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that imposing fees on commercial develop-
<br />ments may prevent a city or local agency from
<br />attracting businesses that will help generate
<br />valuable tax dollars. Accordingly, local agen-
<br />cies and planners should consider providing
<br />fee waivers for certain types of projects or
<br />outright exempting such projects from impact
<br />fees.
<br />Consider Using Development Agreements
<br />Instead of Impact Fees
<br />In certain jurisdictions, such as California,
<br />fees imposed pursuant to a development
<br />agreement are not subject to the constitution-
<br />al nexus requirements or otherwise applicable
<br />notice and protest provisions.
<br />The rationale for exempting these fees is
<br />that, unlike development impact fees imposed
<br />via local ordinance in accordance with state
<br />law, development agreement impact fees are
<br />considered voluntary, negotiated terms of an
<br />arms -length agreement between the devel-
<br />oper and the city or local agency.
<br />Planners should review their state and
<br />local regulations to determine whether such
<br />fees are also exempted in their jurisdiction.
<br />CONCLUSION
<br />The use of development impact fees is a pow-
<br />erful tool for local agencies to strategically
<br />manage future growth within their jurisdic-
<br />tions.
<br />Among other things, development im-
<br />pact fees help ensure that future development
<br />does not outpace the infrastructure necessary
<br />to sustain it by providing a source of funding
<br />that local agencies can use to construct the
<br />necessary facilities and provide the municipal
<br />services required to support new develop-
<br />ment, such as water, sewer, and police and
<br />fire protection.
<br />Importantly, however, these fees are
<br />subject to constitutional limitations, as well
<br />other state and local regulatory requirements,
<br />which planners should become familiar with
<br />in order to ensure that local impact fee pro-
<br />grams are consistently and fairly applied and
<br />comply with the Nollan/Dolan essential nexus
<br />and rough proportionality requirements.
<br />Finally, the American Planning Associa-
<br />tion's Policy Guide on Impact Fees is a helpful
<br />resource for planners seeking further informa-
<br />tion on development impact fees and ways to
<br />improve local impact fee programs (planning.
<br />org/policy/guides).
<br />About the Authors
<br />Paige H. Gosney is a land -use attorney with
<br />the California law firm Gresham Savage Nolan
<br />&Tilden, PC, and part of its Land Use, Mining
<br />& Water practice group. He is an experienced
<br />land -use and environmental litigator, and
<br />also regularly represents project applicants,
<br />developers, land owners, and public agencies
<br />in connection with the land -use entitlement
<br />and permitting process. Gosney is a longtime
<br />editor of the California Land Use Law & Policy
<br />Reporter, and is also an advisory board
<br />member for the Climate Change Law & Policy
<br />Reporter.
<br />Martin P. Stratte is a land -use attorney with
<br />the California law firm Gresham Savage Nolan
<br />&Tilden, PC, and part of its Land Use, Mining
<br />& Water practice group. He specializes in the
<br />entitlement of residential, industrial, and big -
<br />box projects, and is a member of the firm's
<br />environmental and land -use litigation team.
<br />Stratte holds a B.A. in Urban and Regional
<br />Planning from the University of Illinois at
<br />Urbana —Champaign and is an editor of
<br />Climate Change Law & Policy Reporter.
<br />Cover: Pexels.com (CCo)
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