Sheetz v. County of El Dorado ( 2022 )

Filed 10/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
GEORGE SHEETZ, C093682
Plaintiff and Appellant, (Super. Ct. No. PC20170255)
v.
COUNTY OF EL DORADO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of El Dorado County, Dylan
Sullivan, Judge. Affirmed.
FisherBroyles, Paul James Beard II, Matthew Howard Weiner for Plaintiff and
Appellant.
Abbott & Kindermann, Glen C. Hansen; David Anthony Livingston, County
Counsel for Defendant and Respondent.
1
This is a land-use regulation case. Plaintiff George Sheetz challenges the $23,420
traffic impact mitigation fee (TIM fee or fee) imposed by defendant El Dorado County
(County) as a condition of issuing him a building permit for the construction of a single-
family residence on his property in Placerville. Sheetz appeals from the judgment
entered after the trial court sustained the County’s demurrer without leave to amend and
denied his verified petition for writ of mandate. He contends reversal is required because
the TIM fee is invalid under both the Mitigation Fee Act (Gov. Code, § 66000 et seq.) 1
and the takings clause of the United States constitution, namely the special application of
the “unconstitutional conditions doctrine” in the context of land-use exactions established
in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 (Nollan) and Dolan v. City
of Tigard (1994) 512 U.S. 374 (Dolan). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
In July 2004, the County adopted a new general plan, titled “2004 El Dorado
County General Plan A Plan for Managed Growth and Open Roads; A Plan for Quality
Neighborhoods and Traffic Relief” (2004 General Plan or general plan). As relevant
here, the general plan required that new development pay for road improvements
necessary to mitigate the traffic impacts from such development.
In August 2006, the County permanently amended the general plan to include a
traffic impact mitigation fee program (TIM fee program or program) to finance the
construction of new roads and the widening of existing roads within its jurisdiction.
Under the program, the County is authorized to impose a TIM fee as a condition to the
approval of a building permit to mitigate the traffic impacts on state and local roads from
new development. The fee is comprised of two components: the Highway 50 component
1 Undesignated statutory references are to the Government Code.
2
and the local road component. The amount of the fee is generally based on the location
of the project (i.e., the specific geographic zone within the County) and the type of
project (e.g., single-family residential, multi-family residential, general commercial).
The program requires that new development pay the full cost of constructing new roads
and widening existing roads without regard to the cost specifically attributable to the
particular project on which the fee is imposed. In 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.
In February 2012, the County adopted new TIM fee rates, including the fee rate
challenged in this case.
In July 2016, Sheetz applied for a building permit to construct a 1,854-square-foot
single-family manufactured home on his property in Placerville, which is located in
geographic Zone 6. The County agreed to issue the permit on the condition that Sheetz
pay a TIM fee in the amount of $23,420, consisting of $2,260 for Highway 50
improvements and $21,160 for local road improvements. After Sheetz paid the fee, the
project was approved and the building permit issued in August 2016.
In December 2016, Sheetz sent a letter to the County in which he protested the
validity of the TIM fee under the Mitigation Fee Act on various grounds. Thereafter,
Sheetz sent the County additional letters reiterating his challenge to the fee and
requesting a refund. The County did not respond to any of the letters.
Procedural Background
In June 2017, Sheetz filed a verified petition for writ of mandate and complaint for
declaratory and injunctive relief, alleging seven causes of action challenging the validity
3
of the TIM fee and the program that authorized it.2 As for his state law claims, Sheetz
asserted that the fee violated the Mitigation Fee Act because there is no “reasonable
relationship” between both (1) the amount of the fee and the cost of the public facilities
(i.e., road improvements) specifically attributable to his development project, and (2) the
traffic impacts caused by his development project and the need for road improvements
within the County. Sheetz further asserted that the fee violated the Mitigation Fee Act
because it included costs attributable to existing deficiencies in the County’s “traffic
infrastructure.” As for his federal claims, Sheetz asserted that the fee violated the takings
clause of the United States constitution, specifically the special application of the
“unconstitutional conditions doctrine” in the context of land-use exactions established in
Nollan and Dolan, as the County failed to make an individualized determination that an
“essential nexus” and “rough proportionality” existed between the traffic impacts caused
by or attributable to his project and the need for improvements to state and local roads.
Finally, Sheetz asserted that the fee was invalid under state law because the County’s
decision to impose the fee as a condition of issuing him a building permit was not
supported by legally sufficient findings, and the findings were not supported by legally
sufficient evidence. Sheetz sought various relief, including the issuance of a peremptory
writ of mandate directing the County to refund the fee, an order declaring that the County
failed to demonstrate a “reasonable relationship” and/or “essential nexus” and “rough
proportionality” between the fee and any adverse traffic impact caused by his
development project, an order declaring invalid the County’s policy of requiring new
development to pay the full cost of constructing new roads and widening existing roads
2 Friends of El Dorado County, a nonprofit organization representing the interests of
citizens and taxpayers who live and work in the County, was also a named
petitioner/plaintiff in this case but is not a party to this appeal.
