Exactions and Impact Fees

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On May 26, 2016, the California Building Industry Association successful obtained a temporary restraining order from the Sacramento Superior Court preventing the State Allocation Board—and all others acting in concert with the SAB or under its direction—from implementing Level 3 school impact fees or sending notice to the Legislature that state funds for new school construction are not available.  The TRO temporarily halted the ability of school districts statewide to impose Level 3 fees.  We wrote about the California Building Industry Association v. State Allocation Board case on May 27, 2016.

The case proceeded to a preliminary injunction hearing on July 22, 2016, and exactly one month later the court denied the request and terminated the TRO.Continue Reading Court Denies Preliminary Injunction and Terminates Temporary Restraining Order, Allowing Imposition of Level 3 School Impact Fees

The Mitigation Fee Act (Government Code § 66000 et seq.) provides the requirements for development impact fee programs. Most of the Act’s provisions were adopted in 1987 as AB 1600 and are sometimes referred to as “AB 1600 requirements.” In large part, the MFA codifies the requirements the U.S. Supreme Court established in its seminal decisions, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 319 (1994). Those cases established the requirements that land use exactions must substantially advance the same government interest that would furnish a valid ground for denial of the permit and that such exactions must also be “roughly proportional” both in nature and extent to the impact of the proposed development.
Continue Reading The Mitigation Fee Act Provides the Sole Means for Challenging Development Impact Fees and Recovering Interest

The California Building Industry Association obtained a critical temporary restraining order against the State Allocation Board in connection with the Board’s 6-4 vote on May 25, 2016 finding, for the first time, that state funds for new school facility construction are not available.  Upon making that finding, the Board is obligated to notify the Secretary of the Senate and the Chief Clerk of the Assembly and that notice must be published in the journal of each house.  As soon as the notices are published, eligible school districts that already charge Level 2 fees may charge Level 3 school impact fees, which would immediately double the school fees in those districts.

CBIA filed suit the same day, seeking immediate injunctive and mandamus relief in the Sacramento Superior Court to prevent the SAB’s action from taking effect.  California Building Industry Association v. State Allocation Board (Case No. 34-2016-80002356, May 25, 2016).  The CBIA alleged, among other things, that Level 3 fees are not justified now because the SAB’s own records indicate that as of May 2016 the state has at least $150M available for new school facility construction.Continue Reading State Allocation Board Temporarily Stopped from Authorizing Level 3 School Impact Fees

February 29, 2016 was a notable leap year day for the United States Supreme Court. To the surprise of most in the courtroom that day, Justice Clarence Thomas asked his first question from the bench in more than 10 years. The Court also issued its first round of orders since the February 13 death of Justice Antonin Scalia, including a denial of certiorari in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).
Continue Reading U.S. Supreme Court Denies Review of California Supreme Court Decision Upholding San Jose Inclusionary Housing Ordinance