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LAW OFFICES OF
WALTER P. McNEILL

Specializing In Litigation Against

EXCESSIVE

GOVERNMENT

FEES

THE PROBLEM:

In California we are experiencing a pandemic of excessive government fees. To replace lost tax revenues and feed the appetite of expanding government budgets, more and more State agencies, counties, cities and service districts are charging consumers and businesses excessive new or increased fees for virtually every conceivable kind of government service, permit, or approval. All too often these fee programs are operated as “profit centers” to generate extra revenues that are siphoned off to the general fund of local agencies or used to pay for completely unrelated public services/ facilities. While fees may be a legitimate financing mechanism for the reasonable cost of government services and public facilities, excessive government fees are unlawful and unconstitutional “taxes” or “takings” by government. Such illegal fees inflate the cost of living for everyone, and promote dishonesty and corruption in State and local government.

THE SOLUTION:

Until recently fee paying consumers and businesses in California had little recourse to fight back against illegal excessive government fees. However, the proliferation of excessive government fees has led to litigation and case law offering hope to fee payers who seek to bring government fees back down to earth, and in some cases obtain refunds of their payments of excessive fees. At the forefront of this rapidly emerging practice area, attorney Walt McNeill is recognized as one of the leading litigators in California challenging excessive government fees. We have challenged building permit and plan review fees, water capacity charges, garbage collection fees, open space assessments, traffic impact fees, and environmental document fees, among others. Through negotiation and settlement, as well as litigation, we have obtained large scale refunds of excessive fee payments for clients, and convinced or compelled government agencies to substantially reduce future fees to a level no more than the reasonable cost of providing government services. Below are recent cases (some still pending) where we are representing or have helped clients challenge excessive government fees. The good news is that, with effective legal representation, you can “fight City Hall” and get relief from illegal excessive government fees.

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Barratt American, Inc. v. County of Orange (Orange County Superior Court)
• Multi-action case against Orange County alleging the collection of excessive building permit and plan review fees, and the accumulation of a multi-million dollar surplus that the County failed to apply to reduce future fees as required by law.
The case on disposition of the fee surplus resulted in a trial court ruling ordering the County to reduce future building permit and plan review fees by $4.5 million. In addition the Court awarded attorney’s fees on the “private attorney general” doctrine (CCP §1021.5) in the amount of $1,217,838 and costs of $161,735. (Current status—appeal filed May 27, 2005, Fourt District Court of Appeal.)

Contra Costa Taxpayers Association – opposition to “open space assessment”
• Represented the Contra Costa Taxpayers Association in opposing a county-wide “open space assessment” sought by Contra Costa County and the East Bay Regional Park District. Obtained expert reports critiquing assessment and submitted to the administrative record along with public testimony. Assessment was defeated by property owner vote, August 11, 2004.

Barratt American v. City of Rancho Cucamonga (Supreme Court No. S117590)
• Action against the City of Rancho Cucamonga alleging the collection of excessive building permit and plan review fees. Complaint seeks the full range of remedies under the Mitigation Fee Act (GC §66000 et seq.) as well as compulsory disclosure of excess fee revenues as “proceeds of taxes.” Trial court sustained demurrer without leave to amend; Court of Appeal, 4th District, affirmed. Review accepted by the Supreme Court on all points. Case is fully briefed. Oral argument likely in the fall of 2005.

Richmond v. Shasta CSD   (32 Cal.4th 409)
• Challenge to validity of new water “capacity charge” levied to pay for capital improvements, on the grounds that such charges are “special assessments” that must comply with Proposition 218 (Ca. Const. Art. 13D) procedures for assessments. The Court ruled they are not “special assessments,” clarifying its earlier rulings in the San Marcos cases.

Chico Builders – City of Chico
• Represented 5 Chico builders –Webb Homes, Aspire Homes, Drake Homes, Epick Homes and Ritchie Homes-- opposing and seeking refunds of excessive building permit and plan review fees. Filed refund claims and negotiated settlement without litigation, resulting in refunds of $530,394 to the builders. Negotiations and fee study also resulted in reduction of future building permit and plan review fees by about 50 %.

Barratt American v. County of Riverside   (Riverside Co. Superior Court)
• Action against the County of Riverside and the Western Regional Council Of Governments (“WRCOG”) challenging the validity of the Transportation Uniform Mitigation Fee (“TUMF”) and seeking refunds of fees paid by Barratt American on its project. Case was settled with dismissal of challenge to the TUMF fee, but with payment of refunds to Barratt American of $381,732.

Barratt American, Inc. v. City of San Diego (San Diego Superior Court)
• Action against the City of San Diego in Superior Court Nos. 743672 and 760826 claiming that building permit fees based on valuation of construction were excessive. Settlement agreement in September of 2001, without going to trial, resulted in payment of $25,000.00 and binding commitment by the City whereby: “The City agrees to select a third party to conduct a fee study which will, at a minimum, examine whether the current building permit and plan check fees are based upon the estimated reasonable costs incurred by the City in performing plan check and building inspection services. The fee study will also discuss whether alternative fee schedule(s) not based upon valuation tables more accurately reflect the City’s actual expenses to perform plan check and inspection services. Also, the fee study will analyze the amount of time spent by City building inspectors on a sampling of single family residential units (i.e. a time and motion study). Finally, the fee study will examine whether the costs to complete necessary improvements to the Land Base Map system should be borne by the Development Service Department Enterprise Fund or, in the alternative, whether other sources of funding should be used to complete the necessary improvements, to hire independent third party fee consultant.” As a consequence of the independent fee study, the City reduced its fees for building permits and plan checks on tract residential housing by roughly 40%.

Paladin Fair Housing Coalition v. City of Murrieta (Riv. Co. Superior Court)
• Challenge to excessive building permit and plan review fees. Resolved by settlement and stipulated judgment for City to revise fees and pay $600,000.

Mills (&CAPS) v. Dept. of Fish & Game   (79 Cal.App.4th 935)
• Plaintiff challenged environmental filing fee on the grounds that Plaintiff and 90% of individual fee payers received no “service” in connection with fee. Judgment for Plaintiff as individual upheld, but broad application of fee to all fee payers held valid because total costs of program were greater than total revenues from fees.

Law Office of Walter P. McNeill
280 Hemsted Drive, Suite E
Redding, CA 96002
Phone: (530) 222-8992
FAX: (530) 222-8892
Email: walt@waltmcneill.com