Undoubtedly, development impact fees (DIFs)[1] can make or break the pro forma of any development project. Until this month, developers hoping to challenge the assessment of project-related DIFs were often limited in the causes of action that could be brought. For instance, in California, a DIF may be challenged under the Mitigation Fee Act (Govt. Code §§ 66000 et seq.), and only DIFs that were “imposed neither generally nor ministerially, but on an individual and discretionary basis” could invoke the Takings Clause embedded in the Fifth Amendment of the United States Constitution.[2] This limitation on developers’ ability to utilize the Takings Clause meant that courts would not apply the “Nollan/Dolan test” to DIFs generally applicable to a broad class of property owners pursuant to legislative action.[3]Continue Reading What the Sheetz: Where California Development Impact Fees Stand Following Recent Supreme Court Decision

According to the Public Policy Institute of California, a non-profit, non-partisan think tank, California is facing a jaw-dropping 3.5 million unit housing deficient for the current population. This despite several legislative sessions enacting a large number of bills aimed at boosting housing production. 2023 was no different. During its first year of the current 2-year legislative cycle, Governor Newsom signed an unprecedented 56 housing bills into law, reflecting the California Legislature’s continued effort to respond to the housing crisis, and the multi-dimensional approach to developing, retaining, and permitting housing options for Californians. In sum, the housing bills intend to incentivize and reduce barriers to housing production, especially “affordable” or below-market rate housing by addressing previously-identified hurdles in the market. To do so, some bills include further expansion of State Density Bonus Law, including Senate Bill (SB) 423’s extension of the sunset date in 2017’s SB 35. The package also includes bills aimed to keep tenants in their existing homes and reflects the state’s desire to limit local governments’ ability to deny housing projects.Continue Reading California Continues Trend of Pushing Housing Legislation to Address Ongoing Housing Shortage

In Alliance for Responsible Planning v. Taylor, the Third District Court of Appeal recently struck down a voter initiative requiring a developer to fund all cumulative traffic mitigation as a condition precedent to project approval as an unconstitutional taking.  More specifically, the Court found that El Dorado County’s Measure E, which was adopted in 2016 and amended the County of El Dorado general plan (General Plan) to require developers to fund traffic improvements prior to the issuance of discretionary approvals needed to develop the remainder of the project, would require a development pay more than its fair share.
Continue Reading Mandate to Provide Traffic Improvements Prior to Project Approval Struck Down

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  However, this may soon change due to the Supreme Court’s recent order granting a hearing in Cedar Point Nursery et. al. v. Hassid where the issue presented is:
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property

At the end of June, in Hill RHF Housing Partners, L.P. v. City of Los Angeles, the Court of Appeal upheld the trial court’s denial of a challenge to the City of Los Angeles’s June 2017 establishment of the Downtown Center Business Improvement District (DCBID) and the San Pedro Historic Waterfront Business Improvement District (SPBID) (collectively, the LA BIDs), on the ground that the petitioners failed to exhaust administrative remedies – a jurisdictional prerequisite before seeking judicial review.  While the requirement for petitioners to exhaust administrative remedies is not new, Hills RHF Housing Partners, L.P. applied this well-established doctrine to a more nuanced set of laws applicable to the establishment of a business improvement district (BID).
Continue Reading Court of Appeal Rejects Challenge to LA’s Business Improvement Districts on Procedural Ground

In Tanimura & Antle Fresh Foods, Inc. v. Salinas Union High School District, the Sixth District Court of Appeal considered whether the Salinas Union High School District (“District”) acted reasonably in imposing a school impact fee on a new 100-unit residential development intended to only house adult seasonal farmworkers without dependents (the “Project”) employed by Tanimura & Antle Fresh Foods (“T&A”). After reviewing the relevant statutory schemes, the Legislature’s intent, and the District’s evidence for imposing the fee, the court found that the District properly determined a reasonable relationship existed between the fee and the new residential construction, even though the development would not generate any new students. Therefore, the District did not act arbitrarily by imposing the fee on the Project. In holding so, the court reversed the trial court judgment.

This decision reinforces the concept that, while school districts must demonstrate a nexus – or reasonable relationship – between development fees and the type of development, such as residential units, they generally are not required to evaluate the ultimate user of a particular development project before imposing district-wide fees on a developer. This ruling will likely have direct repercussions to a developer’s proforma in today’s marketplace, were both developers and local governments are implementing creative strategies for addressing certain housing shortages – such as the provision of specific workforce housing.
Continue Reading No Students? No Problem, Developer Still Pays

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 of the California Air Resources Board’s (“CARB”) Cap-and-Trade Program.  The court held that CARB has the authority to establish the auctions and that they do not constitute an illegal tax.  The second holding is key and breaks new legal ground; it also was made over a strong dissent.  As the court put it, “the hallmarks of a tax are: 1) that it is compulsory; and 2) that the payor receives nothing of particular value for payment of the tax.”  (Op. at 5.)  The auction system is not a tax because 1) “the purchase of allowances is a voluntary decision driven by business judgments as to whether it is more beneficial to the company to make the purchase than to reduce emissions,” and 2) “the allowances are valuable, tradable commodities, conferring on the holder the privilege to pollute.”  (Id.)  This is a major victory for the Program and the State’s efforts to address climate change by reducing GHG emissions. However, there is a question whether the decision will stand.  There was a strong dissent, and the decision is sure to be appealed to the California Supreme Court.  Meanwhile, the Legislature is currently at work on crafting legislation aimed at determining how the existing ambitious emission reduction mandates will be met.  The court’s decision will factor into those critical legislative deliberations, which will resume later this month after the spring recess.
Continue Reading GHG Allowance Auctions are Not a Tax; Key Element of State’s Cap-and-Trade Program Upheld

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 a government cannot avoid Fifth Amendment takings liability by denying a permit unless the applicant agrees to a potentially unconstitutional condition. The Court saw this as a procedural ploy to circumvent the effect of Nollan-Dolan. According to Justice Alito, denial of a permit because an applicant will not accept an unconstitutional condition does not insulate the condition from constitutional review any more than when the condition is imposed over the applicant’s objection and the permit is granted. In California, state law already generally allows applicants to accept a permit and still challenge illegal conditions under Nollan-Dolan, but many states saw the granting of the permit as barring a later challenge. The majority’s second ruling was the one that caused sparks to fly with the dissent. Justice Alito held that monetary exactions are subject to the same scrutiny under the Nollan-Dolan “nexus” and “rough proportionality” tests as land dedication requirements. This has generally been the rule for many years in states like California and Texas.Continue Reading The Supreme Court Gets It Right On Takings – And Wrong – A View from “Inside the Curtilage”: The Property Owner’s Perspective

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 rejected a development permit application because the landowner refused to reduce the size of the project or pay for off-site wetland mitigation. After trial, the lower court awarded damages to the landowner. The Florida Supreme Court reversed, holding that taking claims cannot be brought for permit denials or monetary exactions.Continue Reading Supreme Court Hands Major Win To Landowners