4
without regard to the cost specifically attributable to the particular project on which the
fee is imposed, and an injunction preventing the County from enforcing this policy.
In April 2018, the trial court sustained the County’s demurrer to the declaratory
relief causes of action (second through seventh causes of action) without leave to amend,
and overruled the demurrer to the petition for writ of mandate (first cause of action) on
the ground that it stated a cognizable claim under the Mitigation Fee Act, specifically
section 66001, subdivision (a). As relevant here, the court concluded the TIM fee was
not subject to the requirements of Nollan and Dolan (and therefore did not violate the
“unconstitutional conditions doctrine” as a matter of law) because it is a legislatively
prescribed development fee that is generally applicable to a broad class of property
owners. The court also concluded that Sheetz’s declaratory relief causes of action, which
sought a declaration that the fee and the program that authorized it violated the Mitigation
Fee Act and the “unconstitutional conditions doctrine,” failed as a matter of law because
the facial challenges were time-barred and the sole remedy for the “as applied”
challenges is administrative mandamus, not declaratory relief.
After the administrative record was completed and the parties submitted additional
briefing, the trial court denied the petition for writ of mandate in November 2020. As for
the state law claim, the court concluded the County had met its burden to produce
evidence showing that it used a valid method for imposing the TIM fee, one that
established a reasonable relationship between the fee charged and the burden posed by
Sheetz’s development project. The court further concluded Sheetz had failed to cite
evidence in the administrative record showing that the fee was arbitrary, capricious,
entirely lacking in evidentiary support, or unlawfully or procedurally unfair. Sheetz did
not show that the record before the County clearly did not support the underlying
determinations regarding the reasonableness of the relationship between the fee and the
5
development.3 In rejecting Sheetz’s constitutional challenge under state law, the court
found the administrative record established that the fee bore a reasonable relationship, in
both intended use and amount, to the deleterious public impact of the project. As for the
federal claim, the trial court rejected Sheetz’s constitutional challenge to the fee,
concluding (as it did in ruling on the demurrer) that the fee was not subject to the
requirements of Nollan and Dolan because it is a legislatively prescribed development fee
that is generally applicable to a broad class of property owners.
Sheetz timely appealed. He challenges the trial court’s rulings with respect to his
first (writ of mandate), fourth (declaratory relief), and fifth (declaratory relief) causes of
action.
After delays in the briefing schedule, the case was fully briefed on May 4, 2022,
and assigned to this panel on May 31, 2022. The court scheduled oral argument and the
case was argued and submitted on September 21, 2022.
DISCUSSION
I
Governing Law
A. Unconstitutional Conditions Doctrine
The takings clause of the Fifth Amendment, made applicable to the states by the
Fourteenth Amendment, “provides that private property shall not ‘be taken for public use,
without just compensation.’ ” (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 536
(Lingle).)
3 In denying the writ petition as to Sheetz’s claim under the Mitigation Fee Act, the trial
court initially rejected Sheetz’s contention that a local agency cannot impose a
development impact fee as a condition to the approval of a development project without
an individualized evaluation of the impact of the particular project on public facilities. In
so doing, the court concluded that only subdivision (a) of section 66001 applies, not both
subdivision (a) and (b) of the statute, as Sheetz had argued.
6
The United States Supreme Court has identified two general categories of takings:
“physical takings” and “regulatory takings.” (Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321.) Apart from these two
general categories of takings, the Supreme Court has also identified a “special” category
of takings claims for “land-use exactions.” (Lingle, supra, 544 U.S. at p. 538.) A land
use-exaction occurs when the government demands real property or money from a land-
use permit applicant as a condition of obtaining a development permit. (See Koontz v. St.
Johns River Water Management Dist. (2013) 570 U.S. 595, 599, 612, 616 (Koontz).) The
leading examples of “exactions” come from the Supreme Court’s decisions in Nollan,
Dolan, and Koontz.
In Nollan, the California Coastal Commission conditioned its grant of a permit to
landowners who sought to rebuild their house on their agreement to dedicate a public
easement across their beachfront property. (Nollan, supra, 483 U.S. at p. 827.) In Dolan,
a city conditioned its grant of a permit to a property owner who sought to increase the
size of her existing retail business on her agreement to dedicate a portion of her property
for flood control and traffic improvements. (Dolan, supra, 512 U.S. at p. 377.) And
most recently in Koontz, a water district conditioned its grant of a permit to a landowner
who sought to develop 3.7 acres of an undeveloped property on his agreement to either
reduce the size of his development to 1 acre and dedicate a conservation easement on the
remainder of the property (13.9 acres) or proceed with the development as proposed,
building on 3.7 acres and deeding a conservation easement on the remainder of the
property (11.2 acres), and pay money to improve certain public wetlands the water
district owned. (Koontz, supra, 570 U.S. at pp. 601-602.)
