Stanford Law School - Robert Crown Law Library

Filed 12/22/05

IN THE SUPREME COURT OF CALIFORNIA

BARRATT AMERICAN,
INCORPORATED, )

Plaintiff and Appellant,
S117590
v.
Ct.App. 4/2 E032578
CITY OF RANCHO CUCAMONGA,
San Bernardino County
Defendant and Respondent.
Super. Ct. No. RCY063382

The Mitigation Fee Act (Gov. Code, §§ 66000-66025)1 (the Act) was
passed by the Legislature “ ‘in response to concerns among developers that local
agencies were imposing development fees for purposes unrelated to development
projects.’ ” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 864.) Although
most of the Act is concerned with development fees, it also addresses fees or
charges that do not necessarily relate to a development project. (Utility Cost
Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1191
(Utility Cost Management).) The various sections of the Act cover fees for
development projects (§§ 66000-66011), water or sewer connections (§ 66013),
and zoning and building permits (§ 66014). This case involves legal challenges to

1
Except as otherwise noted, all further statutory references are to the
Government Code.
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building inspection and permit fees and appropriate remedies when excessive fees
are imposed.
Section 66014, subdivision (a), provides that local agency fees for building
inspections and permits may not exceed the estimated reasonable cost of providing
the service for which the fee is charged unless the excess amounts are submitted to
and approved by a two-thirds vote of the electorate. Section 66016, subdivision
(a), provides a prospective fee reduction remedy when fees or service charges
exceed actual costs and create excess revenues. Both sections specify that any
judicial challenge to a fee thereunder is subject to the requirements of section
66022, which states that the action or proceeding “shall be commenced within 120
days of the effective date of the ordinance, resolution, or motion.” (§ 66022, subd.
(a); see also §§ 66014, subd. (c), 66016, subd. (e).)
Sections 66020 and 66021, which authorize a refund of any unlawful part
of the fees imposed on a development project, are subject to a different statute of
limitations period. Local agencies must give project applicants written notice of
the fee amount, indicating that they have 90 days to protest it. (§ 66020, subd.
(d)(1).) Any party who files a protest may then file an action attacking the
imposition of the fees within 180 days after delivery of the local agency’s notice.
(§ 66020, subd. (d)(2).)
In this case, we determine: (1) whether a party who challenges a local
agency’s fees for building inspections and permits under section 66014 can state a
claim for remedies under both section 66016 (prospective fee reduction) and
section 66020 (refund); (2) whether the limitations period of section 66020 or
section 66022 applies to a claim that the local agency’s building permit fees are
excessive; and (3) whether a local agency’s reenactment of the same building
permit and inspection fees is subject to challenge under section 66022. In
addition, we decide other issues: (4) whether local agencies that charge excessive
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building permit and plan review fees are subject to a penalty for collecting and
retaining “special taxes” without voter approval within the meaning of section
53728; and (5) whether local agencies are constitutionally required to conduct
annual financial audits to assess whether their fees create excess revenues. We
conclude that building permit fees are not fees imposed on a development project.
Therefore, the applicable remedy and limitations period for excessive building
fees claims under section 66014 are found in sections 66016 and 66022, not in
sections 66020 and 66021. Also, we conclude that a reenactment of the same
building permit fee is a modification or amendment of an existing fee or service
charge under section 66022, which triggers a new limitations period; that local
agencies that charge excessive building permit fees are not subject to a section
53728 penalty; and that local agencies are not constitutionally required to conduct
annual financial audits.
I. FACTUAL AND PROCEDURAL HISTORY
Because this case comes to us on a demurrer for failure to state a cause of
action, we accept as true the facts alleged in plaintiff Barratt American, Inc.
(Barratt)’s complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
In July 1999, the City of Rancho Cucamonga (City) adopted resolution No.
99-146, setting forth a comprehensive fee schedule for various services the City
provides. It included a fee schedule for building permits and plan reviews based
on the “total valuation of work.” The charges for building permit fees started at
$25 for work valued up to $1,000 and ended at $555 for work valued up to
$100,000. Each additional $1,000 in value incurred a fee of $2.50. Plan review
fees were a percentage of the building permit fees. The City building official was
authorized to determine the “total valuation of work.” In December 2000, the City
adopted resolution No. 00-268, which modified certain fees set in 1999. The 2000
resolution slightly increased, by 50 cents, the building permit fee from $555 for
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work valued at $100,000 to $555.50. The resolution explained that the new fee
was a correction of a previous typographical error. In January 2002, the City
adopted resolution No. 02-023, which modified certain fees set in 2000. However,
the building permit fee was not changed, except to the extent it was reset at $555
for work valued at $100,000. The 2002 ordinance apparently reintroduced the
