Gomes v. Ukiah Unified Scghool Dist.
Gomes v
Gomes v.
Ukiah Unified Scghool Dist.
Filed 1/30/07 Gomes v. Ukiah Unified Scghool Dist. CA1/4
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California Rules of
Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FOUR
STEVEN L. GOMES et al.
Plaintiffs and
Appellants,
v.
UKIAH UNIFIED SCHOOL DISTRICT
et al.
Defendants and
Respondents.
|
A113062
(Mendocino County Super. Ct.
No. SCUKCVPT 01-86587)
|
Appellants
Steven L. Gomes and Premier Design & Construction, Inc. (Gomes), real
estate developers, challenged a school facilities fee imposed by respondent Ukiah Unified School District
(District). In a prior appeal, we reversed because the District had failed to
identify the use to which the fee would be put, as required by law. (Gomes
v. Ukiah Unified School Dist. (Nov. 10, 2004, A104744) [nonpub. opn.] at pp.
10-13, 15 (Gomes II).) The District’s fee resolution did, however,
recite that the fees would be used for “construction and/or reconstruction of
school facilities as identified in the plan,” and made reference to
“applications and related documents filed with the State Allocation Board . . .
(. . . referred to as the ‘Plan.’)” Because “the Plan” was not in
the record we could not determine what it was, or whether the fee exceeded the
reasonable cost of the facilities for which it was imposed. We therefore
remanded for the limited purpose of giving the District the opportunity to
produce the plan referred to in the resolution; we directed the trial court to
determine whether there was a “Plan,” and whether the fees exceeded the reasonable
costs of the “Plan.” (Id. at pp. 13-14, 15.)
On
remand, the District produced the documents from the files of the State
Allocation Board. These documents did not constitute a plan, as had been
recited in the resolution. Nevertheless, over Gomes’s objection, the trial
court reopened the proceedings to allow the District to prove a plan based upon
other documents and explanatory testimony. Five years after adoption of the
fee resolution—and more than four years into this litigation—the District
claimed for the first time that the plan for which the fee would be used was
the construction of a new 600-pupil elementary school.
The
trial court should not have permitted the introduction of testimony and a new
set of documents to prove a newly-minted theory to justify the District’s fee.
This kind of post hoc rationalization fails to conform to the procedures
required by law. Moreover, although the District is entitled to rely on public
documents to identify the facilities for which the fee will be used, the
“applications and related documents filed with the State Allocation Board”
(relied upon by the District in adopting the fee) do not comprise any
decipherable “Plan” for any facilities. Accordingly, we reverse the judgment
and remand the matter to the trial court with orders to issue the peremptory
writ of mandate.
I. SCHOOL IMPACT FEES
School districts are
authorized to levy a fee against new development in the district in order to
fund the construction or reconstruction of school facilities. (Ed. Code, §
17620, subd. (a)(1).) Pursuant to Government Code, section 66001, subdivision
(a), “[i]n any action . . . imposing a fee,” the district must do
four things: First, it must identify the purpose of the fee. Second, it must
identify the use to which the fee will be put. If the use is financing public
facilities, the facilities must be identified; however, the district may
identify the facilities by reference to a capital improvement plan, to
facilities identified in applicable general or specific plans, or to other
public documents “that identify the public facilities for which the fee is
charged.” Third, the district must determine how there is a reasonable
relationship between the fee’s use and the type of development project on which
the fee is imposed. Fourth, the district must determine how there is a
reasonable relationship between the need for the public facility and the type
of project on which the fee is imposed. School districts are limited by
statute in the amount of fees they can establish; in 2000 the maximum amount
was $2.05 per square foot, an amount subject to an inflation adjustment every
two years. (Gov. Code, § 65995, subd. (b)(1), (3).)
Development fees are
permissible, and not forbidden as a special tax, “if the amount of the fees
bears a reasonable relation to the development’s probable costs to the
community and benefits to the developer.” (Sinclair Paint Co. v. State Bd.
of Equalization (1997) 15 Cal.4th 866, 875; Gov. Code, § 50076 [excluding
from definition of “special tax” fees that do not exceed reasonable cost of
providing service for which fee is charged and which are not levied for general
revenue purposes].) If the fee is challenged on the ground that it is actually
a special tax, the agency has the burden of producing evidence to show that the
development fee does not exceed the cost of the service, facility, or
regulatory activity for which it was imposed. (Gov. Code, § 66024, subd. (a); Carlsbad
Mun. Water Dist. v. QLC Corp. (1992) 2 Cal.App.4th 479, 485 (Carlsbad).)