To determine whether these types of demands are impermissible, courts apply a
“special application of the ‘doctrine of “unconstitutional conditions.” ’ ” (Lingle, supra,544 U.S. at p. 547.) Under that doctrine, the government may not ask a person to give up
a constitutional right (e.g., the right to receive just compensation when property is taken
7
for a public use) “in exchange for a discretionary benefit conferred by the government
where the benefit sought has little or no relationship to the property.” (Dolan, supra, 512
U.S. at p. 385.) In applying the doctrine in the context of land-use exactions, particular
rules apply because of two competing realities surrounding land-use permits. On the one
hand, the government can take unreasonable advantage of landowners who seek a permit.
“By conditioning a building permit on the owner’s deeding over a public right-of-way,
for example, the government can pressure an owner into voluntarily giving up property
for which the Fifth Amendment would otherwise require just compensation.” (Koontz,
supra, 570 U.S. at pp. 604-605.) On the other hand, the government often has legitimate
interests in controlling or mitigating the effects of a particular development project.
“Where a building proposal would substantially increase traffic congestion, for example,
officials might condition permit approval on the owner’s agreement to deed over the land
needed to widen a public road.” (Id. at p. 605.) To accommodate these competing
realities, Nollan and Dolan establish that the government may condition approval of a
land-use permit on the landowner’s agreement to dedicate a portion of his property to the
public “so long as there is a ‘nexus’ and ‘rough proportionality’ between the property that
the government demands and the social costs of the [landowner’s] proposal.” (Id. at pp.
605-606.) Put another way, “[u]nder Nollan and Dolan the government may choose
whether and how a permit applicant is required to mitigate the impacts of a proposed
development, but it may not leverage its legitimate interest in mitigation to pursue
governmental ends that lack an essential nexus and rough proportionality to those
impacts.” (Id. at p. 606.)
The standard established in Nollan and Dolan for assessing takings claims in the
context of land-use exactions is commonly referred to as the “Nollan/Dolan test,” which
is viewed as a type of “ ‘heightened scrutiny.’ ” (Beach & Bluff Conservancy v. City of
Solana Beach (2018) 28 Cal.App.5th 244, 266.) The Nollan part of the test is the
“essential nexus” standard, i.e., there must be an “essential nexus” between the
8
government’s legitimate state interest and the exaction imposed. (Nollan, supra, 483
U.S. at p. 837.) The Dolan part of the test is the “rough proportionality” standard with
regard to the “degree of connection between the exactions and the projected impact of the
proposed development.” (Dolan, supra, 512 U.S. at p. 386.) The Dolan court concluded,
“No precise mathematical calculation is required, but the [government] must make some
sort of individualized determination that the required dedication is related both in nature
and extent to the impact of the proposed development.” (Id. at p. 391.)
In Koontz, the United States Supreme Court extended the Nollan/Dolan test to
“so-called ‘monetary exactions’ ” demanded by the government as a condition for a land-
use permit, that is, a monetary condition that is a substitute for the property owner’s
dedication of real property to the public which is intended to mitigate the environmental
impact of the proposed project. (Koontz, supra, 570 U.S. at pp. 612, 619.) Because these
“ ‘in lieu of’ fees are utterly commonplace” and “functionally equivalent to other types of
land use exactions,” the Supreme Court concluded that they too must satisfy the
“essential nexus” and “rough proportionality” requirements of Nollan and Dolan. (Id. at
p. 612.)
Under California law, only certain development fees are subject to the heightened
scrutiny of the Nollan/Dolan test. Our Supreme Court has held that the requirements of
Nollan and Dolan apply to development fees imposed as a condition of permit approval
where such fees are “ ‘imposed . . . neither generally nor ministerially, but on an
individual and discretionary basis.’ ” (San Remo Hotel L.P. v. City and County of San
Francisco (2002) 27 Cal.4th 643, 666-670 (San Remo Hotel); Ehrlich v. City of Culver
City (1996) 12 Cal.4th 854, 859-860, 866-867, 876, 869, 881 (Ehrlich) (plur. opn. of
Arabian, J.) [heightened scrutiny under the Nollan/Dolan test appropriate when monetary
exactions are imposed ad hoc on an individual basis due to greater risk of arbitrariness
and government abuse in such situations].) The requirements of Nollan and Dolan,
however, do not extend to development fees that are generally applicable to a broad class
9
of property owners through legislative action. As our Supreme Court has explained,
“legislatively prescribed monetary fees”--as distinguished from a monetary condition
imposed on an individual permit application on an ad hoc basis--“that are imposed as a
condition of development are not subject to the Nollan/Dolan test.” (California Building
Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 459, fn. 11 (CBIA), citing San
Remo Hotel, supra, 27 Cal.4th at pp. 663-671 [“The ‘sine qua non’ for application of
Nollan/Dolan scrutiny is . . . the ‘discretionary deployment of the police power’ in ‘the
imposition of land-use conditions in individual cases’ ”], and Santa Monica Beach,
Ltd. v. Superior Court (1999) 19 Cal.4th 952, 966-967 (Santa Monica) [only
individualized development fees--as distinguished from legislatively mandated, generally
applicable development fees--are subject to the Nollan/Dolan test].)
