A water connection fee charged by a special district is a development fee not subject to the constraints of Proposition 218, the Third District Court of Appeal has ruled. However, a "fire suppression" assessment levied by the same district is subject to Proposition 218 and required two-thirds voter approval.
In 1994, the Shasta Community Services District, in the foothills west of Redding, approved a water service and connection fee of $2,000 for new users. The fee included a $400 fire suppression charge. In 1997, the district raised the connection fee to $3,176 based on the estimated cost of providing new capacity and the number of projected users. The district board also decided to continue levying the $400 fire suppression fee.
Subdivision developers within the district filed a lawsuit, arguing that both charges were subject to Proposition 218, the Right to Vote on Taxes Act of 1996. Shasta County Superior Court Judge Richard McEachen ruled for the district. A unanimous three-judge panel of the Third District overturned part of McEachen's ruling.
The court held that the connection fee clearly fell outside the boundaries of Proposition 218, which expressly excluded development fees. "[T]he distinguishing feature between a tax or assessment and a development fee is the voluntariness of the latter," Justice Harry Hull wrote for the court. "A property owner is not compelled to pay a development fee unless and until he or she elects to develop the property. Considered as a whole, Proposition 218 was not intended to reach such fees."
To meet the requirements of Proposition 218, the district would have to identify the parcels for which water service would ultimately be requested, and then conduct an election. But, Hull wrote, it would be impossible for the district to identify those parcels. Thus, the proposition could not apply to the connection charge.
The fire suppression fee, however, was different. The charge was an assessment for general government services, and all such fees — even existing fees — had to comply with the election mandate of Proposition 218 by July 1, 1997, the court held. The special district never conducted an election of the fire suppression fee, so it is illegal.
Jerry Richmond v. Shasta Community Services District, No. C034239, 02 C.D.O.S. 1187, 2002 DJDAR 1427. Filed February 5, 2002.
For Richmond: Walter McNeill, (530) 222-8992.
For the district: David L. Edwards, (530) 221-0694.
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