II. BACKGROUND OF THE CASE
A. Imposition
of the Fee and First Ruling on the Petition
The District has
imposed school impact fees on development at least since 1987. The District
increased school impact fees to $2.05 per square foot of new residential
development by resolution on October 10, 2000. The resolution included
findings that enrollment in district schools exceeded capacity, that additional
development would increase the need for school facilities, and that the fees
would not exceed the estimated amount required to provide funding for the
construction or reconstruction of school facilities.
The
fee resolution also recited the following: “This [School] Board hereby finds
that prior to the adoption of this resolution, the Board conducted a public
hearing . . . . By way of such public meeting, the Board
received oral and written presentations by district staff which are summarized and
contained in the district’s Developer Fee Implementation Study dated September
25, 2000, and the district’s application and related documents filed with the
State Allocation Board pursuant to the State School Facility Program (herein
referred to as the ‘Plan’) and which formed the basis for the action taken
pursuant to this resolution. [¶] . . . [¶] . . . The fees
proposed in the plan and implemented pursuant to this resolution will be used
for the construction and/or reconstruction of school facilities as identified
in the plan.”
The
record in the first appeal did not contain any documents filed with the State
Allocation Board (SAB).[1] It did, however, contain the September 2000 “Developer Fee
Justification Study for Ukiah Unified School
District” (the 2000 study), prepared by
Jack Schreder & Associates. According to the 2000 study, the District’s
capacity was 6,836 students from kindergarten through 12th grade, with
enrollment at 6923—exceeding the District’s capacity by 87 students overall.
The elementary schools, however, were 483 pupils over capacity; the junior high
schools had 662 excess capacity, and the high schools were 266 over capacity.
The study then projected enrollment over the next 10 years, using the cohort
survival method based on four years of enrollment data designed to identify the
probability that a student will survive from one school year to the next. The
2000 study estimated that enrollment would grow from 6,923 in the 1999-2000
school year to 7,229 in the 2009-2010 school year—an increase of 306 students
over a 10-year period, reflecting an average annual growth rate of less than one-half
of 1 percent. More than 100 percent of the increase (366 students by year
10) was expected to occur at the elementary school level, while the junior high
schools would have excess capacity—ranging from 599 to 703 seats—throughout the
entire 10-year period.
The
2000 study then calculated the per-student cost of construction of three
hypothetical new schools sufficient to house 3,000 students (an elementary
school for 600 students, a junior high school for 900 students, and a high
school for 1,500 students). The facility costs were based upon “State cost
formulas.” The 2000 study did not identify, either in the study itself or by
reference to other public documents, any facilities actually planned to be
constructed. Nor did it identify any facilities designed to meet the need
identified (306 students total or 366 elementary students). Nor did it
examine whether the District’s excess capacity could be reconfigured to meet
its facility needs. Rather, it simply took the cost of building three
prototypical schools, divided it by the total number of students these schools
would theoretically house, and determined that the cost to build the three schools
would be $15,304 per student which translates to $6.12 per square foot of new
housing. On this basis the 2000 study concluded that any fee under $6.12 per
square foot would be legally justified.
Pursuant
to the October 2000 resolution, the District levied school impact fees on Gomes
with respect to lots in the West Fork Estates Subdivision. Gomes paid the fees
under protest. (Gov. Code, § 66020.) According to Gomes, those payments were
made between February 7, 2001, and January
31, 2002, and totaled more than
$112,000.
Gomes then filed this
action in the Mendocino County Superior Court, asking the court to declare the
fees invalid, to direct the District to vacate the resolutions imposing
developer fees, to set aside the imposition of fees on Gomes, and to cease
collecting the fees until it proved that the statutory requirements for
imposition of the fees had been satisfied. The second amended petition
included two causes of action alleging that the fees exceeded the reasonable
costs of providing the facilities for which they were imposed and therefore
constituted an unauthorized special tax.