typographical error that the 2000 ordinance had corrected.
In June 2000, Barratt, a real estate developer, began to construct a 123-unit
residential subdivision in the City. In May 2002, Barratt sued the City, alleging
that the City’s building permit and plan review fees were excessive, that the City’s
method of establishing those fees was arbitrary and unrelated to the actual cost of
the service provided, that the fees were based improperly on the monetary value of
the work, and that the building officials had unfettered authority to determine the
final valuation component of the fee. The complaint further alleged that,
beginning in June 2000, Barratt had paid more than $143,000 in building permit
and plan review fees for at least 83 building permits for the construction of single-
family homes in the 123-unit subdivision, that it intended to continue construction
until it completed the project, and that the City collectively received more than $1
million per year (and more than $3 million total) in excess building permit and
plan review fees. Barratt sought: (1) a refund of $143,000 for the allegedly
excessive fees already paid (§ 66020) or in the alternative, a refund in excess of
$110,000, after crediting the City with the reasonable value of services it rendered
in issuing the building permits and reviewing Barratt’s plans; (2) a writ of mandate
compelling the City to apply the excess fee revenues to reduce future fees
(§ 66016, subd. (a)) and to perform an annual audit to identify excess fee revenues
(Cal. Const., art. XIII B, §§ 1.5, 8, subd. (b)); (3) a declaration that the fees
imposed were invalid “special taxes,” resulting in the reduction or forfeiture of
property tax revenues (§§ 53722, 53728); and (4) the invalidation of resolution
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No. 02-023 (§§ 66016, subd. (e), 66022, subd. (b)). When it filed the action,
Barratt was midway through the development and sales of the homes in the
subdivision.
The City demurred to Barrett’s complaint. The trial court sustained its
demurrer without leave to amend, ruling that: (1) Barratt could not obtain a refund
under section 66020 because building permit and plan review fees are not
development fees within the meaning of that section; (2) a writ of mandamus to
compel the City to comply with section 66016 and to perform an annual audit and
fee adjustment was an inappropriate remedy because the timing of any fee review
and adjustment is a matter of legislative discretion; and (3) declaratory relief under
sections 53722 and 53728 was not an appropriate remedy. Instead, the court
found that the appropriate remedy for excessively high building permit fees was to
challenge the ordinance in a validation action and obtain a prospective fee
reduction, as specified in section 66016. That remedy was unavailable to Barratt,
however, because the statute of limitations period had expired. In addition, the
court determined that Barratt could not attack the validity of resolution No. 02-023
because the 2002 resolution only reenacted the fee previously set forth in the 2000
resolution and was not a new or increased fee under section 66016.
The Court of Appeal agreed with the trial court’s reasoning and result and
affirmed the judgment. We granted Barratt’s petition for review.
II. DISCUSSION
Barratt contends that payers of excess building permit fees in violation of
sections 66014 and 66016 have several remedies for those overcharges: (1)
individual refunds (§§ 66020, 66021, subd. (a)); (2) application of excess fees to
future costs (§ 66016, subd. (a)); and forfeiture of property tax revenues (§ 53728).
Barratt also claims that to ensure that cities comply with sections 66014,
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subdivision (a), and 66016, subdivision (a), they must conduct annual audits.
(Cal. Const., art. XIII B.) We discuss those claims below.
Sections 66014, 66016, and 66022.
Section 66014, subdivision (a), permits local agencies to impose building
inspection and permit fees “not [to] exceed the estimated reasonable cost of
providing the service for which the fee is charged, unless a question regarding the
amount of the fee charged in excess of the estimated reasonable cost of providing
the services or materials is submitted to, and approved by, a popular vote of two-
thirds of those electors voting on the issue.”
Section 66016, subdivision (a), which also expressly applies to building
inspection and permit fees, provides the remedy for over-collections: “Unless
there has been voter approval, as prescribed by Section 66013 or 66014, no local
agency shall levy a new fee or service charge or increase an existing fee or service
charge to an amount which exceeds the estimated amount required to provide the
service for which the fee or service charge is levied. If, however, the fees or
service charges create revenues in excess of actual cost, those revenues shall be
used to reduce the fee or service charge creating the excess.”
Both sections 66014 and 66016 require that “[a]ny judicial action or
proceeding to attack, review, set aside, void, or annul the ordinance, resolution, or
motion” authorizing the charge of a fee subject to those sections “shall be brought
pursuant to Section 66022.” (§§ 66014, subd. (c), 66016, subd. (e).)
Section 66022, subdivision (a), provides: “Any judicial action or
proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or
motion adopting a new fee or service charge, or modifying or amending an
existing fee or service charge, adopted by a local agency, as defined in Section
66000, shall be commenced within 120 days of the effective date of the ordinance,
