2015 case law & impact fee update · 11/4/2015 1 2015 case law & impact fee update clancy...
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11/4/2015
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2015 Case Law & Impact Fee Update
Clancy Mullen, Duncan AssociatesTyson Smith, Esq., AICP
White & Smith, LLC
October 15, 2015
Overview
• Ongoing Legacy of Koontz v. SJRWMD
– CBIA v. San Jose (Cal. Sup. Ct. 2015)
– Levin v. San Francisco (ND Cal 2014)
• Walker v. San Clemente (Cal Ct App 2015)
• KLN Construction v. Pelham (NH 2014)
2015
Cas
e La
w U
pdat
e
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Update
St. Johns River Water Management
Dist. v. Koontz – US Sup Ct 2013
Koontz v. SJR W
MD
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3
Categories of Takings
• Physical (Loretto)
• Regulatory• Total/per se (Lucas)
• Partial/ad hoc (Penn Central)
• Unconstitutional Conditions (Nollan/Dolan and sometimesKoontz)
Categories of Takings
• Unconstitutional Conditions
But what’s included here?
Money?
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• Nollan/Dolan applies only to exactions involving:
– interest in real property
– in exchange for permit approval
– where approval is given.
Florida Supreme Court
Koontz v. SJR W
MD
US Sup Ct Holding
• No taking
• Just Compensation not proper remedy
• State law remedies (“damages”) apply where no taking
• But Nollan and Dolan apply:
– to application denials (when nothing is “taken”)
– monetary exactions
Koo
ntz
v. S
JRW
MD
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5
What about impact fees and legislatively‐adopted mitigation requirements?
• Majority said Nollan/Dolan:
– apply to “in‐lieu fees” (San Jose says “not these”)
– Koontz cited an article on Impact Fees
– don’t apply to “property taxes, user fees, and similar laws and regulations”
“Maybe today’s majority accepts that distinction; or then again, maybe not.”
But what are “monetary exactions?”
Koontz v. SJR W
MD
Cal. Bldg. Indus. Assn. v. San Jose, et al
California Sup Ct 2015
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Common Approaches
• Inclusionary Housing/Zoning Ords. (IHOs)
• Fees‐in Lieu and Mitigation Fees
• Conversion Prohibition, Restrictions
Hou
sing
Miti
gatio
n
The 2012 Inclusionary Housing Ordinance
• Applicable to residential projects of 20 units or more
• 15% must be Affordable as sales to to Low‐ or Moderate‐Income Households
• Options for compliance:– Construct On‐Site (preferred)
– Construct Off‐Site
– Fee‐in‐lieu
– Dedicate land
– Acquiring/Rehabbing same # units
CB
IA v
. San
Jos
e
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The 2012 IHO, cont’d
• Incentives and Bonuses:
– Density bonus
– Required Parking Reductions
– Setback Reductions
– City Subsidies and Assistance on marketing Affordable Housing Units
• Character of Units
• Restrictions and DocumentationCB
IA v
. San
Jos
e
Issues and Holdings
• Does the IHO requirement trigger:
– takings analysis?
• “unconstitutional conditions” (Nollan/Dolan)
• mitigation of impacts of individual property owner
– just police power?
• condition of approval
• addressing community‐wide impacts
• Held: Police Power; no demand that property be conveyed as a condition of approval
CB
IA v
. San
Jos
e
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California S.Ct. on Koontz
• Koontz expanded Nolan/Dolan to money
• But:
– still has to meet other requirements of the “unconstitutional condition” taking; and
– reduced profits, if proven, are not a taking
• Fees in lieu are:
– not an alternative to a demand for land;
– an alternative to a valid regulatory condition
CB
IA v
. San
Jos
e
Status
• Cert. Petition with US Sup Ct filed on Sept. 15, 2015
“Whether such a permit condition, imposed legislatively is subject to scrutiny and is invalid under the unconstitutional conditions doctrine set out in Koontz,
Dolan, and Nollan.”
CB
IA v
. San
Jos
e
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IHO Observations
• A “regulatory condition” versus an “property exaction”?
• Mix of MR and AH a “use” under zoning?
• Housing Need Studies performed?
• Statutory basis of authority?
• Limitations on (non‐confiscatory) Rent or Price Controls?
