Mitigation Fee Act May Not Require Specific Identification Of New Facilities


On June 9, 2010, a panel of the Fifth Appellate District rejected challenges by a builders association to six out of seven "development fees" recently adopted by the City of Lemoore. The Mitigation Fee Act (Government Code § § 66000 – 66025) requires that a local agency seeking to establish or impose development fees to finance public facilities must "identify" the new public facilities purportedly justifying the fees. Two justices held that the City had satisfied these statutory requirements by adopting a consultant's report that listed examples of the "types" of new facilities that the City may in the future decide to construct to accommodate growth from new developments, but the third justice wrote separately to question whether such lack of specificity complied with the statute.

The City's new "fire protection facilities fee," in contrast, was invalidated because the City's own evidence acknowledged that new development would not add to the burden on the existing fire protection facilities in the service area for which the fee was imposed, and the proposed use of the fee to repay the City's general fund was not a legally valid use of development fees.

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