The trial court denied
the petition on September 18, 2003, concluding that the administrative record
supported the District’s projection of total housing, that the District had
made a rational assessment of the number of students generated by new housing,
that the District had made a cost estimate per student, and that the District’s
enrollment exceeded its capacity when it made its findings.
B. Reversal on First Appeal
In
our first opinion we concluded that the District had adequately estimated new
development would produce .762 students per housing unit, and that the District
had adequately estimated the need to accommodate 306 additional school children
over a 10-year period. It was therefore reasonable for the District to conclude
that the new development would contribute to the need for additional school
facilities. (Gomes v. Ukiah Unified School Dist. (Sept. 20, 2004,
A104744) [nonpub. opn.] at pp. 5-8 (Gomes I).) But we reversed the
trial court’s determination that the fee resolution satisfied all legal
requirements. (Id. at p. 15.) We reached this conclusion because
neither the 2000 study nor the District’s resolution identified any facility
for which the fee was imposed. (Id. at pp. 10-13.)[2]
As
we explained: “The resolution adopting the fee recites that it is based
on staff presentations that were summarized in the 2000 study and on ‘the
[D]istrict’s application and related documents filed with the State Allocation
Board pursuant to the State School Facility Program (herein referred to as the
“Plan”).’ But the record does not contain the plan referred to in the
resolution, and it is not otherwise described. Rather, the District argues
that the plan is a ‘public document[]’ to which reference was made in the
resolution, and therefore it has satisfied the requirements of Government Code
section 66001, subdivision (a)(2).[[3]] The problem with this argument is that
nothing in the record connects the fee calculation with the District’s
facilities plan. Instead, the impact fee was based solely upon prototype ‘State cost formulas’ for
building new schools. The 2000 study simply translates these cost
formulas—which provide estimates of the costs to build a new high school for
1,500 students, a new middle school for 900 students and a new elementary
school for 600 students—into a per-student cost for ‘new facilities.’[[4]] Thus, the fee is predicated upon the
cost of building new facilities for 3,000 new students, while the increased
enrollment over a 10-year period is projected to be a total of 306
students. The study neither describes nor estimates the cost of new
construction or reconstruction of facilities for these 306 new students.” (Gomes I, supra, at p. 10.) “[I]t
is the District’s burden to establish that the fee does not exceed the cost of
the facility for which it is imposed. (Gov. Code, § 66024, subd. (a); Beaumont
Investors v. Beaumont-Cherry Valley Water Dist. (1985) 165 Cal.App.3d 227,
235-236.) To satisfy that burden the District must not only quantify the
projected amount of new housing and the number of students expected to be
generated, but must also ‘estimate what it will cost to provide the necessary
school facilities for that approximate number of new students.’ (Shapell
[Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218,] 235,
italics added [Shapell].) On this record we must conclude the District
has not met its statutory burden.” (Id.
at p. 13.)
We
reversed and remanded, directing that the trial court order the District to
recalculate the fee, “based upon the facts available at the time of the
imposition of the original fee,” and using “an adequate analysis to show that
the fee will not exceed the estimated reasonable cost of providing facilities
for the total number of new students projected to be added.” (Gomes I,
supra, at pp. 14, 15.)