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resolution, or motion.” Subdivision (c) of that same section states: “This section
shall apply only to fees, capacity charges, and service charges described in and
subject to Sections 66013 and 66014.”
1. Individual Refund Remedy and Limitations Period Under Sections
66020 and 66021 Do Not Apply to the Building Permit Fees
Barratt Paid.
Although Barratt agrees that the charges at issue are fees for “building
inspections” and “building permits” that are subject to sections 66014 and 66016,
it argues that it does not seek “to attack, review, set aside, void, or annul” the
ordinances under section 66022. Instead, it claims that it is protesting the
imposition of specific fees on a particular development project, which is governed
by the separate protest and refund procedures and remedy and limitations scheme
set forth in sections 66020 and 66021.
Section 66020 provides that “Any party may protest the imposition of any
fees, dedications, reservations, or other exactions imposed on a development
project, as defined in Section 66000, by a local agency” by paying the fees and
serving a written notice of protest. (§ 66020, subd. (a), italics added.) A local
agency must provide a development project applicant written notice of the amount
of the fees when imposing them and must indicate that the applicant has 90 days to
protest the fees. (§ 66020, subd. (d)(1).) “Any party who files a protest pursuant
to subdivision (a) may file an action to attack, review, set aside, void, or annul the
imposition of the fees, dedications, reservations, or other exactions imposed on a
development project by a local agency within 180 days after the delivery of the
notice.” (§ 66020, subd. (d)(2).)
Section 66021 provides that “Any party on whom a fee, tax, assessment,
dedication, reservation, or other exaction has been imposed, the payment or
performance of which is required to obtain governmental approval of a
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development, as defined by Section 65927, or development project, may protest the
establishment or imposition of the fee, tax, assessment, dedication, reservation, or
other exaction as provided in Section 66020.” (§ 66021, subd. (a), italics added.)
Barratt argues that it complied with the statutory procedural requirements
of sections 66020 and 66021 by paying the fees and submitting a letter of protest
to the City, dated September 21, 2001. The City responds that those sections do
not create a refund remedy for “excess” regulatory fees, such as building permit
and plan review fees, because they are not fees imposed on a development project
within the meaning of sections 66020 and 66021. Thus, those sections do not
apply here. We agree that Barratt’s refund claim fails because sections 66020 and
66021 do not apply to the building permit fees it paid.
“[F]ees . . . imposed on a development project,” as used in section 66020,
refers to “fees” and a “development project” as defined in section 66000. A
“development project” is defined as “any project undertaken for the purpose of
development . . . includ[ing] a project involving the issuance of a permit for
construction or reconstruction, but not a permit to operate.” (§ 66000, subd. (a).)
A “fee” is defined as “a monetary exaction other than a tax or special
assessment . . . that is charged by a local agency to the applicant in connection
with approval of a development project for the purpose of defraying all or a
portion of the cost of public facilities related to the development project, but does
not include . . . fees for processing applications for governmental regulatory
actions or approvals . . . .” (§ 66000, subd. (b), italics added.) Thus, section
66020, by its own terms, applies only to “development fees” that alleviate the
effects of development on the community and does not include fees for specific
regulations or services.
On the other hand, Government Code section 66016 applies to a long list of
local regulatory fees described in Government Code sections 51287, 56383,
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57004, 65104, 65456, 65863.7, 65909.5, and 66451.2; to building, planning, and
zoning fees described in section 66014; to public facility capacity and connection
charges described in section 66013; and to building permit fees described in
Health and Safety Code sections 17951, 19132.3, and 19852.2
Here, Barratt paid building permit and plan review fees to cover the costs of
regulating construction quality and ensuring public safety. (See Health & Saf.
Code, §§ 17951, subds. (c) and (e), 19132.3.) Although sections 66014 and 66016
govern these regulatory fees, they do not qualify as “development project fees”
under section 66000. In addition, the building permit and plan review fees were
not made “in connection with approval of a development project for the purpose of
defraying all or a portion of the cost of public facilities related to the development
project . . . .” (§ 66000, subd. (b).) They were not “fees imposed on development
projects in order to finance public improvements or programs that bear a
‘reasonable relationship’ to the development at issue.” (Utility Cost Management,
supra, 26 Cal.4th at p. 1191.) Instead, the building permit and plan review fees
were simply fees to defray the administrative and enforcement costs of a local
regulatory program. (See Gov. Code, §§ 66014, subd. (a), 66016, subd. (a);
Health & Saf. Code, §§ 17951, subd. (c), 19132.3 [fees may not exceed the
reasonable cost of providing the regulatory service for which the fee is charged].)
Although the plain language of the statutes dictates the result here (Lungren
v. Deukmejian (1988) 45 Cal.3d 727, 735), legislative history provides additional

