Two Additional Fee Cases Head to State High Court for Review

The state Supreme Court has added two cases involving fees to its expanding list of land use controversies under review.

In October, the court accepted a case involving impact fees from reuse of the Fort Ord Army base, and a challenge of planning and building fees charged by the City of Rancho Cucamonga.

In the Fort Ord case, the Sixth District Court of Appeal ruled 2-1 that California State University was not required to fund off-site road and fire safety improvements needed to serve the CSU Monterey Bay campus (see , August 2003). The Fort Ord Reuse Authority and the City of Marina argued that the environmental impact report for the campus failed to recognize CSU’s responsibility for funding its fair share of infrastructure. A trial court ruled for the Reuse Authority and the city, concluding that the California Environmental Quality Act (CEQA) required the university to contribute to a fund for the mitigation of cumulative impacts.

The appellate court overturned that decision, ruling that fees — not an interpretation of CEQA — was at issue. According to the state constitution, Government Code § 54999 and case law, traffic and fire safety improvements necessary for a public university are the responsibility of the locality, not the university, the court ruled.

The case is , No. S117816.

The second new case for the high court involves building permit and plan review fees for a 123-unit subdivision levied by Rancho Cucamonga (see , July 2003). The developer, Barratt American, argued that the city failed to complete an annual audit to determine that the fees did not exceed the cost of providing service, and that the fees were arbitrarily based on the value of construction. The developer also contended the fees were special taxes prohibited by Proposition 62.

A trial court and the Fourth District Court of Appeal ruled for the city. The appellate court ruled that the lawsuit was filed after the statute of limitations had passed and relied on the wrong statutes. The court ruled that even though Barratt American filed a lawsuit contesting the fee schedule within the 180-day statute of limitations, the suit was still too late because the city only re-adopted existing fees, and did not increase fees or levy new ones.

The case is , No. S117590.

The state’s high court has five other land use cases under consideration, none of which have been set for oral argument yet. Those cases are:

•, No. S113466, in which lower courts ruled the composition of the Coastal Commission is unconstitutional. • , No. S116081, concerning the Coastal Commission’s jurisdiction outside the coastal zone. • , No. S105078, over whether Proposition 218 should apply to a water connection fee and a fire suppression fee charged to developers. •, No. S109597, which involves the statute of limitations for contesting the county’s second-unit ordinance. •, No. S116870, regarding state enforcement of the Surface Mining and Reclamation Act.