B. Mitigation Fee Act
Effective January 1, 1989, the Mitigation Fee Act (§ 66000 et seq.) provides “a
statutory standard against which monetary exactions by local governments subject to its
provisions are measured.” (Ehrlich, supra, 12 Cal.4th at p. 865.) It was enacted by the
Legislature “ ‘in response to concerns among developers that local agencies were
imposing development fees for purposes unrelated to development projects.’ ” (Id. at p.
864.) It provides uniform procedures for local agencies to follow in imposing
development fees. (Centex Real Estate Corp. v. City of Vallejo (1993) 19 Cal.App.4th
1358, 1361.)
The Mitigation Fee Act defines a development fee as “a monetary exaction other
than a tax or special assessment . . . that is charged by a local agency to the applicant in
connection with approval of a development project for the purpose of defraying all or a
portion of the cost of public facilities related to the development project . . . .” (§ 66000,
subd. (b).) “A fee shall not include the costs attributable to existing deficiencies in public
facilities, but may include the costs attributable to the increased demand for public
facilities reasonably related to the development project in order to (1) refurbish existing
10
facilities to maintain the existing level of service or (2) achieve an adopted level of
service that is consistent with the general plan.” (§ 66001, subd. (g).) “ ‘Public facilities’
includes public improvements, public services, and community amenities.” (§ 66000,
subd. (d).) Any party may protest the imposition of a development fee by tendering the
payment under protest and serving the governing body of the entity with written notice of
the payment and the factual and legal bases for the protest. (See § 66020, subd. (a).)
There are two ways that a local agency can satisfy the Mitigation Fee Act’s
“reasonable relationship” requirement for the imposition of development fees. Section
66001, subdivision (a) requires the local agency to determine how there is a “reasonable
relationship” between both “the fee’s use and the type of development project on which
the fee is imposed” and “the need for the public facility and the type of development
project on which the fee is imposed.” (§ 66001, subd. (a)(3), (4).)4 Section 66001,
subdivision (b) requires the more specific determination of a “reasonable relationship”
between “the amount of the fee and the cost of the public facility or portion of the public
facility attributable to the development on which the fee is imposed.”5
4 Section 66001, subdivision (a) provides: “In any action establishing, increasing, or
imposing a fee as a condition of approval of a development project by a local agency, the
local agency shall do all of the following: [¶] (1) Identify the purpose of the fee. [¶] (2)
Identify the use to which the fee is to be put. If the use is financing public facilities, the
facilities shall be identified. That identification may, but need not, be made by reference
to a capital improvement plan as specified in Section 65403 or 66002, may be made in
applicable general or specific plan requirements, or may be made in other public
documents that identify the public facilities for which the fee is charged. [¶] (3)
Determine how there is a reasonable relationship between the fee’s use and the type of
development project on which the fee is imposed. [¶] (4) Determine how there is a
reasonable relationship between the need for the public facility and the type of
development project on which the fee is imposed.”
5 Section 66001, subdivision (b) provides: “In any action imposing a fee as a condition
of approval of a development project by a local agency, the local agency shall determine
how there is a reasonable relationship between the amount of the fee and the cost of the
11
In Ehrlich, our Supreme Court concluded that the heightened scrutiny of the
Nollan/Dolan test applies to ad hoc monetary exactions imposed as a condition of
approving a development project by individual property owners. (Ehrlich, supra, 12
Cal.4th at pp. 881 (plur. opn. of Arabian, J).) There, the city had conditioned permits for
the development of a condominium complex on the site of a former private tennis club on
the owner’s agreement to pay a $280,000 fee to be used for city recreational facilities.
(Id. at pp. 861-863 (plur. opn. of Arabian, J.).) In holding that the fee at issue was subject
to the Nollan/Dolan test, a plurality of our high court emphasized that because the city
had exercised its discretionary powers in imposing and calculating the recreational
impact fee, rather than doing so pursuant to a legislative mandate or formula, imposition
of the fee bore much the same potential for illegitimate leveraging of private property as
did the real property exactions in Nollan and Dolan. The court concluded that the
heightened scrutiny of the Nollan/Dolan test is appropriate “[w]hen such exactions are
imposed . . . neither generally nor ministerially, but on an individual and discretionary
basis.” (Id. at p. 876 (plur. opn. of Arabian, J.).)
However, as we have noted ante, 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. (San Remo Hotel, supra, 27 Cal.4th at pp. 666-667, 669-671.) In San
Remo Hotel, our Supreme Court expressly declined to extend the Nollan/Dolan test to all
development fees, “adhering instead to the distinction [drawn] in Ehrlich . . . between ad
hoc exactions and legislatively mandated, formulaic mitigation fees.” (Id. at pp. 670-
671.) In doing so, the court explained: “While legislatively mandated fees do present
some danger of improper leveraging, such generally applicable legislation is subject to
public facility or portion of the public facility attributable to the development on which
the fee is imposed.”
12
the ordinary restraints of the democratic political process. 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.” (Id. at p. 671.)
