Category: Exactions and Assessments

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Coastal Commission Erred In Finding Property Owner Is Stuck With Unconstitutional Dedication Condition

In an opinion on rehearing, the Second District Court of Appeal overturned a California Coastal Commission decision that a condition of a county-issued coastal development permit could not be eliminated by a second coastal development permit the county issued for the same project. Bowman v California Coastal Commission, No. B243015, Oct. 23, 2014.  Focusing on … Continue Reading

Annexation To District Is Not Authorized For Sole Purpose Of Extending Right To Vote In District Elections

“No taxation without representation”  is a powerful rallying cry, but it’s not enough to justify an application for annexation of territory to a special district, according to recent court of appeal decision. City of Patterson v Turlock Irrigation District  (5th Dist. F067629 June 25, 2014).  The court held that there is no statutory authorization for expansion … Continue Reading

Conditions of Approval: “No Do-Overs” On A Condition The Landowner Failed To Challenge When First Imposed.

A landowner’s attack on a condition of approval of a development permit was barred by the landowner’s failure to contest the same condition when it was imposed on an earlier permit, according to a recent court of appeal decision.  Bowman v California Coastal Commission, B243015 (2d Dist 2014).  San Luis Obispo County issued a coastal … Continue Reading

Requiring dedication of overflight easement as condition to issuance of building permits does not constitute an unconstitutional exaction

 A recent California Court of Appeal decision considered the argument that a county requiring property owners to dedicate an overflight easement as a condition to issuance of a building permit was an unconstitutional exaction. The court concluded that the owners could not establish a taking because they were unable to show that the government simply … Continue Reading

California Supreme Court Makes It Easier To Challenge Local Affordable Housing Requirements

Under the Mitigation Fee Act, when a city imposes a fee, dedication, reservation or other exaction on a development project, the developer has the right to pay under protest, obtain the necessary project approvals and proceed with construction, while at the same time disputing the legality of the requirement.  In Sterling Park v. City of … Continue Reading

California Supreme Court To Hear San Jose Affordable Housing Case.

 The California Supreme Court has granted a petition by the California Building Industry Association for review of an appellate court’s  decision upholding a San Jose affordable housing ordinance.  The court of appeal found the ordinance to be a valid exercise of the City’s police powers, reversing a lower court ruling that the city had not … Continue Reading

County Could Not Make Density Bonus Conditional Upon Compliance With Local Affordable Housing Requirements

A local agency may not condition the availability of a density bonus upon provision of more affordable housing than the minimum required under the State Density Bonus Law.  Latinos Unidos Del Valle De Napa Y Solano v. County of Napa, No. A135094 (First District, July 11, 2013).  California’s Density Bonus Law, Government Code § 65915, … Continue Reading

U.S. Supreme Court Holds That Monetary Exactions are Subject to Nexus and Rough Proportionality Requirements

In a 5-4 decision, the United States Supreme Court expanded the reach of the requirement that there be a “nexus” and “rough proportionality” between the impacts of a proposed development and governmental conditions imposed on the development.  Koontz v. St. Johns River Water Management District, 570 U.S. ___ (2013). The Court held that these requirements … Continue Reading

Battle on the Beach—Sunset Beach Has No Right to Vote on Huntington Beach Taxes Before Being Annexed

Faced with the prospect of having to pay special property taxes after annexation by Huntington Beach, residents of unincorporated Sunset Beach sued to block annexation, or to require a vote by the Sunset Beach electorate on whether they should have to pay the taxes after annexation. In Citizens Association of Sunset Beach v. Orange County … Continue Reading

ACLU Files Brief in Support of Building Industry Association

It’s not every day that the American Civil Liberties Union and the Building Industry Association find themselves on the same side of an appellate case.  But it can happen, as shown by an amicus curaie brief the ACLU filed today in support of an attorneys fees award to BIA for its successful challenge to a city ordinance. The case, currently … Continue Reading

CBIA Heads Off Level III Fees

Level II school fees are intended to fund approximately 50% of the cost of school facilities. The other 50% is funded by the state through the Leroy-Greene School Facilities Act of 1998, commonly known as SB-50. But what happens when the state runs out of money, as will soon happen? SB-50 provides that if state … Continue Reading

CEQA and EIR Adequacy: The Latest Words on Public Services Impacts and Adaptive Mitigation Programs

Two important, recurring CEQA questions are answered by a recent court of appeal decision in a case involving the EIR for a California State University campus master plan: whether CEQA requires funding of mitigation for a project’s effects on public services; and whether an adaptive mitigation program for traffic and parking impacts improperly defers decisions about mitigation. … Continue Reading

Court Invalidates San Jose Affordable Housing Ordinance

The California Building Industry Association scored a major victory recently when a San Jose judge threw out the city’s requirement that residential developers sell or rent a specified portion of newly-built homes to lower-income households. The court ruled the city had not shown a reasonable linkage between the impact of new development and the need for affordable … Continue Reading
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