Exactions and Assessments

A Mello-Roos tax on new residential development to finance a wide variety of governmental services was a valid special tax, not a general tax to fund existing municipal services. Building Industry Association of the Bay Area v. City of San Ramon 4 Cal.App.5th 62 (2016)

An analysis performed by the City of San Ramon showed

A Sacramento Superior Court judge has issued a temporary restraining order barring the State Allocation Board from formally notifying the California Senate and Assembly that state funds for new school facility construction are no longer available. The order, issued yesterday, effectively blocks implementation of Level 3 school fees, which would otherwise have been triggered as

The California Building Industry Association has filed a petition for certiorari in the United States Supreme Court seeking review of the California Supreme Court’s recent decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015). In that decision, the California high court upheld San Jose’s affordable housing ordinance,

The Fourth District Court of Appeal has upheld an order requiring refund of over $10 million in accumulated development impact fees because the City’s findings “were mere conclusions, not the specific findings required under the [Mitigation Fee] Act.” Walker v. City of San Clemente, No. G050552 (Fourth Dist., Aug. 28, 2015).

Statutory Requirements. Under the Mitigation Fee Act, Gov’t. Code §§ 66000 et seq., each development fee must be deposited in a separate capital facilities account and may be expended only for the purposes for which it was collected. For all unexpended fees, the agency must make findings every five years that (1) demonstrate a reasonable relationship between the unexpended balance and the purpose for which the fee was charged; (2) identify the sources and funding for any as-yet uncompleted public improvements; and (3) designate the approximate date the agency expects the funding for uncompleted improvements to be deposited in the account. § 66001(d)(1) The Act provides that “[i]f the findings are not made as required by [the Act], the local agency shall refund the moneys in the account” to the current owners of the properties for which the fees were paid. § 66001(d)(2).

The Beach Parking Impact Fee. In 1989, the City of San Clemente adopted a “Beach Parking Impact Fee” whose stated purpose was to “mitigate the impact of the increased demand on beach parking caused by new residential development.” For some 20 years, the City collected the fee, but expended very little of it (less than 3%) on beach parking improvements. In 2009, the City Council “receive[d] and file[d]” a “Five-Year Required Report” prepared by staff to justify its continued retention of the fees under the Mitigation Fee Act. Plaintiffs challenged the City’s retention of the fees, contending that the Five-Year Report failed to satisfy the requirements of the Act.
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In a case closely watched by home builders, low-income housing advocates, and cities and counties throughout the state, the California Supreme Court has strongly endorsed inclusionary housing ordinances, ruling that they are legally permissible as long as it can be shown the ordinance is reasonably related to the public welfare. California Building Industry Association v. City of San Jose, No. S212072 (Cal. Sup. Ct., June 15, 2015). The court rejected a claim that a city may only impose inclusionary housing requirements on new residential development projects it if first shows that the need for affordable housing is attributable to new development.

The City’s Inclusionary Housing Ordinance. In order to respond to the lack of sufficient housing affordable to low and moderate income residents, many California cities have adopted “inclusionary housing” programs, which require developers to set aside units in new residential development projects for low and moderate income households. San Jose’s inclusionary housing ordinance, for example, requires that the sale price of at least 15 percent of for-sale units in projects of 20 or more units be affordable to low or moderate income households. The ordinance gives developers the option of meeting their inclusionary housing obligations by constructing affordable units off site, paying an in-lieu fee or dedicating land of an equivalent value, or acquiring and rehabilitating a comparable number of inclusionary units. The ordinance also provides various incentives to encourage developers to meet the ordinance’s affordable unit requirements onsite.
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A water district is not subject to the same vesting rights as a local agency under the Subdivision Map Act. Thus, the Subdivision Map Act does not restrict a municipal utility district’s authority to require an easement as a condition of providing water service to a residential lot on a newly-subdivided parcel. Tarbet v. East Bay Municipal Utility District, First Appellate District Case No. A140755, April 29, 2015.

In 2005, the County of Alameda approved a parcel map which subdivided a parcel into three lots. A condition of approval required that that each lot be connected to the East Bay Municipal Water District water system and the parcel map included an easement for a District water main. When the subdivider sought a letter confirming that water service would be available for each lot, the District indicated it would provide water service contingent upon compliance with its regulations.

Tarbet bought one of the lots and applied for water service. The District provided a water service estimate for installing a service connection, based on an additional 15-foot easement onto Tarbet’s property for the installation and maintenance of a water main and drain valve. Tarbet rejected the requested easement, and the District consequently refused to provide service.
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While acknowledging that the City’s affordable housing ordinance was no longer enforceable under the Costa-Hawkins Act, an appellate court dismissed a challenge to a permit condition requiring compliance with the ordinance because the owner failed to seek timely review of the permit condition through administrative mandamus. City of Berkeley v. 1080 Delaware, LLC, 234 Cal.App.4th 1144 (2015).

In 2004, the City issued a conditional use permit for construction of 51 residential rental units. One of the permit conditions required that 20% of the units be rented at rates affordable to below-median-income households pursuant to the City’s affordable housing ordinance. Market conditions delayed construction of the building for several years, after which the owner declared bankruptcy and the property was acquired by 1080 Delaware through foreclosure. In the interim, the court in Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396 (2009), invalidated an affordable housing ordinance similar to the City’s under the Costa-Hawkins Act, which generally precludes cities from restricting the initial rents that may be charged by landlords.

After 1080 Delaware notified the City that it viewed the affordable housing requirements as unenforceable in light of Palmer/Sixth Street, the City filed suit seeking a declaratory judgment that the permit condition remained valid and enforceable. In response, 1080 Delaware argued that the invalidity of the ordinance on which the permit condition was based necessarily rendered the condition itself invalid.
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Perkins Coie attorneys — most of whom contribute regularly to this report — recently presented the 25th Annual Land Use & Development Law Breakfast Briefing in Palo Alto, San Francisco and Walnut Creek.   The presentation focused on 2014 developments and trends in land use, affordable housing, school facilities financing, CEQA, real estate and environmental and