The San Remo Hotel court emphasized that legislatively imposed development
impact fees that are not subject to the Nollan/Dolan test remain subject to the means-end
judicial review under the Mitigation Fee Act. (San Remo Hotel, supra, 27 Cal.4th at p.
671.) To be valid as a matter of both statutory and constitutional state law, such fees
must satisfy the “reasonable relationship” test embodied in the Mitigation Fee Act.
(Ibid.; see Enrlich, supra, 12 Cal.4th at pp. 865, 867 [“developers who wish to challenge
a development fee on either statutory or constitutional grounds must do so via the
statutory framework provided by the [Mitigation Fee] Act”].)
II
Demurrer
Sheetz contends the trial court erred in sustaining the demurrer as to his first,
fourth, and fifth causes of action. He argues that his first and fifth causes of action state
cognizable federal takings claims under the “unconstitutional conditions doctrine,” and
that his first and fourth causes of action state cognizable claims under the Mitigation Fee
Act. As we shall explain, we find no error.
A. Standard of Review
The function of a demurrer is to test whether, as a matter of law, the facts alleged
in the complaint state a cause of action under any legal theory. (Intengan v. BAC Home
Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.) We assume the truth of all
facts properly pleaded, as well as facts of which the trial court properly took judicial
13
notice. But we do not assume the truth of contentions, deductions, or conclusions of law.
Our review of the trial court’s decision is de novo. (Ibid.)
A trial court’s order sustaining a demurrer without leave to amend is reviewable
for abuse of discretion. (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064,
1072.) “If we find that an amendment could cure the defect, we conclude that the trial
court abused its discretion and we reverse; if not, no abuse of discretion has occurred.”
(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. First Cause of Action: Writ of Mandate
1. Unconstitutional Conditions Doctrine
Sheetz’s first cause of action for writ of mandate alleges that the TIM fee effects
an unlawful taking of property in violation of the special application of the
“unconstitutional conditions doctrine” established in Nollan and Dolan. On appeal,
Sheetz contends the trial court erred in concluding that the Nollan/Dolan test does not
apply to the fee as a matter of law. We disagree.
We conclude the trial court properly determined that the TIM fee is not subject to
the heightened scrutiny of the Nollan/Dolan test. The fee is not an “ad hoc exaction”
imposed on a property owner on an individual and discretionary basis. Rather, it is a
development impact fee imposed pursuant to a legislatively authorized fee program that
generally applies to all new development projects within the County. The fee is
calculated using a formula that considers various factors. Therefore, the validity of the
fee and the program that authorized it is only subject to the deferential “reasonable
relationship” test embodied in the Mitigation Fee Act. (San Remo Hotel, supra, 27
Cal.4th at p. 667; Ehrlich, supra, 12 Cal.4th at pp. 865, 867 (plur. opn. of Arabian, J.).)
Indeed, as our Supreme Court has explained, the heightened scrutiny of the Nollan/Dolan
test does not apply to legislatively mandated development impact fees that, as here,
generally apply to a broad class of permit applicants. (CBIA, supra, 61 Cal.4th at p. 459,
14
fn. 11, citing San Remo Hotel, supra, 27 Cal.4th at pp. 663-671; Santa Monica, supra,19 Cal.4th at pp. 966-967.)
We are unpersuaded by Sheetz’s contention that Koontz compels a contrary result.
We have carefully reviewed Koontz and agree with our Supreme Court that it “does not
purport to decide whether the Nollan/Dolan test is applicable to legislatively prescribed
monetary permit conditions that apply to a broad class of proposed developments.”
(CBIA, supra, 61 Cal.4th at p. 459, fn. 11.) Koontz involved an adjudicative, individual
and discretionary land-use determination, and the majority opinion does not address
whether the Nollan/Dolan test applies to legislatively mandated, generally applicable
formulaic development fees. As such, we find Sheetz’s reliance on Koontz misplaced.6
We are also unpersuaded by Sheetz’s suggestion that a different result is warranted
because Nollan and Dolan involved legislatively prescribed, generally applicable
6 In rejecting the argument that subjecting monetary exactions to the Nollan/Dolan test
would result in “no principled way of distinguishing impermissible land-use exactions
from property taxes,” the Koontz court explained that, because taxes and user fees are not
takings, the decision “does not affect the ability of governments to impose property taxes,
user fees, and similar laws and regulations that may impose financial burdens on property
owners.” (Koontz, supra, 570 U.S. at p. 615.) As Justice Mosk explained in his
concurring opinion in Ehrlich, many development fees bear a close resemblance to
various monetary exactions--excise taxes, assessment fees, and user fees--which courts
have granted considerable discretion to local governments to impose and have upheld
them against takings and related challenges. (See Ehrlich, supra, 12 Cal.4th at pp. 892-
896 (conc. opn. of Mosk, J.) [reasoning that development fees “are perhaps best
characterized as a special assessment placed on developing property” (id. at p. 896)].) As
such, Justice Mosk concluded that the Nollan/Dolan test is generally not applicable to
development fees; the test only applies “when the government engages in the physical
taking or invasion of real and personal property, or singles out individual property owners
by conditioning development permits on the payment of ad hoc fees not borne by a larger
class of developers or property owners.” (Ehrlich, at pp. 887-888 (conc. opn. of Mosk,
J.).) In short, because the monetary exaction in Koontz was not a generally applicable
development impact fee, the decision, in our view, cannot be read as compelling the
application of the Nollan/Dolan test to the fee at issue here.