• Compliance Options Offered?
• Study showing Cost to comply?
UpdateLevin et al. v. San Francisco
Federal District (Trial‐Level) CourtOct 21 2014
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Levin v. San Francisco
24 mos.
x
$7,400/mo (MR) ‐ $2500/mo (Contr.) = $4,900/mo.
Levin’s Withdrawal Fee: $117,000
Background Facts
Levin v. San Francisco
• No “essential nexus”
• Landlords didn’t cause the Rental Gap
• No restrictions on what Tenant would do with payment proceeds
• Payment required, even if Tenant is wealthy
• Can’t force an individual to pay for public problems they didn’t cause
Applying Nollan& Dolan
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Levin v. San Francisco
• Ordinance = facial, unconstitutional taking
• Nollan/Dolan/Koontz apply, even though the fee:
– is Legislative
– results of a specific formula (“mathematical precision”)
– Is not “in‐lieu” of a land dedication or other required dedication of property
Holding
Levin v. San Francisco
• Ordinance amended to:
– Cap potential fees at $50K
– Control how affected tenants must use money (for purposes of relocation)
• Motions at Ninth Circuit sent case back to District Court
• Motions pending in Federal District Court
Status
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San Jose and Levin on Nollan/Dolan/Koontz
• San Jose
– N/D don’t apply to IHO set‐asides that limit profits, but don’t exact anything
– K doesn’t apply to in‐lieu fees because they aren’t alternative to real property exaction
• Levin:– N/D/K apply because feepayor didn’t cause the
problem; even though fees legislative in nature
– Fees weren’t “earmarked”
– No showing of “need”
SJR
WM
D v
. Koo
ntz
Koontz’s Reach?
• Cited in 18 other cases nationally
– Land Use– Shareholder Control– Warrantless Search & Seizure– Education Funding– Affordable Care Act
• Remaining Issues:– What it applies to?
– What triggers taking?
– What damages are?
– State law procedural issues?
SJR
WM
D v
. Koo
ntz
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Koontz Status
• October 30, 2013: Florida Supreme Court remanded to Florida District Ct. of Appeals
• April 30, 2014: Fla. DCA
– affirmed its prior opinion in Koontz IV (that a “taking” had occurred, just compensation due)
– although US SCt held no taking had occurred
• May 2014: Petitions for Discretionary Jurisdiction Filed at Fla. Sup. Ct.
• No decisions so farSJR
WM
D v
. Koo
ntz
Walker v. City of San Clemente
Court of Appeal, California
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Case Background
• Mid‐1980s major proposed development outside the coastal zone had potential to double population (360 new spaces needed to serve)
• Beach parking at capacity; 35% of users are city residents
• 1989 – Adopt Beach Parking Impact Fee to mitigate impact of new residents needing to park at the beachW
alker v. San
Clemente (2015)
The Mitigation Fee Act
• 5‐Year Report for Unspent Fees
– Purpose in holding unspent fees
– Show reasonable relationship b/t unspent fees and purpose for imposing
– Identify any supplementary funds
– Identify date supplementary funds will be combined with impact fees for use
§ 66001, subd (d)(1)
Walker v. San
Clemente (2015)
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Beach Parking Impact Fee
• 1989 – Adopt Beach Parking Impact Fee
–$1500/DU
–Use for planned structured parking (the purpose for imposing the fee)
Walker v. San
Clemente (2015)
Timeline
• 1990: Collect $300K
• 1994: Spent $337K to purchase a lot
• 1996:
– Total collections at $2 million
– Fees updated: $750/DU (demand reevaluated)
– Expand use to “improvements to beach parking” (new purpose for imposing?)