C. Proceedings After Issuance of First Opinion
Gomes
then filed a petition for rehearing and/or modification regarding instructions
on remand. In it Gomes argued that (1) this court should not allow the District
to supplement the record on remand, but should have ruled on the validity of
the fee based on the record presented; or (2) this court should clarify
how the matter should proceed upon remand in a way that protects Gomes’s due
process rights. The District countered with the contention that a remand to
the District for a recalculation of the fee would be appropriate, as had
occurred, for example, in Ehrlich v. City of Culver City (1996) 12
Cal.4th 854, 885. The District also submitted to this court a copy of its 1999
facilities plan as evidence that a facilities plan was in existence at the time
the District passed the resolution.[5]
After
considering Gomes’s arguments and the District’s responses, we concluded it
would be inappropriate to invalidate the fee without giving the District the
opportunity to demonstrate—as it had argued in its brief—that there was, in
fact, a “Plan” filed with the SAB upon which the resolution was based that
would justify the fee. We rejected the District’s suggestion that the matter
be remanded in the first instance to the District for recalculation of the fee,
as had occurred in Ehrlich, because the District had not yet identified
the plan which “formed the basis for [its] action.” We also agreed with Gomes
that direction was needed to govern and limit the further proceedings to avoid
an open-ended relitigation of the matter. We therefore modified the opinion to
include these directions on remand: “The trial court shall order the
District to submit the actual Plan referred to and relied upon in its
fee resolution. The trial court shall then conduct an analysis of whether the
fee imposed exceeded the estimated reasonable cost of providing the facilities
identified in the plan. If there was no plan, or if no fees can be justified
based upon the plan, the fee resolution must be vacated and the fees refunded
in full, with interest. If the trial court determines the plan justifies a fee
in some other amount, it may take any further procedural steps it deems
necessary to ensure compliance with the requirements of the statutes, including
a remand to the District, if necessary, for a redetermination of the fee based
upon the plan relied upon at the time the District adopted its original
resolution.” (Gomes II, supra, at pp.
13-14.)
D. Proceedings After Remand
On
remand, the trial court ordered the District to produce “ ‘the District’s
application and related documents filed with the State Allocation Board
pursuant to the State School Facility Program’ generally referred to as ‘The
Plan.’ ” The District filed its response to that order, stating, “The
Plan is attached.” The attachments were a series of documents, none of which
reflects a facility plan of any kind.[6]
Declaring
it could not understand the documents, the trial court set the matter for
hearing, and ordered that briefs and/or supplemental records be filed six days
prior to the hearing. The District thereafter filed 23 additional exhibits.
With the exception of three pages, none of the documents had been filed with or
submitted to the SAB. The new documents showed that the District had been
working since 1992 on a plan to build a new elementary school. In its brief the
District argued—for the first time in this litigation—that this new
school was “the Plan” for purposes of the fee resolution.
A
hearing was held at which the District introduced the additional documents as
well as testimony from two witnesses, over the objection of Gomes. The case
was argued and submitted, and the court ruled from the bench. The trial judge
stated that the evidence presented to the court justified the amount of the fee,
that he was “satisfied that that same information was before the [school] board
when they made their decision,” and that there was a “rational basis” for the
fee assessment.
Judgment
was entered and Gomes filed this appeal.
III. STANDARD OF
REVIEW
We
have already determined that the District acted reasonably in estimating the
need to accommodate 306 additional school children over a 10-year period and in
estimating that new development would produce .762 students per housing unit.
(Gomes II, supra, at pp. 5-8.) The only issues remaining are
whether, in imposing the fee, the District adequately identified “the use to
which the fee [will] be put,” as required by Government Code section 66001,
subdivision (a)(2); and if so, whether the District carried its burden of
producing evidence to show that the development fee does not exceed the cost of
the facilities for which it was imposed, as required by Government Code section
66024, subdivision (a). (See Carlsbad, supra, 2 Cal.App.4th at p. 485.)
In
deciding these issues, we determine whether the District’s action was
arbitrary, capricious or entirely lacking in evidentiary support or whether it
failed to conform to the procedures required by law. (Garrick, supra, 3
Cal.App.4th at p. 328.) “With respect to these questions the trial and appellate
courts perform essentially the same function, and the conclusions of the trial
court are not conclusive on appeal.” (Lewin v. St. Joseph Hospital of
Orange (1978) 82 Cal.App.3d 368, 387.)
As
we stated previously: “We are ever mindful that it is not the province
of the courts to second guess the wisdom of a quasi-legislative act. (California
Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200,
211-212.) And we are keenly aware that it is not our role to evaluate the
District’s methods or substitute different choices, where the issues are
‘ “fairly debatable.” ’ (Shapell, supra, 1 Cal.App.4th at
p. 239.) But, as the court stated in Shapell, ‘[w]e cannot agree
that local legislation, particularly that which results in the imposition of
substantial fees on property owners as a condition of improving their property,
should be virtually immune from effective judicial review. If courts shun
evidentiary review as beyond their province, the reasonableness of the agency’s
action is relegated to the agencies themselves, whose primary interest is in
financing their own projects.’ (Id. at p. 232.) It is thus this
court’s responsibility to ‘ “ensure that an agency has adequately
considered all relevant factors, and has demonstrated a rational connection
between those factors, the choice made, and the purposes of the enabling
statute.” ’ (Ibid.)” (Gomes II,
supra, at p. 12.)