15
exactions. In Lingle, the United States Supreme Court characterized Nollan and Dolan as
involving “Fifth Amendment takings challenges to adjudicative land-use exactions --
specifically, government demands that a landowner dedicate an easement allowing public
access to her property as a condition of obtaining a development permit.” (Lingle, supra,
544 U.S. at p. 546.) We find Nollan and Dolan to be of no assistance to Sheetz, as
neither case involved legislatively mandated, formulaic development impact fees that
applied to a broad class of proposed developments. Rather, both cases involved a real
property dedication condition imposed on an ad hoc basis upon an individual permit
application.
Equally misplaced is Sheetz’s reliance on Cedar Point Nursery v. Hassid (2021)
141 S.Ct. 2063, a case he cites for the first time in his reply brief. In Cedar Point, a
California regulation allowed representatives of a labor organization to enter an
agricultural employer’s property to solicit support for unionization for up to three hours
per day, 120 days per year. (Id. at p. 2069.) The United States Supreme Court held that
the regulation violated the takings clause because it “appropriate[d] a right to invade the
growers’ property and therefore constitute[d] a per se physical taking.” (Id. at p. 2072.)
The court reasoned that the regulation violated the right to exclude, which is “ ‘one of the
most treasured’ rights or property ownership.” (Ibid.) In concluding that the regulation
constituted a physical taking as opposed to a regulatory taking, the court explained that
the “essential question is not . . . whether the government action at issue comes garbed as
a regulation (or statute, or ordinance, or miscellaneous decree). It is whether the
government has physically taken property for itself or someone else—by whatever
means—or has instead restricted a property owner’s ability to use his own property.”
(Ibid.) “Thus, the Supreme Court has suggested that any government action, including
administrative and legislative, that conditionally grants a benefit, such as a permit, can
supply the basis for an exaction claim” under the unconstitutional conditions doctrine.
(Ballinger v. City of Oakland (2022) 24 F.4th 1287, 1299 [concluding that “ ‘[w]hat
16
matters for purposes of Nollan and Dolan is not who imposes an exaction, but what the
exaction does’ ”].)
Cedar Point is distinguishable. That case did not involve a generally applicable
development impact fee imposed by a local agency as a condition for a land-use permit.
Rather, it involved a state regulation that only applied to property owned by agricultural
employers. And Cedar Point does not purport to address whether the heightened scrutiny
of the Nollan/Dolan test applies to the circumstances presented here--a legislatively
mandated, formulaic development impact fee that applies to a broad class of proposed
developments. “It is axiomatic that cases are not authority for propositions not
considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) Thus, contrary to
Sheetz’s contention, Cedar Point does not abrogate the rule--by which we are bound--
that generally applicable development fees are not subject to the Nollan/Dolan test. (See
CBIA, supra, 61 Cal.4th at p. 459, fn. 11, citing San Remo Hotel, supra, 27 Cal.4th at pp.
663-671; Santa Monica, supra, 19 Cal.4th at pp. 966-967.)
2. Mitigation Fee Act
Sheetz’s first cause of action for writ of mandate alleges that the County violated
the Mitigation Fee Act because there is no “reasonable relationship” between the public
impact of his development project and the need for improvements to state and local
roads. On appeal, he contends the trial court erred in concluding that he could only state
a cognizable claim under subdivision (a) of section 66001, rather than under both
subdivision (a) and (b) of the statute. In making this argument, Sheetz insists that the
County was required to evaluate the specific traffic impacts attributable to his particular
project before imposing the fee. We disagree.
As noted ante, there are two ways that a local agency can satisfy the Mitigation
Fee Act’s “reasonable relationship” requirement for the imposition of development fees.
