Fees & Exactions

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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