IV. DISCUSSION
A. The District
Should Not Have Been Permitted to Present Evidence Beyond
the Scope of the Remand Order
When
we remanded this case to the trial court, we strictly limited the scope of the
further proceedings in order to preclude a complete relitigation of the matter,
as follows: “The trial court shall order the District to submit the actual
Plan referred to and relied upon in its fee resolution.[[7]] The trial court shall then conduct an
analysis of whether the fee imposed exceeded the estimated reasonable cost of
providing the facilities identified in the plan. If there was no plan [italics added], or if no fees can be justified
based upon the plan, the fee resolution must be vacated and the fees refunded
in full, with interest. If the trial court determines the plan justifies a fee
in some other amount, it may take any further procedural steps it deems
necessary to ensure compliance with the requirements of the statutes
. . . .” (Gomes II,
supra, at pp. 13-14.) Unfortunately,
the remand was fraught with procedural errors.
Step
one was duly completed: The District produced the documents filed with the
SAB, identified as “the Plan.” In a masterful understatement, the District has
conceded that the characterization of these documents as a plan was “not the
best choice of words.” Indeed, none of the documents, either singly or as a
whole, can remotely be described as a “Plan.” They contain no plan for the
construction or reconstruction of school facilities. They contain no cost
figures. More specifically, as it pertains to the fee resolution under review,
they contain no facilities plan to house the approximate number of new students
anticipated to arrive due to new development between 2000 and 2010. The
documents are merely a series of applications seeking eligibility for state
funding for various proposed projects, virtually all for modernization of
classrooms. There is a single application for eligibility for new construction
funds, but it does not identify any project or plan. That should have
put an end to the matter.
Despite
the District’s failure to produce anything resembling a plan as referenced and
relied upon in its fee resolution, the trial court set the matter for a further
hearing and ordered that briefs and/or supplemental records be filed six days
prior to the hearing. Having been given a new lease on the litigation, the District
effectively abandoned its claim that the documents filed with the SAB
constituted a plan. The District instead relied upon a completely different
set of documents dating from 1992, together with extrinsic testimony, to prove
a previously unidentified purpose for the fee—the “plan” to build a new
elementary school. The District argued that the new batch of documents was
admissible under Government Code section 66001, subdivision (a)(2), which
provides that a school district may identify “the use to which the fee is to be
put” by reference to “other public documents.”
Gomes
objected. Citing our instructions, Gomes correctly argued that because there
was no plan among the documents filed with the SAB, no further proceedings were
needed and no additional evidence was permitted.
After
a lengthy argument, the trial court overruled Gomes’s objections, stating “the
rule is pretty simple. If it was before the school board in any capacity,
then it’s admissible here and I need to hear it because the Court of Appeal . . .
said the problem is they didn’t connect the fee calculation with the district’s
facilities plan. . . . And that’s what we need to explore.” (Italics
added.) The District was therefore permitted to introduce numerous documents
and extensive testimony in support of its new contention that the purpose of
the fee was to build a new elementary school. By the end of the hearing the
trial court had completely lost sight of the issue on remand. It stated:
“[T]he only issue before the Court, as we well know, is that the district must
basically justify how they reached the fee that they did.” The court concluded
there was a “rational basis” for the fee and denied the petition anew. So,
instead of determining whether the documents filed with the SAB constituted “a Plan,”
as we had directed, the trial court conducted a de novo hearing to allow the District
to prove, through new evidence, that it had a (heretofore undisclosed) plan for
the fees. This rescoping of the proceedings on remand was error, and was
promoted by the District’s inaccurate description of the issue on remand.
