California-Developer School Fees under Sb13 / Land Use 65852.2

[Michael Frost]

I am currently battling with the local school district here in Orange County. Capistrano Unified School District. Their interpretation of the new ADU laws don't match up with the intent of the legislation. They are attempting to impose their latest developer fee rate of $4.08 per square ft, even on designs less than 750 square ft.

Any thoughts?  HCD currently agrees with me that the fees do not apply- although they have no leverage against specific school districts.

[Dan Heuschele]

If there are no repercussions for a school district charging impact fees they will continue to charge the impact fees.

I have heard Senator Wienkowski speak about SB13 and therefore have little doubt that his intent was to not have ADUs below 750' have any impact fees (including school district fees).

It is to the school district's advantage to rule that the school district is exempt from the no impact fees because school districts are not explicitly specified.  As indicated, I have significant confidence that the Senator intended ADUs less than 750" to have no impact fees including no school district related impact fees.

HCD does not seem to have any power to enforce there not being any impact fees.

Has anyone contracted Senator Weinkowski's office about these impact fees?  I personally believe each person in this thread that has been charged impact fees for ADUs that are less than 750' should contact the Senator's office with their complaints about the various school districts.  Maybe seeing that this is not an isolated problem, the Senator can exert some influence to get the education impact fees removed.

Currently the school districts are getting away with charging impact fees.  They will continue to do so until someone forces them to stop.

Good luck

[John A Murray]

Dear Councilman Austin and Councilwoman Saro,
My name is John Murray and I am a life-long resident of Long Beach. 
I am writing to you as a result of an issue I've had with both the city and Long Beach Unified when I applied for a building permit in 2020 to convert my 360 square foot garage into an ADU to provide housing for my 92 year-old mother-in-law. Your help as members of the Long Beach City Council ADU taskforce is needed.
I applied for the building permit with Long Beach Development Services and was informed that I was required to pay a school impact fee to Long Beach Unified. No school fee paid=no city building permit. I was aware of the recent bill signed by the governor-SB 13-that eliminated this fee for small ADU's effective January 1, 2020, and verified that with the Department of Housing and Community Development (HCD). They provided me with an advisory letter (attached) they had produced regarding the Azusa Unified School District.
Both Long Beach Unified (LBUSD) and Long Beach Development Services (LBDS) would have none of that, and I was forced to pay a $1,440 school impact fee, which I did-under protest.
To make a long story short, I went through the LBUSD grievance process (grievance denied). The HCD, in conjunction with the Office of the Attorney General, then provided an advisory letter to the LBUSD (attached) stating the fee they charged me was illegal. I appealed in writing, providing the letter and the HCD ADU handbook (attached), to the LBUSD Superintendant, LBUSD School Board, the City Manager, the Director of Development Services, the LBDS "Ombudsman" and the City Attorneys office-all to no avail and minimal response.
The director of the LBDS also month even provided a memo (attached) to the City Manager-at your request-which showed neighboring large cities to do not charge this fee for small ADU's like mine (under 500 square feet). I contacted these cities to inquire why they do not charge these fees and they said state law does not allow them to.
This illegal fee I was forced to pay is especially grievous to me as I was an eager proponent of the two recent Measures (E and K) that provided 2.4 BILLION dollars in bond funds to the LBUSD. I even attended Measure K meetings and distributed literature at school sites. My wife and I, not only donating thousands of dollars and hundreds of hours, received PTA "Parents of the Year" awards, my small business was a partner (funding "regular" lunches for students without funds) with the LB Education Foundation, and I was a volunteer athletic assistant coach at Poly High School.
My recent records request shows that in the 18 months subsequent to implementation of SB 13 (Jan 1 2020 to June 30 2021) the LBUSD received 300 less-than 500 square foot ADU applications and received $461,000 in illegal school impact fees. These applicants are not real estate/developer entities but regular people trying to do right by their families. Why this greedy school district AND the city of Long Beach knowingly refuse to comply with state law is beyond me, but it must be stopped and corrected-retroactively and going forward. Peolple deserve a refund of their now probably $800,000 in these illegal fees paid from January 1, 2020 to date. Forcing this illegal fee not only restricts development of ADU's it penalizes those who move forward with these plans, which is the opposite of what needs to happen with regard to providing new housing.
Thank you for your anticipated co-operation.

[Mark Devlin]

I brought all my evidence to the district, below was their response followed by mine. This is just silly. 

