The County of El Dorado requires everyone seeking a building permit for new development to pay a fee to mitigate the additional traffic that the proposed development is predicted to cause. But the County doesn't calculate the fee by actually looking at a proposed development and predicting what traffic impacts in may be responsible for. Rather, it has a generic fee schedule that applies to all proposed developments broken down by location and type (residential, commercial, etc.). We don't care whether your development actually causes more traffic (or if it does, the extent of the increase), we're hitting you all up.
Or as the California Court of Appeal put it in Sheetz v. County of El Dorado, No. C093682 (Oct. 19, 2022), "[i]n assessing the fee, the County does not make any 'individualized determinations' as to the nature and extent of the traffic impacts caused by a particular project on state and local roads." Slip op. at 3.
Thus, when Sheetz asked for a building permit for a 1,854 square foot "manufactured home" (i.e., a mobile home), the County said "sure ... just pay the scheduled traffic mitigation fee." Hitting up the schedule, the fee worked out to a whopping $23,420. It appears El Dorado County is appropriately named.
Sheetz paid up, and then protested that this fee had not been calculated legally. The County had not shown that his modest proposal would create additional traffic that only $23 Grand would mitigate. When the County didn't respond, he sued, asserting claims for an unconstitutional condition under Nollan/Dolan, and for violation of the California Mitigation Fee Act. The trial court sustained the County's demurrer and denied the petition for writ of mandate.
None of this bothered the court of appeal, and you can skip to page 12 of the opinion to understand why. As you might predict, the court concluded that the Nollan/Dolan nexus and rough proportionality requirements apply only to these things we call "exactions," and the County here is not imposing an "exaction." As the opinion put it, "while the Nollan/Dolan test applies to monetary land-use exactions which are imposed ad hoc on an individual and discretionary basis, it does not apply to generally applicable development impact fees imposed through legislative action." Slip op. at 12.
Yeah, there's "some danger" of "improper leveraging" of the power to approve or disapprove development and use of private property (ya think?), "such generally applicable legislation is subject to the ordinary restraints of the democratic political process."
Ah yes, the "leave justice to politics" rationale:
A city council that charged extortionate fees for all property development, unjustifiable by mitigation needs, would likely face widespread and well-financed opposition at the next election. Ad hoc individual monetary exactions deserve special judicial scrutiny mainly because, affecting fewer citizens and evading systematic assessment, they are more likely to escape such political controls.”
Slip op. at 13 (quoting San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal.4th 643, 671 (Cal. Ct. App. 2002)).
What saved the traffic fee demand from judicial scrutiny was that it was not discretionary, and applied to everyone. Thus, the unconstitutional condition claim was subject only to rational basis review, and the Mitigation Fee Act claim was subject only to a reasonable relationship test. And we know what those mean: this stuff is just too complex for judges to figure out. Mess around with one guy and you might get a stern judicial talking to. But mess around with everyone? Sorry, we can't figure it out because your world frightens and confuses us!
This isn't a new issue, and not only is there a long-standing lower court divergence, the Supreme Court has declined offers in the past to review the legislative vs adjudicative distinction (vel non) when the government demands your money or your rights.
Will the Court staying on the sidelines continue? Stay tuned.
Sheetz v. El Dorado County, No. C093682 (Cal. Ct. App. Oct. 19, 2022)