In
a lengthy colloquy at the outset of the hearing, the court wondered aloud how
to proceed and asked counsel for their interpretations of this court’s order. Gomes’s
counsel responded, “all I can base my position on is the opinion of the Court
of Appeal that said if there was no plan or if no fees can be justified based upon
the plan, then the fee resolution must be vacated . . . .” The District’s
counsel, in contrast, characterized the issue to be determined on remand in
this way: “The problem was in the original record, there was nothing which
said the fee was for Grace Hudson [Elementary School]. . . . Nothing
said in the record that was sent to the appellate court, ‘The fee is designed
to build this school.’ [¶] And that’s what the—they said, you know, ‘What are
you going to do with the money you’re getting?’ And they said the record
doesn’t reflect that. And therefore, they sent it back down here so that we
can demonstrate what the purpose of the money was for.” (Italics added.)
Similarly, in its brief below the District argued “the question of the
Appellate Court [is] what was the plan for the developer fee money?” (Italics
added.) But that was not our question. Our question was whether the District
could produce the plan which “formed the basis for the action taken” in the
resolution, i.e., the plan purportedly contained in documents on file with the
SAB. Our question was not whether the District could prove—five years after
the fact—a plausible justification for the fee, but whether the District had
complied with legal requirements when it imposed the fee. The trial court thus
erred in allowing a new trial on the issue of whether the District could prove any
rational basis for the fee.
B. There Is No
Competent Evidence to Support the District’s Theory That the
New Documents Formed the Basis for Its
Action
Even
assuming the District should have been permitted to introduce evidence outside
both the record and the scope of the remand order, the evidence it presented
does not prove it conformed to the procedures required by law.[8] The District argues that it can satisfy Government
Code section 66001, subdivision (a)(2) by identifying “the use to which the fee
will be put” in court by reference to public documents. The District
misreads the statute. This section requires a school district to identify how
the fee will be used—and allows it to do so by reference to public documents—“[i]n
[its] action establishing . . . or imposing a fee.” (Ibid.)
The statute mandates that a school district identify how it will use the fee at
the time the fee is imposed. Here, the District identified “the Plan” for
which the fee would be used by reference to a specific set of public documents,
the SAB documents. It now argues it is entitled to show a previously
unidentified use for the fee by reference to an entirely different set
of public documents. Such a reading of the statute would subvert the core
purpose of the statutes requiring a local agency to justify the need for a fee
before it is imposed. It would also deprive the public of any meaningful
opportunity to challenge the justification for the fee before the fee is
imposed. It was precisely for these reasons that our remand required the District
to produce “the actual Plan referred to and relied upon in its fee
resolution.” (Gomes II, supra, at p. 13.) The District should not
have been permitted to introduce evidence of a plan by reference to public
documents that did not “form[] the basis for [its] action.”[9]
Nor
did the District confine itself to “public documents” to reveal the new plan; it
resorted to the testimony of the former employee who had drafted the fee
resolution. She stated it was her “understanding [and] belief” that the fee
imposed would be used to build the new elementary school. But there is no
evidence she communicated this to the school board before its vote. In fact,
the witness admitted she did not provide to the school board members any
documents—other than the agenda, the fee resolution and the 2000 study—that
constituted “the Plan” prior to its vote on the resolution, and she could not
recall any oral presentation she might have made. Accordingly, the employee’s
understanding is of no relevance to establish the meaning of the resolution.[10] (City of King City v. Community Bank of Central
California (2005) 131 Cal.App.4th 913, 924, fn. 5; Western
Contracting Corp. v. State Bd. of Equalization (1974) 39 Cal.App.3d 341, 346-347.)
In
short, neither the testimony nor the documents admitted over Gomes’s objections
were probative of the District’s contention that it had identified, in its
action imposing the fee, the facilities for which the fee would be used.
C. The Documents
Filed with the SAB Are Not Understandable as a Plan to
Build a New Elementary School
Finally, the District contends that its
resolution does make reference to the plan for the new elementary
school. The District admits that the resolution does not “specifically and
directly state the money would be used for the new elementary school,” but
argues that the resolution “does reference it in an indirect fashion.” The District
then makes a herculean effort to forge a link between the documents filed with
the SAB and the “Plan” for a new elementary school supposedly contained in the
resolution. We have serious doubts as to the District’s claim that the SAB
documents refer to the construction of any new elementary school.[11] But there is a more fundamental
issue: whether the public documents relied upon by the District in imposing
the fee meaningfully informed the public—including those who will pay the
fees—of a “Plan” of any kind. As the District itself described it, the
plan for the use of the fee is “referenced by an application which doesn’t mean
anything to anybody except somebody who really knows what they’re talking
about.”
