Agenda - Planning Commission - 01/05/2017

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November 25, 2016 1 Volume 10 1 Issue 22 Zoning Bulletin u Ordinance and its in-lieu of fee was a restriction that violated the Fifth Amend- ment on its face and insofar as it governed Croft's future use of its property. Croft also argued that the City violated California's Mitigation Fee Act. The Mitigation Fee Act provides the requirements for development impact fee programs. Croft asked the court to issue a writ of mandate to compel the city to return the funds, or, alternatively, to hold an administrative hearing to determine the validity of the collection. The court denied the writ, and Croft voluntarily dismissed its remaining claims and appealed. DECISION:Judgment of superior court affirmed. The Court of Appeal, Second District,Division 1, California,held that the in-lieu fees charged to Croft by the City were valid and legal. In so holding,the court first determined that Croft's facial due process chal- lenge failed for procedural reasons,finding it was time barred.With regard to Croft's as-applied challenge,the court found that the in-lieu fee charged under the City's inclusionary housing Ordinance was not an "exaction" which invoked the United States Constitution's Fifth Amendment. The court found the in-lieu housing fee here was "not to defray the cost of increased demand on public services resulting from Croft's specific development project, but rather to combat the overall lack of affordable housing."The fee was one vol- untarily paid by a developer as an alternative to setting aside affordable hous- ing units under the City's inclusionary housing Ordinance, said the court. In other words,it was,found the court,a condition of property development,not an exaction or special tax.Thus,finding the fee was a land use regulation(and not an exaction), the court explained that: "[a]s a general matter, so long as a land use regulation does not constitute a physical taking or deprive a property owner of all viable economic use of the property, such a restriction does not violate the takings clause insofar as it governs a property owner's future use of his or her property."The court emphasized that was"especially true when the regulation, like the one here, broadly applies nondiscretionary fees to a class of owners because the risk of the government extorting benefits as conditions for issuing permits to individuals is unrealized." With specific regard to Croft's argument that the in-lieu fee violated the due r` process clause because "the City did not bear its burden in proving the fees were `reasonably related' to the deleterious public impact caused by Croft's development,"the court noted that the burden of proving an absence of a rea- sonable relationship between the impact of Croft's development project on the demand for affordable housing was,in fact, on the developer(Croft), and not i. the City(as Croft had argued).The court said that,as a general matter,so long as a land use restriction or regulation bears a reasonable relationship to the public welfare, the restriction or regulation is'constitutionally permissible. In any case,here,the court said the"reasonableness test"applied to the creation of the fee schedule by the City, and not its application. Because Croft did not dispute the City's creation of the fee schedule, the court did not address the reasonableness of the fee schedule itself. Given its determination that the in-lieu housing fee was not an exaction,the 10 ©2016 Thomson Reuters