(§ 66001, subds. (a), (b).) Section 66001, subdivision (a) applies to quasi-legislative
decisions to impose development impact fees on a class of development projects, whereas
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section 66001, subdivision (b) applies to adjudicatory, case-by-case decisions to impose a
development impact fee on a particular development project. The difference between
these subdivisions is that only subdivision (b) of section 66001 requires an individualized
more specific determination of reasonableness for each particular project. (Tanimura &
Antle Fresh Foods, Inc. v. Salinas Union High School Dist. (2019) 34 Cal.App.5th 775,
791; Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th
320, 334-336.) As a panel of this court recently explained in the context of development
impact fees imposed to fund school facilities to accommodate the increase in students
likely to accompany new development: “For a general fee applied to all new residential
development, a site-specific showing is not required. Instead, this showing may be
derived from districtwide estimations concerning new residential development and
impact on school facilities. The school district is not required to evaluate the impact of a
particular development project before imposing fees. Instead, the required nexus is
established based on the justifiable imposition of fees on a class of development rather
than particular projects.” (AMCAL Chico LLC v. Chico Unified School District (2020) 57
Cal.App.5th 122, 127; see also Cresta Bella, LP v. Poway Unified School Dist. (2013)
218 Cal.App.4th 438, 447.) In short, we conclude the trial court properly determined that
section 66001, subdivision (b) does not apply to Sheetz’s development project.7
C. Fourth and Fifth Causes of Action: Declaratory Relief
Sheetz’s fourth and fifth causes of action for declaratory relief allege that the
County’s policy of requiring new development to pay the full cost of constructing new
7 Sheetz relies on Ehrlich and Walker v. City of San Clemente (2015) 239 Cal.App.4th
1350 in purported support of a contrary result. However, neither of those cases
discussed, let alone disagreed with, the relevant statutory analysis in Garrick. Nor did
either case expressly consider whether both subdivisions (a) and (b) of section 66001
apply to quasi-legislative local agency decisions to impose development impact fees on a
class of development projects. These cases do not inform the outcome here. (See
People v. Ault, supra, 33 Cal.4th at p. 1268, fn. 10.)
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roads and widening of existing roads without regard to the cost specifically attributable to
the particular project on which the fee is imposed resulted in an unlawful exaction of
$23,420. According to Sheetz, the County’s policy, “as applied” to him, violated the
Mitigation Fee Act and the “unconstitutional conditions doctrine.” On appeal, Sheetz
contends the trial court erred in determining that his fourth and fifth causes of action
failed as a matter of law because the sole remedy for “as applied” challenges to local
agency action is administrative mandamus, not declaratory relief. We disagree.
We conclude the trial court properly sustained the demurrer to the fourth and fifth
causes of action without leave to amend. It is well established that a declaratory relief
cause of action is an appropriate method for challenging a statute, regulation, or
ordinance as facially unconstitutional or otherwise invalid, but that administrative
mandamus is “the proper and sole remedy” to challenge a local agency’s application of
the law (e.g., application of a zoning ordinance to a particular property). (See, e.g.,
Hensler v. City of Glendale (1994) 8 Cal.4th 1, 13-14; Tejon Real Estate, LLC v. City of
Los Angeles (2014) 223 Cal.App.4th 149, 154-155; Rezai v. City of Tustin (1994) 26
Cal.App.4th 443, 448; City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718-
719; Taylor v. Swanson (1982) 137 Cal.App.3d 416, 418.)8
III
Petition for Writ of Mandate
Sheetz contends reversal is required because the TIM fee is invalid under both the
heightened scrutiny of the Nollan/Dolan test and the “reasonable relationship” test
embodied in the Mitigation Fee Act. According to Sheetz, the County’s failure to make
an individualized determination as to the traffic impacts specifically attributable to his
8 We need not and do not consider Sheetz’s contention that his first, fourth, and fifth
causes of action are timely. The trial court did not rule that any of those claims were
time-barred.
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development project resulted in a violation of the takings clause of the federal and state
constitutions as well as the Mitigation Fee Act.
For the reasons we have discussed, we reject this argument. The Nollan/Dolan
test does not apply to the legislatively prescribed generally applicable development
impact fee at issue here (see CBIA, supra, 61 Cal.4th at p. 459, fn. 11, citing San Remo
Hotel, supra, 27 Cal.4th at pp. 663-671; Santa Monica, supra, 19 Cal.4th at pp. 966-967),
and California law does not require an individualized or site-specific determination of
reasonableness for each particular project subject to the fee (see AMCAL Chico LLC v.
Chico Unified School District, supra, 57 Cal.App.5th at p. 127; Cresta Bella, L.P. v.
Poway Unified School Dist., supra, 218 Cal.App.4th at p. 447). As we next explain, we
also reject Sheetz’s remaining argument that the administrative record contains no
evidence establishing that the fee satisfies the “reasonable relationship” test embodied in
the Mitigation Fee Act.
A. Standard of Review
“The adoption of development impact fees under the Mitigation Fee Act is a
quasi-legislative act, which we review under the standards of traditional mandate.
[Citations.] ‘We determine only whether the action taken was arbitrary, capricious or
entirely lacking in evidentiary support, or whether it failed to conform to procedures
required by law.’ [Citations.] ‘The action will be upheld if the [local agency] adequately
considered all relevant factors and demonstrated a rational connection between those
factors, the choice made, and the purposes of the enabling statute.’ ” (Boatworks, LLC v.
City of Alameda (2019) 35 Cal.App.5th 290, 298.) “ ‘This issue is a question of law.
[Citation.] ‘ “On appeal, we independently review the agency’s decision and apply the
same standard of review that governs the superior court.” ’ ” (Walker v. City of San
Clemente, supra, 239 Cal.App.4th at p. 1362.)