We do not read Government Code section 66001,
subdivision (a)(2) to allow a district to identify the facilities for which a
fee will be imposed by reference to public documents that cannot be understood
by a reasonably intelligent person. That the SAB files are indecipherable by
the average reader is demonstrated by two salient facts: The trial judge
himself stated he could not understand them; and the District needed the
testimony of a lay witness, an expert witness, and numerous collateral documents—most of which were not
contained in the original administrative record—to decrypt the SAB papers.
The statute is both clear and broad. In any
action imposing a fee, a school district must identify the facilities
for which the fee will be used, and may identify them “by reference to a
capital improvement plan as specified in Section 65403 or 66002, . . .
in applicable general or specific plan requirements, or . . . in
other public documents that identify the public facilities for which the fee is
charged.” (Gov. Code, § 66001, subd. (a)(2).) The District chose to
identify the facilities by reference to the 2000 study, and “the Plan”
contained in “the district’s application and related documents filed with the
State Allocation Board.” We have already concluded the 2000 study did not
identify a facilities plan, or estimate costs for a plan, to house the
approximate number of new students (306) that will be added by new development
over a 10-year period. The only remaining question was whether the other public
documents referenced in the District’s resolution—the documents filed with the
SAB—would identify a facilities plan for that approximate number of students
and, if so, whether the fee exceeded the cost of providing those facilities.
The SAB documents unquestionably do not constitute a facilities plan of any
kind, nor did the trial court so find. Instead, the court considered whether
the fee was justified based upon the new evidence submitted by the District. Whether
the District successfully proved a new theory to justify the fee—on this
record, a matter subject to serious debate—is not before us.
V.
CONCLUSION
School
districts enjoy great latitude in imposing facilities fees against new
development, and for good reason. “[I]t is ‘only fair’ that the public at
large should not be obliged to pay for the increased burden on public facilities
caused by new development . . . .” (Shapell, supra, 1
Cal.App.4th at p. 234.) Still, school districts are required by law to
identify how the fee will be used and to articulate not a perfect, but a
satisfactory, nexus between the fee being imposed and the facility needs that
will be generated by the students from the new homes. This must be done “[i]n
any action establishing . . . or imposing a fee” (Gov. Code, § 66001,
subd. (a)), not five years later. If a district does not identify how the fee
will be used when it takes the action establishing the fee, it has not
satisfied its statutory obligations. And without an adequate description of
the “use to which the fee [will] be put” (Gov. Code, § 66001, subd. (a)(2)), a
district cannot carry its burden of producing evidence to show that the
development fee does not exceed the cost of the facility for which it was
imposed (id., § 66024, subd. (a)). We are not here second-guessing a
policy decision or a factual determination that is fairly debatable. We are concluding
that the statutes granting the power to impose monetary exactions also impose specific
requirements in the exercise of that power which have not been met here.
VI. DISPOSITION
The
judgment is reversed. The matter is remanded with directions to issue a
peremptory writ of mandate
invalidating the October 2000 fee resolution, and ordering the District to
refund to Gomes all fees collected pursuant to that resolution with interest
thereon as prescribed by Government Code section 66020, subdivision (f)(1).
RIVERA,
J.
We concur:
_
RUVOLO, P.J.
_
REARDON, J.
Publication Courtesy of California
attorney referral.
Analysis and review provided by Vista Property line attorney.
[1] On our own motion, we take judicial notice of the
record in the first appeal.
[2] We also recognized that identification of an actual
construction project is not required in situations where the costs of providing
new facilities needed for the approximate number of new students generated by
new development would vastly exceed the amount that could be collected in
fees. (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3
Cal.App.4th 320, 332 (Garrick).) There was no such showing here. (Gomes I,
supra, at p. 11.)
[3] Government Code section 66001, subdivision (a)
provides, in pertinent part: “In any action establishing . . . or imposing
a fee as a condition of approval . . . , 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 . . . other public documents that
identify the public facilities for which the fee is charged.”
[4] Of tangential interest is the fact that the District
has been recycling this analysis for at least 10 years. In each of five
previous studies, the estimates of new facilities costs were based upon state
cost formulas for the same three hypothetical schools.