2
Section 66016, subdivision (d), states that: “This section shall apply only
to fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456,
65863.7, 65909.5, 66013, 66014, and 66451.2 of this code, Sections 17951,
19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public
Resources Code, and Section 21671.5 of the Public Utilities Code.”
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authority. The California Legislative Counsel has similarly concluded that section
66020 does not include fees associated with plan check or inspection fees. (Ops.
Cal. Legis. Counsel, No. 1518 (Jan. 28, 1997) Development Fees, pp. 1, 6.) The
Legislative Counsel reasoned that building permit fees are “separately authorized
under the Health and Safety Code and do not relate to fees in the nature of
monetary exactions imposed for the purpose of defraying all or a portion of the
cost of public facilities related to a development project as contemplated in the
Mitigation Fee Act.” (Id. at p. 6.) Legislative Counsel opinions have great
persuasive weight, “since they are prepared to assist the Legislature in its
consideration of pending legislation.” (Cal. Assn. of Psychology Providers v.
Rank (1990) 51 Cal.3d 1, 17.) Accordingly, we conclude that the Legislature did
not intend section 66020 to authorize a refund action for overcharges of building
permit and plan review fees.
Barratt claims that section 66021 expands the scope of section 66020’s
protest procedures to cover building permit fees. He argues that a fee paid to
obtain approval of a building permit for construction of residential housing
qualifies as a fee “the payment or performance of which is required to obtain
governmental approval of a development, as defined by Section 65927.”
(§ 66021, subd. (a).) Section 65927 defines “development” broadly to include
“the placement or erection of any solid material or structure.”
However, section 66021 operates not to extend section 66020’s protest
procedures to regulatory fees, but to extend them to taxes and assessments.
(Compare § 66020, subd. (a) [“Any party may protest the imposition of any fees,
dedications, reservations, or other exactions . . . .”] with § 66021, subd. (a) [“Any
party on whom a fee, tax, assessment, dedication, reservation, or other exaction
has been imposed . . . .”]; see also § 66000, subd. (b) [excluding taxes and
assessments from the Mitigation Fee Act’s definition of “fee”].) In addition,
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section 66021 limits its scope to those fees or taxes that are “required to obtain
governmental approval of a development, as defined by Section 65927.”
(§ 66021, subd. (a).)
As the City notes, many cities require applicants to pay certain mitigation
fees as a precondition to the issuance of a building permit. This building permit
process might reasonably be characterized as being “required to obtain
governmental approval of a development” (§ 66021, subd. (a)). (See, e.g., Trend
Homes, Inc. v. Central Unified Sch. Dist. (1990) 220 Cal.App.3d 102, 108 [noting
that the City of Fresno required certain homebuilders to pay school impact fees
before becoming eligible for building permits].) However, Barratt challenges only
the City’s charges for ministerial, regulatory building plan review and construction
inspection activities that implement state and local building safety standards.
These fees—for regulatory services the Health and Safety Code requires—do not
necessarily relate to a development project (e.g., fees imposed on a homeowner’s
addition of a laundry room). They fund a program that supervises how, not
whether, Barratt may build. Thus, the building permit fees in this case were not
“required to obtain governmental approval of a development.” (§ 66021, subd.
(a).)
Analogously, it has been held that water and sewer connection fees under
section 66013—fees that are also included in section 66016—“are not ‘fees . . .
imposed on a development project’ for purposes of Section 66020” and thus, are
not subject to review under the payment and protest provisions of section 66020.
(Cal. Psychiatric Transitions, Inc. v. Delhi County Water Dist. (2003) 111
Cal.App. 4th 1156, 1161 (Cal. Psychiatric Transitions).) The Court of Appeal
reasoned: “As the Supreme Court pointed out in Utility Cost Management v.
Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1191, 114 Cal.Rptr.2d
459, 36 P.3d 2, the mere fact that fees are imposed in a particular instance in
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connection with development does not make them ‘fees imposed on a
development project" for purposes of section 66020. The court stated that
‘development fees [are] fees imposed on development projects in order to finance
public improvements or programs that bear a 'reasonable relationship' to the
development at issue.’ (Utility Cost Management, at p. 1191.) The fees and
charges authorized by section 66013 may or may not involve development . . . but
the fees and charges are always tied directly to a benefit conferred on the property
assessed (id. at p. 1189). Accordingly, such charges are user fees (in the case of
connection fees) . . . .
“By contrast, ‘fees . . . imposed on a development project,’ as used in
section 66020, refers to ‘fees’ as defined in section 66000, subdivision (b). That
definition states that a fee is ‘a monetary exaction other than a tax or special
assessment . . . that is charged by a local agency to the applicant . . . for the
purpose of defraying all or a portion of the cost of public facilities related to the
development project . . . .’ (§ 66000, subd. (b), italics added.) Thus,
definitionally, a fee subject to the payment/protest procedure of section 66020
[does not] include[] . . . a connection fee (because it does not pay for public
facilities, only for the private party's connection to the system).” (Cal. Psychiatric
Transitions, supra, 111 Cal.App.4th at p. 1161.)
Similarly, in Capistrano Beach Water Dist. v. Taj Development Corp.
(1999) 72 Cal. App.4th 524, 529-530 (Capistrano Water Dist.), the Court of
Appeal held that sewer connection fees (§ 66013) paid by a developer to connect
its hotel to a sanitation district’s sewer system were not “fees” for a “development
project” under section 66000, subdivisions (a) and (b). Thus, fees imposed under
section 66013 could not be refunded. The court noted that: (1) the district did not
condition the approval of the hotel project on payment of the fee or impose the fee
in connection with issuing or approving a permit for development and (2) sections
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66013 and 66016 do not include a refund remedy. (Capistrano Water Dist., supra,
72 Cal. App.4th at pp. 528-529.)
In short, a fee does not become a “development fee” simply because it is
made in connection with a development project. (Cal. Psychiatric Transitions,
supra, 111 Cal.App.4th at p. 1161; see also Utility Cost Management, supra, 26
Cal.4th at p. 1191.) Just as fees imposed under section 66013 cannot be refunded
(Capistrano Water Dist., supra, 72 Cal.App.4th at pp. 527-530), fees imposed
under sections 66014 and 66016 cannot be refunded under sections 66020 and
66021.
Moreover, we must construe a statute in the context of the entire statutory
scheme of which it is a part, in order to achieve harmony among the parts.
(DeVita v. County of Napa (1995) 9 Cal.4th 763, 779; People v. Woodhead (1987)
43 Cal.3d 1002, 1009-1010.) Section 66016 applies specifically to building permit
fees and states the remedy for any facial overcharges: “If however, the fees or
service charges create revenues in excess of actual cost, those revenues shall be
used to reduce the fee or service charge creating the excess.” (§ 66016, subd. (a),
italics added.) Surplus fees that have been refunded cannot simultaneously be
“paid forward” to reduce fees. In other words, permitting both retrospective
refund and prospective reduction remedies would allow two different dispersions
of the same funds and would create incongruous results. Because section 66016
applies specifically to building permit fees, it prevails over the more general
statutes that might otherwise seem to conflict with it. (See San Francisco
Taxpayers Assn. v. Bd. of Supervisors (1992) 2 Cal.4th 571, 577-578.) When read
together, sections 66016, 66020, 66021, and 66022 do not authorize a refund
remedy for excessive regulatory fees.
Barratt argues that depriving individual fee payers, such as itself, of a
refund remedy is unfair because a prospective fee reduction remedy only benefits
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future fee payers collectively. By invoking the protest and refund procedure in
section 66020, Barratt necessarily claims that such protests are timely up to 90
days after imposition of the fees. (§ 66020, subd. (d)(1).) However, such fee
challenges would subject cities to suits for building permit fee refunds at any time
well beyond the 120-day limitations period set forth in section 66022. This would
undermine the purpose of that shortened limitations period, to give public agencies
“certainty with respect to the enforceability of their fee ordinances and
resolutions.” (Utility Cost Management, supra, 26 Cal.4th at p. 1197.) We must
apply the statutory scheme as written. Barratt’s concerns are more appropriately
brought to the attention of the Legislature.3
2. Penalty or Offset for Unauthorized “Special Taxes” Under Section
53728 Is an Inapplicable Remedy
Barratt sought declaratory relief under section 53728, asking the trial court
to impose a penalty on the City for collecting and retaining “special taxes” without
voter approval. Section 53728—a part of Proposition 62 (§§ 53720-53730)—
provides that property tax revenues allocated to the local government be reduced
by one dollar for each dollar of revenue attributable to an unauthorized “special
tax.”4 “Special taxes”—those imposed for specific purposes (§ 53721)—must be