“[T]he local agency has the initial burden of producing evidence sufficient to
demonstrate that it used a valid method for imposing the fee in question, one that
20
established a reasonable relationship between the fee charged and the burden posed by
the development.” (Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of
Lemoore (2010) 185 Cal.App.4th 554, 562 (City of Lemoore).) “However, the figures
upon which the public agency relies will necessarily involve predictions regarding
population trends and future building costs, and they need not be exact. [Citation.] ‘As a
practical matter it will not always be possible to fashion a precise accounting allocating
the costs, and consequent benefits, of particular building projects to particular portions of
the population. All that is required of the [agency] is that it demonstrate that
development contributes to the need for the facilities, and that its choices as to what will
adequately accommodate the [new population] are reasonably based.’ ” (Boatworks,
LLC v. City of Alameda, supra, 35 Cal.App.5th at p. 298.)
“If the local agency does not produce evidence sufficient to avoid a ruling against
it on the validity of the fee, the plaintiff challenging the fee will prevail. However, if the
local agency’s evidence is sufficient, the plaintiff must establish a requisite degree of
belief in the mind of the trier of fact or the court that the fee is invalid . . . .” (City of
Lemoore, supra, 185 Cal.App.4th at p. 562.) “In general, the imposition of various
monetary exactions, such as . . . impact fees, is accorded substantial judicial deference.
[Citation.] In the absence of a legislative shifting of the burden of proof, a plaintiff
challenging an impact fee has to show that the record before the local agency clearly did
not support the underlying determinations regarding the reasonableness of the
relationship between the fee and the development.” (Ibid.)
B. Analysis
We begin by noting that Sheetz relies only on a select few pages from the more
than 5,000-page administrative record in support of his writ of mandate cause of action,
as he did in the trial court. Having reviewed those portions as well as the broader
administrative record, we find no error in the denial of the petition for writ of mandate.
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As relevant here, the administrative record discloses that the County’s adoption of
the 2004 General Plan was guided by policies that limit traffic congestion, including
policies that ensure that roadway improvements are developed concurrently with new
development and paid for by that development and not taxpayer funds. In September
2005, the County adopted the interim 2004 General Plan traffic impact mitigation fee
program (i.e., the TIM fee program), which implemented the transportation and
circulation policies of the general plan and set forth the fee rates (that must be updated
annually) imposed at the building permit stage to mitigate the effects of each type of new
development (e.g., single-family residence) in the County’s eight geographical fee
zones.9 The interim program was adopted after the County considered the information
contained in a technical report prepared by the DOT and studies analyzing the impacts of
contemplated future development on existing public roadways and the need for new and
improved roads as a result of the new development.
In August 2006, the County amended the general plan to permanently adopt the
TIM fee program with adjusted new fee rates. This amendment occurred following the
DOT’s preparation of a detailed memorandum explaining the purpose of the fee, the use
to which the fee was to be put, and the methodology used to calculate the fee rate for
each type of new development. The memorandum indicated that the fee rates were
developed after consideration of a variety of factors, including the expected increase in
9 The TIM fee program was adopted to implement measure TC-B of the 2004 General
Plan, which requires the County to adopt impact fees to mitigate roadway impacts from
new development. That policy states, in part, that the “traffic fees should be designed to
achieve the adopted level of service standards and preserve the integrity of the circulation
system.” As part of the process to implement the general plan, the County’s Department
of Transportation (DOT) led several interrelated studies to determine traffic projections,
specific roadway improvement needs and projected costs, existing funding and funding
sources, and a proposed TIM fee rate specific to eight fee zones and various types of new
development.
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traffic volumes (average daily vehicle trips) from each type of new development. To
estimate the vehicle trips or trip generation rates attributable to new development
projects, the County relied on data published in the Institute of Transportation Engineers
Trip Generation Manual, 7th Edition.10 Prior to the adoption of new fee rates in 2012,
including the fee rate at issue here, the DOT explained the methodology it used to adjust
the rates.
We conclude the County met its initial burden to demonstrate that it used a valid
method for imposing the TIM fee, one that established a reasonable relationship between
the fee charged and the burden posed by Sheetz’s development of a single-family
residence in geographic Zone 6. The record reflects that the County considered the
relevant factors and demonstrated a rational connection between those factors and the fee
imposed. We further conclude Sheetz has failed to show that the record before the
County clearly did not support the County’s determinations regarding the reasonableness
of the relationship between the fee and his development project. The limited portions of
the record relied upon by Sheetz do not demonstrate that the fee was arbitrary, entirely
lacking in evidentiary support, or otherwise invalid.
10 In amending the 2004 General Plan to permanently adopt the TIM fee program, the
County concluded that “[t]he facts and evidence presented in the reports, analyses, and a
public hearing . . . establish that there is a reasonable relationship between the need for
the described public facilities and the impacts of the types of development described, for
which the corresponding fee is charged.” The County also concluded that “[t]he facts
and evidence presented in the reports, analyses, and a public hearing . . . establish that
there is a reasonable relationship between the fee’s use and the type of development for
which the fee is charged.”
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DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Earl, J.
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