[5] Because the 1999 facilities plan was not contained in
the appellate record, and had nowhere been mentioned or identified in the
briefing or argument, we declined to consider it. We note in passing that this
plan reflected a fully funded new elementary school with a budget that required
only $100,000 in developer fees. As of fiscal year 1999-2000, the District had
more than $613,000 in its developer fee account.
[6] There was a single letter approving the District’s
“plans” for modernization of Oak Manor Elementary. The District does not
assert that this was the plan for which the fee was imposed.
[7] Again, the “Plan” referred to and relied upon in the
fee resolution was this: “[T]he district’s application and related documents
filed with the State Allocation Board pursuant to the State School Facility
Program (herein referred to as the ‘Plan’) . . . which formed the
basis for the action taken pursuant to this resolution.”
[8] We note there is no evidence that all of the new documents
proffered by the District were available to the public. The District merely
asserts, without citation to the record, that the documents are “public
documents.” Nor is there any competent evidence to support the tacit premise
upon which the District’s contention is built, viz., that the school board
members who voted on the fee resolution in 2000 had seen and considered
the selected series of documents dating back to 1992. Additionally, one of the
District’s linchpin documents is a budget dated February 13, 2001; this document
could not have been available to anyone at the time of the October 2000
resolution.
[9] We are
familiar with the holding in Garrick, supra, 3 Cal.App.4th 320. There,
the court rejected plaintiffs’ argument that the trial court should not have considered
evidence supporting the imposition of a facilities fee where the evidence had
not been furnished to the plaintiffs before the fee was imposed. But the
question in Garrick was whether, under Government Code section 66016,
subdivision (a), a school district was required to furnish to
plaintiffs—as opposed to make available to the public—all data it considered relating
to cost of facilities and revenue sources prior to imposing the fee. (Garrick,
at pp. 329-330.) Here, we address the question whether, under Government Code section
66001, subdivision (a)(2), the District had identified the use to which the fee
would be put in its action imposing the fee. Garrick does not speak to
this issue.
[10] This witness
also testified that the “Plan” referred to in the resolution was not just the
plan to build a new elementary school, but “was the direction the district was
taking in housing students, in remodeling schools, building new facilities,
upgrading facilities. [It] included many committees, many documents written by
superintendents, and information that was provided to those people on those
committees or in the cabinet. Those were all, to me, were the whole
encompassing plan of where we were going in the district.” This conception of
“the Plan” is fundamentally at odds with the language of the fee
resolution—drafted by this witness—that describes the plan only by
reference to the 2000 study and the documents filed with the SAB.
[11] The District
relies on a letter from the SAB files containing the following sentence: “The
State Allocation Board recently approved the attached item(s) for your District
on May 24, 2000, for Application Number 50/65615-00-00.” The District’s
contention is that this is the SAB’s approval of eligibility for construction
of the new elementary school, which is the “Plan” referred to in the
resolution. Even assuming that one letter approving an unidentified project
could ever satisfy the Government Code’s requirement of identifying actual
facilities for which fees will be used, the SAB documents do not support the District’s
contention. To begin with, application No. 50/65615-00-00 appears to
relate to the Oak Manor Elementary School modernization plan, not to new school
construction. Indeed, a letter dated just seven days earlier, approving the
plans for the Oak Manor modernization, bears that number. Further, the District’s
consultant testified that she had prepared documents for the purpose of seeking
eligibility for construction of a new elementary school in 1998, and reaffirmed
that the documents were prepared in 1998 by reference to the District’s
“New School Site Acquisition and Development Plan” adopted in July 1998. But
the eligibility list attached to the May 24 approval letter shows the District’s
application date as December 17, 1999, not 1998. And the only applications
dated December 17, 1999, are for modernization projects, including the Oak
Manor project. The list also indicates there is excess capacity in the
elementary and middle schools; only the high school is shown as having a
capacity shortfall. The District’s single application for new construction
eligibility also indicates there is excess capacity in the elementary
and middle schools and a need to accommodate 200 new high school students. All
of this evidence is inconsistent with the District’s contention that “[t]he
only purpose in filing those documents with the State Allocation Board was to
determine the District’s eligibility and to obtain approval to build this new [elementary]
school.”
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