"I totally understand your position, but the HCD (on page 14) lists everyone but School Districts. That has been the bone of contention since the beginning; an ADU that is attached to a structure (NOT stand alone) and is under 500 sq. ft. is the only time that we don't charge for an ADU. I was directed in the beginning to follow that ruling and haven't been told anything different to date.

You have every right to protest this matter and I for one would be happy to have this whole issue settled once and for all.

I still would start with Clark Hampton and see what he suggests going forward. His phone number is 949/234-9211."

MINE - " Yes I would love to get a final answer once and for all. Show me where you see that on page 14? My attorney mentioned that page 14 clearly states that "ADUs less than 500 sq ft are not subject to school impact fees"

[John A Murray]

What I have tried to impress upon the entities I have been in contact with is that the HCD is the State Agency tasked with enforcing ADU law. The LBUSD seems to feel like they have veto power over the position of the HCD in this regard. Per their management, Long Beach Development Services is afraid of the LBUSD suing them if they stop forcing applicants to pay school fees. They too have chosen to disregard the position of the HCD.

GOVERNMENT CODE SECTION 65852.2. ACCESSORY DWELLING UNITS.

The Legislature has given HCD particular authority to shepherd the development and
application of State ADU Law. (Gov. Code, § 65852.2, subds. (h), (i).) Among other
things, HCD is charged with reviewing local ordinances for compliance with the law
and providing technical assistance in the form of letters and a technical assistance 
handbook. Among the changes made to facilitate the development of ADUs were
limitations on impact fees that may be charged by local agencies. (See, e.g., Gov.
Code, § 65852.2, subd. (f)(3).)

[John A Murray]

And here is the kicker, forget about ADU's for now. Long Beach (and many others I bet) has charged school impact fees for less-than 500 sf residential construction even after the 2002 California Appeals Court decision outlined below says it's illegal. There are a lot of illegal fees charged that merit refunds. This needs to be corrected also.

Education Code section 17620 also provides in relevant part that school districts may

levy fees for residential construction, but only as to construction that is either:

• “New residential construction;” (Ed. Code, § 17620, subd. (a)(1)(B).)

• Or “… to other residential construction, only if the resulting increase in

assessable space exceeds 500 square feet.” (Id., subd. (a)(1)(C).)

HCD understands Warmington Old Town Associates v. Tustin Unified

School District (2002) 101 Cal.App.4th 840 to underpin its position. The court in

Warmington had occasion to interpret these two provisions of the Education Code. The

court noted that the term “new construction” offered little to clarify the matter since all

construction by its very nature is new. (Id. at p. 851.) Looking at the statutory

construction and legislative intent, the Warmington court reasoned that the phrase

“other residential construction” was intended to apply to residential improvements by

individual homeowners making improvements to their own properties. (Id. at p. 854.)

The intent is to encourage homeowners to make improvements and to apply for

permits to do so properly “without fear of being subjected to the school-impact fees” so

long as the new accessible space does not exceed 500 square feet. (Id. at p. 854.)

[John A Murray]

I've been patiently waiting for the HCD since October 2021 to re-determine whether School Districts can charge this fee, emailing requests for updates periodically, with no responses-ever. When I recently saw the updated 2022 ADU Handbook that they just released, it still contained the language that School Districts may not charge this fee for less-than 500 sf ADU'S. So I stepped up my inquiries and still no response. Frustrated, I filed Public Records Act requests with the HCD, and the next day recieved a call from the new ADU head Gerlinde Bernd. To make a long story short, she said they are still trying to figure out what to do, and she will get back with me in a month.

She is fully aware of the situation and the same position of many School Districts that charge this fee but also aware of the School Districts that don't charge this fee. The Districts that I spoke to that don't charge this fee do not do so as a result of the determination of the HCD. Should the HCD change their position I would imagine they will be upset with the HCD due to the lost revenue. I would also imagine they might go after the HCD for compensation. We are talking lot's of money.

Dan I have contacted everybody; state senators, assmblymen, school board members, county supervisors, city councils, city management/attorneys, senator Weinkowski etc and most wouldn't even respond. Some respond once and then disappear. Pretty discouraging.

I'll post here when I hear back from Ms. Bernd.

[John A Murray]

The California Department of Justice, in conjunction with the California Department of Housing and Community Development, is investigating the charging of this fee. They are looking to find out what cities force ADU applicants to pay School Impact Fees on less-than 500 sq. ft. ADU's.

Please let me know if you are aware of the cities that do.

Thank you!