3
Barratt argues that the lack of a refund remedy violates constitutional
guarantees of due process. Because the Court of Appeal did not address the due
process issue in its opinion and Barratt failed to file a petition for rehearing in that
court to bring any deficiency to the court’s attention, we do not address that claim.
(Cal. Rules of Court, rule 28(c)(2).)
4
Section 53728 states: “If any local government or district imposes any tax
without complying with the requirements of this Article, or in excess of its
authority as clarified by Section 53727, whether or not any provision of Section
53727 is held not applicable to such jurisdiction, the amount of property tax
revenue allocated to the jurisdiction pursuant to Chapter 6 of part 0.5 of Division 1
of the Revenue and Taxation Code (commencing with Section 95) shall be
reduced by one dollar ($1.00) for each one dollar ($1.00) of revenue attributable to

(footnote continued on next page)
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approved by a two-thirds vote of the electorate of the local government.
(§ 53722.) “In general, taxes are imposed for revenue purposes, rather than in
return for a specific benefit conferred or privilege granted. [Citations.]” (Sinclair
Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, 874 (Sinclair Paint
Co.).)
Barratt alleges that the surplus building permit and plan review fees are
unauthorized “special taxes,” which subject the City to a property tax allocation
reduction. However, it provides no authority for the claim that excess regulatory
fees constitute taxes. Simply because a fee exceeds the reasonable cost of
providing the service or regulatory activity for which it is charged does not
transform it into a tax. (See Alamo Rent-A-Car, Inc. v. Board of Supervisors
(1990) 221 Cal.App.3d 198, 205-206 [“reverse logic” does not compel the
conclusion that an allegedly excessive fee was a tax].) The specific statute—
section 66016—provides the exclusive remedy for overcharges. If actual revenues
exceed actual costs, the City must make a prospective fee adjustment by using that
surplus, in lieu of a fee revenue, to cover future expenses. (§ 66016, subd. (a).) It
cannot refund the excess or transfer it to the City’s general fund to replace or
augment tax revenue. (See Health & Saf. Code, §§ 17951, subd. (c) [local permit
fees “shall not be levied for general revenue purposes”], 19132.3 [same].)
Accordingly, the dollar-for-dollar penalty or offset allowed by section
53728 does not apply to Barratt’s claims. (See Sinclair Paint Co., supra, 15

(footnote continued from previous page)

