In the spring of every year, the Land Use Committee of the American Bar Association Section of State and Local Government Law meets for its annual Hot Topics luncheon. Section members and guests present (at lightning speed) short summaries of the papers that they have prepared on a particular aspect of land use law, some following and writing about a topic for many years. When I first became involved in the Section in 2003, I was given the great privilege to write a paper on the topic of exactions and impact fees with a legend in land use and local government law, Dan Curtin. Dan practiced in his native San Francisco Bay area, in Walnut Creek, California and wrote the multi-volume treatise on California planning and zoning law that bears his name. He was the president of the International Municipal Lawyer’s Association and the chair of the State and Local Government Section of the ABA. Dan was very generous with his time and insight with me (as he was with so many others) and allowed me to write with him for several years. A few years ago, he then introduced me to his protégé, Bryan Wenter, who began contributing to this annual paper with us. Then, when Dan passed away unexpectedly at the end of 2006, Bryan and I kept going, and have continued to produce the update on the law of exactions and impact fees. Fittingly, Bryan is the assistant City Attorney for Walnut Creek, California, where Dan practiced for many years, and has become a very great friend.
What are exactions and impact fees, anyway, and why write about them year after year? Frequently, local government requires developers and landowners to dedicate property or property rights or pay fees in exchange for the right to develop property in a certain way. By doing this, the local government hopes to shift the burden that the new development might cause from the local government’s operating budget to the developer, at least for a period of time, or ameliorate a negative condition that might be caused by the development. Or, in some cases, to get something from the landowner that the local government wants, which it would otherwise not have to opportunity “to exact.” The US Supreme Court dealt with these issues in the Nollan case in 1987 and the Dolan case in 1994, but determining whether a local government has properly calculated an impact fee or demanded an exaction that is within its constitutional power to do is continually worked out in state courts across the country every year, as local governments struggle to make ends meet and developers seek to minimize costs and to retain as many rights through the entitlement process as possible.
The 2009 article has now been published in The Urban Lawyer, one of the leading law reviews on state and local government law, produced by the UMKC School of Law, by agreement with the ABA Section of State and Local Government Law. I have attached the full article at the link below.