Walker v. San
Clemente (2015)
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Timeline, cont’d
• 2004: Filed its Five‐Year Report, related to unspent funds, per the Act
• 2009:
– Non‐coastal zone built out
– $6 million in Beach Parking Impact Fees, plus $3M in interest
– Filed another Five‐Year Report
– No additional “parking structures” or “improvements” made or planned
Walker v. San
Clemente (2015)
Nature of the Major Challenges
• Refund for:
– 2009 Five‐Year report failed to include proper findings (court agreed)
– 1994 lot purchased for parking (compel sale) (dismissed)
– Administrative costs/expenditures should be reversed, refunded (dismissed)
• Accounting:
– Beach Parking Impact Fees improperly commingled
Walker v. San
Clemente (2015)
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Compliance with the Mitigation Fee Act
• 5‐Year Report
– Purpose in holding unspent fees
– Show reasonable relationship b/t unspent fees and purpose for imposing
– Identify any supplementary funds
– Identify date supplementary funds will be combined with impact fees for use
§ 66001, subd (d)(1)
Walker v. San
Clemente (2015)
Compliance with the Mitigation Fee Act
• 5‐Year Report– Purpose in holding unspent fees
– Show reasonable relationship b/t unspent fees and purpose for imposing (“dodges the question” by restating 1989 methodology)
– Identify any supplementary funds
– Identify date supplementary funds will be combined with impact fees for use
§ 66001, subd (d)(1)
Walker v. San
Clemente (2015)
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Compliance with the Mitigation Fee Act, cont’d
• 5‐Year Report– Purpose in holding unspent fees
– Show reasonable relationship b/t unspent fees and purpose for imposing
– Identify any supplementary funds (not specific enough; didn’t id. a start date)
– Identify date supplementary funds will be combined with impact fees for use (“N/A” isn’t sufficient)
§ 66001, subd (d)(1)Walker v. San
Clemente (2015)
Compliance with the Mitigation Fee Act, cont’d
• More than mere technical deficiencies
• Act is clear the improvements must be identified
• Refund is the express remedy for failure to make proper 5‐Year Report
Walker v. San
Clemente (2015)
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Add’l Challenges
• Refund for:– Untimely filing of 2004 Five‐Year Report (time‐barred)
– 1994 lot purchased for parking (compel sale) (dismissed; “unexpended portion…”)
– Administrative costs/expenditures should be reversed, refunded (dismissed, administration “…furthers the purpose for which the fee was collected...”; not limited to just hearing costs)
• Accounting:
– Beach Parking Impact Fees improperly commingled (fund = account)W
alker v. San
Clemente (2015)
K.L.N. Construction Co. v. Town of Pelham
New Hampshire Sup. Ct.
Dec 2014
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Facts of the Case
• Ordinance (1999):
– Fees to be spent in 6 years
– Refunds to “current owners of property”
• What Happened:
– Allegedly Spent fees in 2002 and 2010, on feasibility, architecture, construction estimates
– 2006‐10, voters rejected expenditures on fire stations
– 2012 voters approved fire station
K.L.N. Construction Co. (2014)
Nature of the Challenges
• Alleged in 2012 petition:
– Fees can’t be “spent” on “pre‐construction” costs
– Therefore, no fees “spent” within 6 years
• Town’s Response:
– Petitioners lack standing to sue
– Towns can choose and we chose current owners as the refund recipients
– Petitioners are no longer are owners
• Trial Court: Granted Town’s Motion to Dismiss
K.L.N. Construction Co. (2014)
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the Law on this
• NH Statue:
– states “…shall establish reasonable times after which any portion of an impact fee…shall be refunded…”
– fails to define “refund” or who is entitled to it
• What to do?:
– Dictionary definitions aren’t helpful
– Exaction statute says “payor or payor’s successor,” but that can’t be imported into Impact Fee Statute K
.L.N. Construction Co. (2014)
the Law on this (cont’d)
• Other courts have said local governments can choose:
– Washington Urban League v. FERC (1989)
– TX Eastern Trans Corp v. Federal Pwr (1969)
– Southern County Mut Ins v. Surety (2008)
– Lake Co. Bd v. Prop Tax App Bd (1988)
• Holding: Statutes don’t prohibit the town from deciding, therefore designation of refunds the current property owner is authorized
K.L.N. Construction Co. (2014)
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• Holding:– Ordinance & Committee Report are not
evidence of Injury to Homeowner
– Fee: • Could be passed to Homeowner ( D, S)
• Could be absorbed by Developer ( D, S)
– Absent Collusion, “implausible” to assume fees were passed through
Evidence (or Incidence) of Injury
The Road Ahead?
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What we thought might happen…
• Privatization of Infrastructure
• Regulatory Dismantling
• Dialogue deteriorating
• Expansion of Inverse Condemnation COA?N
ational Im
pact Fee Roundtable 2009