such tax for each year that the tax is collected. Nothing in this section shall impair
the right of any citizen or taxpayer to maintain any action to invalidate any tax
imposed in violation of this Article.”
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Cal.4th at p. 876 [“special taxes” in article XIII A, section 4, of the California
Constitution do not include regulatory fees that do not exceed the reasonable cost
of providing services necessary to the activity for which the fee is charged and that
are not levied for unrelated revenue purposes].)
3. Writ of Mandate to Compel an Annual Fee Revision Is Not an
Available Remedy Under Article XIII B of the California
Constitution.
Barratt petitioned for a writ of mandate, alleging that the City caused
ongoing injury to Barratt, other builders, and consumers by failing to conduct an
annual financial audit and adopt a subsequent fee reduction, in violation of article
XIII B, section 1.5, of the California Constitution. It states: “The annual
calculation of the appropriations limit under this article for each entity of local
government shall be reviewed as part of an annual financial audit.” (Cal. Const.,
art. XIII B, § 1.5, italics added.) However, article XIII B expressly governs
government spending, not taxation and revenues. “While article XIII A was aimed
at controlling ad valorem property taxes and imposition of new special taxes
[citation], article XIII B is directed at controlling government spending.” (County
of Placer v. Corin (1980) 113 Cal.App.3d 443, 449.)
Nevertheless, Barratt argues that the City must audit the revenues received
from building permit and review fees to determine whether it has any surplus fees
that would constitute “proceeds of taxes.” Article XIII B of the California
Constitution imposes total annual “appropriations subject to limitation” (id., § 1),
defining that term as “any authorization to expend during a fiscal year the
proceeds of taxes levied by or for [the local government] entity.” (Cal. Const., art.
XIII B, § 8, subd. (b), italics added.) “ ‘Proceeds of taxes’ shall include . . . all tax
revenues and the proceeds to an entity of government, from (1) regulatory
licenses, user charges, and user fees to the extent that those proceeds exceed the
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costs reasonably borne by that entity in providing the regulation, product, or
service, and (2) the investment of tax revenues.” (Id., § 8, subd. (c).)
However, as the City correctly notes, an article XIII B annual financial
audit must only identify “proceeds of taxes,” including regulatory fees that
“exceed the costs reasonably borne” in providing regulatory services. (Cal.
Const., art. XIII B, § 8, subd. (c).) Neither section 1.5 nor section 8 of article XIII
B states that those costs must be actual costs, rather than reasonable estimates, or
that the fee-cost relationship must be determined over the course of a single year.
In short, those sections do not impose a duty on local government to conduct an
annual audit of its “proceeds of taxes.”
4. Resolution No. 02-023 Is Subject to Challenge Under Section
66022.
Resolution No. 02-023 establishes, as did the prior two resolutions, a
“comprehensive fee schedule” for many municipal services. Most of the fees in
resolution No. 02-023 remained the same as in resolution No. 00-268, except for
the establishment of some new fees that are not at issue here. It is not contested
that Barratt failed to meet section 66022’s limitations period regarding the 1999
and 2000 ordinances, but complied with that period regarding the 2002 ordinance.
Nevertheless, the City contends that, despite Barratt’s timely challenge to
the 2002 ordinance, resolution No. 02-023 is not subject to a validation action
because it was not an ordinance or resolution “adopting a new fee or service
charge, or modifying or amending an existing fee or service charge” within the
meaning of section 66022. Section 66022, subdivision (a), authorizes “[a]ny
judicial action or proceeding to attack, review, set aside, void, or annul an
ordinance, resolution, or motion adopting a new fee or service charge, or
modifying or amending an existing fee or service charge.” The City argues that
the permit fees have not changed since June 2000 (when Barratt began
17

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construction), and that Barratt should have sued within 120 days of the City’s
initial July 1999 adoption of its permit fee schedule in resolution No. 99-146.
Although Barratt sued within 120 days of the adoption of resolution No. 02-023
(in January 2002), that challenge to the validity of the ordinance was too late.
The Court of Appeal agreed with the City. It found that the 2002 ordinance
only reenacted and continued the previous fee ordinance, the 50-cent difference
was apparently a typographical error, and a reenactment is not a “new fee or
service charge, or modif[ication] or amend[ment of] an existing fee or service
charge.” (§ 66022, subd. (a).)
Barratt does not contest that the 50-cent difference in the 2002 ordinance
was merely a typographical error. But it argues that, even though the building
permit and plan review fees essentially remained the same, the legislative action
extending the allegedly excessive fees is nonetheless subject to attack under
section 66022. As explained below, we agree with Barratt.
The 2002 reenactment of the previous building permit and plan review fees
constituted a “modif[ication] or amend[ment of] an existing fee or service charge.”
(§ 66022, subd. (a).) Although the amount of the permit and plan review fees
remained the same, resolution No. 02-023 changed the duration of the fee by
extending its applicability, and by implication its validity. This change is
significant when considered with a local agency’s statutory duties. Local agencies
may not impose fees that exceed the estimated reasonable costs of providing the
services for which the fees are charged. (§§ 66014, subd. (a), 66016, subd. (a).)
“If, however, the fees or service charges create revenues in excess of actual cost,
those revenues shall be used to reduce the fee or service charge creating the
excess.” (§ 66016, subd. (a), italics added; see Larson v. State Personnel Bd.
(1994) 28 Cal.App.4th 265, 276 [“The ordinary meaning of ‘shall’ or ‘must’ is of
mandatory effect . . . .”].) However, the applicable statutes do not specify how
18

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often the local agencies must make the required accounting. As Barratt points out,
if a fee was not challenged at its initial enactment, then the validity of all
subsequent reenactments would be immune to judicial challenge or review. Thus,
there would be no effective enforcement mechanism to ensure that local agencies
are complying with their duty to reduce the fees if revenues exceed actual costs.
Barratt further argues that this immunity from judicial review creates an incentive
for local agencies to overvalue the estimated costs of services and then continually
readopt that fee.
We find Barratt’s arguments to be persuasive, especially in light of the facts
in this case. In accordance with section 66016, subdivision (a), the City made
public the data supporting its fee calculations before its scheduled public hearing.
After a public hearing and adoption of resolution No. 02-023, the City published
those fees in its “new comprehensive fee schedule,”5 stating it “resolve[d] that the
following fees are established.” (Italics added.) When the City adopted that
resolution, it implicitly represented that the building permit and plan review fees
continued to be valid. This determination would have or should have required
some type of accounting of operating expenses and revenues, resulting in either
surplus revenues, a deficit, or no required change in the fees.
Here, although the building permit fees remained the same, other fees
included in the 2002 comprehensive fee resolution had changed. As Barratt
argues, the City’s reenactment of its building permit fees as part of a revised

