and applied the “new law” to invalidate assessments levied by … Continue Reading

New State Fees For Water Rights Permits and Licenses Unconstitutional Due To Failure To Demonstrate Reasonable “Proportionality” To Fee Payors

California Farm Bureau Federation et al. v. California State Water Resources Control Board, (January 17, 2007, C050289) __ Cal.App.4th__ http://www.courtinfo.ca.gov/opinions By David P. Lanferman and Ella Foley-Gannon The Court of Appeals for the Third Appellate District has declared that regulatory fee schedules adopted by the State Water Rights Control Board (“Board”) in 2003, imposing new … Continue Reading

California Supreme Court Permits Use Of Local Initiatives To Reduce Or Repeal Water Delivery Charges, But Such Initiatives May Not Require That Future Rate Increases Be Submitted For Voter Approval

Bighorn-Desert View Water Agency v. Verjil, (July 24, 2006, S127535) __ Cal.4th __ By Dave Lanferman and Misti Schmidt On July 24, the California Supreme Court unanimously held that the initiative power reserved to the voters by Article XIII C of the California Constitution permits use of an initiative to reduce or repeal water delivery … Continue Reading

Building Permit Fees: Considerations Raised by the Recent Cal. Supreme Court Decision in Barratt-American v. City of Rancho Cucamonga

By David P. Lanferman The recent decision of the California Supreme Court in Barratt-American v. City of Rancho Cucamonga(37 Cal.Rptr.3d 149) [covered in an earlier update on this site] raises serious questions as to the way many jurisdictions calculate, collect, and apply fees from developers for building permits and building inspections. Back in 1993, the … Continue Reading

Cal Supreme Court Illuminates the Path for Suing Local Entities Over Excessive Building Permit Fees

By David P. Lanferman In Barratt American, Inc. v. City of Rancho Cucamonga, the California Supreme Court clarified questions of procedure and potential remedies available in actions challenging building permit and inspection fees under the Mitigation Fee Act, California Government Code § 66000 et seq. (the “Act”). Appellant Barratt American had sued the City on … Continue Reading
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