5
Resolution No. 02-023 contained the following description: “A resolution
of the City Council of the City of Rancho Cucamonga, California, establishing a
new comprehensive fee schedule for permits and services provided by all city
departments, the Rancho Cucamonga Fire Protection District and the Rancho
Cucamonga Police Department, by modifying certain fees established in
Resolution 00-286.”
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comprehensive fee resolution is analogous to legislation at the state level that
amends a portion of a statute while leaving the unamended portion unchanged.
Under the “reenactment rule” of statutory interpretation, the unamended portion of
the statute is reenacted with the enactment of the amendment, so that the statute is
deemed to have been acted on as a whole.6 (See Brown v. Superior Court (1982)
33 Cal.3d 242, 251-252; People v. Scott (1987) 194 Cal.App.3d 550, 554-556.)
Thus, resolution No. 02-023 reflects the City’s judgment that the fees charged do
not exceed the estimated reasonable cost of providing the services for which the
fee is charged, as those costs were estimated and projected into the future from the
date of enactment of resolution 02-023.
We conclude that, contrary to the Court of Appeal’s holding, Barratt could
seek to invalidate the building permit and plan review fees in resolution No. 02-
023, and that its challenge was timely as to applicable claims arising after January
16, 2002, the effective date of the resolution.

6
Relying on a different rule of statutory interpretation, the City argues that
the reenactment continues the effect of the unmodified portion of a statute
unabated and without interruption. (In re Johnny Dapper (1969) 71 Cal.2d 184,
189 [where a statute is repealed and at the same time reenacted without substantial
change, there is no break in the continuous operation of the old statute, and no
abatement of any legal consequences of acts done under the old statute]; Orange
County Water Dist. v. Farnsworth (1956) 138 Cal.App.2d 518, 524-525; Sobey v.
Molony (1940) 40 Cal.App.2d 381, 385.) Both rules seek to determine and
effectuate legislative purpose and intent and can be reconciled as applied to this
case. The reenactment continues the effect of the unmodified portion of the
ordinance unabated to the extent that any payment obligations under resolution
No. 00-268 continue and are not interrupted even though that resolution had been
superseded by resolution No. 02-023.
20

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5. Writ of Mandate Is Not an Available Remedy to Enforce a Local
Agency’s Duty Under Section 66016 in this Case Because Barratt
Has or Had an Adequate Legal Remedy.
Barratt alleges that the City has a “continuing pattern” of refusing to
perform its statutory duty to review and adjust building permit fees. Accordingly,
Barratt sought a writ of mandate to compel the City to conduct a review and apply
any surplus building permit and plan review fees to reduce prospective fees, in
compliance with section 66016. The Court of Appeal held that a mandamus action
under section 66016 was either untimely under section 66022 or inappropriate.
The court concluded that the mandamus cause of action was essentially a facial
challenge to the building permit fees, and that Barratt failed to seek a validation
action in a timely manner. It further concluded that courts cannot command any
action under sections 66014 and 66016 because the fees are set and revised by the
exercise of legislative discretion. We agree with the Court of Appeal that a writ of
mandate is not an available remedy in this case, but for a different reason: Barratt
has or had an adequate legal remedy.
As discussed above, the reenactment of the building permit and plan review
fees in resolution No. 02-023 constituted a modification or amendment of those
fees, which were subject to validation under section 66022. The same holds true
for resolutions No. 99-146 and No. 00-268, because the City followed the same
public hearing procedures and reestablished a comprehensive fee schedule as it did
with resolution No. 02-023. In adopting those resolutions, the City implicitly
represented it had complied with section 66016. That is, resolutions No. 99-146,
No. 00-268, and No. 02-023 represented, as of their effective dates, reasonable
estimates of costs and revenues, including proper adjustments for over- or under-
recovery under previous fee structures. In other words, the City presumably
performed the very same financial analysis under section 66016 that Barratt’s
mandamus cause of action demanded. Thus, Barratt’s allegation in its mandamus
21

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action that the City had continually refused to perform its statutory duty to review
and adjust building permit fees is inconsistent with its assertion in its validation
action that the City conducted a review, but reenacted invalid new and amended
permit fees.
The fact that Barratt is time-barred from challenging the facial validity of
the fee schedules in resolutions No. 99-146 and No. 00-268 does not change the
result. Where the Legislature has provided for a validation action to review
government actions, mandamus is unavailable to bypass the statutory remedy after
the limitations period has expired. (Embarcadero Mun. Improvement Dist. v.
County of Santa Barbara (2001) 88 Cal.App.4th 781, 789-793; Hills for Everyone
v. Local Agency Formation Com. (1980) 105 Cal.App.3d 461, 467-468.) As for
resolution No. 02-023, because we find that Barratt may facially challenge the
permit fees therein, a parallel mandate action would be unnecessary and
inappropriate. (See Code Civ. Proc., § 1086 [writ of mandate must be issued
where there is not a plain, speedy, and adequate remedy in the ordinary course of
law.].) In light of this disposition, we need not determine whether the Court of
Appeal correctly held that courts cannot enforce a local agency’s section 66016
duty to review and adjust building permit fees by way of a writ of mandate.
22

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III. DISPOSITION
We reverse the judgment of the Court of Appeal relating to the dismissal of
the resolution No. 02-023 validation action (fifth cause of action) and affirm its
judgment in all other respects. The matter is remanded to the Court of Appeal
with directions to modify the judgment of the trial court and order reinstatement of
the validation action challenging resolution No. 02-023, and to affirm the
judgment as amended.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
COFFEE, J.*

_____________________________________

* Associate Justice of the Court of Appeal, Second Appellate District, Division
Six, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
23

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Barratt American Inc. v. City of Rancho Cucamonga
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 709
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S117590
Date Filed: December 22, 2005
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Joseph E. Johnston

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Walter P. McNeill, Walter P. McNeill; Law Offices of Richard D. Gann and Richard D.
Gann for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton and David P. Lanferman for California Building Industry
Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Jonathan M. Coupal and Timothy A. Bittle for Howard Jarvis Taxpayers Association as Amicus Curiae on
behalf of Plaintiff and Appellant.

Law Office of Brent & Klein and Jason G. Brent for George C. Jenkins as Amicus Curiae on behalf of
Plaintiff and Appellant.

James S. Burling and Meriem L. Hubbard for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiff and Appellant.



__________________________________________________________________________________

Attorneys for Respondent:

Richards, Watson & Gershon, James L. Markman, B. Tilden Kim and Juliet E. Cox for Defendant and
Respondent.

Best, Best & Krieger, Jeffrey V. Dunn and Mark D. Servino for League of California Cities and California
State Association of Counties as Amici Curiae on behalf of Defendant and Respondent.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Walter P. McNeill
Law Offices of Walter P. McNeill
280 Hemsted Drive, Suite E
Redding, CA 96002
(530) 222-8992

David P. Lanferman
Sheppard, Mullin, Richter & Hampton
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111
(415) 434-9100

B. Tilden Kim
Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071
(213) 626-8484

Jeffrey V. Dunn
Best, Best & Krieger
5 Park Plaza, Suite 1500
Irvine, CA 92164
(949) 263-2600

2

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Opinion Information

Date:	Docket Number:
Thu, 12/22/2005	S117590

Disposition
Dec 22 2005	Opinion filed

Dockets
Jul 18 2003	Petition for review filed   by counsel for aplt (c/a opin filed 5-28, cert for pub 6-10)
Jul 22 2003	Record requested
Jul 24 2003	Received Court of Appeal record   one doghouse
Aug 8 2003	Answer to petition for review filed   by counsel for respondent (City of Rancho Cucamonga) (40k)
Sep 8 2003	Time extended to grant or deny review   to and including October 16, 2003, or the date upon which review is either granted or denied.
Oct 1 2003	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 8 2003	Certification of interested entities or persons filed   by counsel for City of Rancho Cucamonga
Oct 8 2003	Certification of interested entities or persons filed   by counsel for (Barratt American Inc.)
Oct 30 2003	Opening brief on the merits filed   by counsel for aplts. (Barratt Amer. Corp.)
Nov 17 2003	Request for extension of time filed
Nov 19 2003	Extension of time granted   respondent's time to serve and file the answer brief on the merits is extended to and including December 31, 2003.
Jan 2 2004	Answer brief on the merits filed   by counsel for resp. (City of Rancho Cucamonga, et al.) (40k)
Jan 21 2004	Reply brief filed (case fully briefed)   counsel for ptnr. (Barratt Ameri. Inc.)
Feb 9 2004	Received application to file amicus curiae brief; with brief   George C. Jenkins (non-party)
Feb 17 2004	Permission to file amicus curiae brief granted   George C. Jenkins (non-party)
Feb 17 2004	Amicus curiae brief filed   George C. Jenkins in support of appellant (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 20 2004	Received application to file amicus curiae brief; with brief   The California Building Industry Association (non-party) in support of plaintiff w/Request for Judicial Notice.
Feb 20 2004	Received application to file amicus curiae brief; with brief   Pacific Legal Foundation in support of appellant.
Feb 20 2004	Received application to file amicus curiae brief; with brief   League of Calif Cities and Calif State Assn of Counties
Feb 20 2004	Request for Judicial Notice received (in non-AA proceeding)   w/reqt for permission to submit Reqt for judicial notice League of Calif Cities and Calif State Assn of Counties
Feb 24 2004	Received:   from Howard Jarvis Taxpayers Assoc. (late) appl. to file amicus curiae.
Feb 24 2004	Permission to file amicus curiae brief granted   Pacific Legal Foundation (non-party) in support of appellant.
Feb 24 2004	Amicus curiae brief filed   Pacific Legal Foundation. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 27 2004	Permission to file amicus curiae brief granted   California Building Industry Asso.
Feb 27 2004	Amicus curiae brief filed   California Bldg. Industry Assoc. (non-party) in support of petitioner. An answer thereto may be served andf filed by any party within twenty days of the filing of the brief.
Feb 27 2004	Request for judicial notice filed (in granted case)   Calif. Bldg. Industry Assoc. (non-party)
Feb 27 2004	Application for relief from default filed   by counsel for Howard Jarvis Taxpayers Assoc. for permisson to file late amicus curiae brief.
Mar 1 2004	Permission to file amicus curiae brief granted   League of California Cities and California Association of Counties
Mar 1 2004	Amicus curiae brief filed   by League of Calif. Cities and Calif. Assoc. of Counties in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 1 2004	Request for judicial notice filed (in granted case)   League of California Cities and Calif. Assoc. of Counties. with exhibits.
Mar 4 2004	Permission to file amicus curiae brief granted   Howard Jarvis Taxpayers Assn. (non-party)
Mar 4 2004	Amicus curiae brief filed   Howard Jarvis Taxpayers Assn. in support of petnr. An answer thereto may be served and filed by any party within twenty days of the filling of the brief.
Mar 4 2004	Request for extension of time filed   to file (consolidated) response to ac briefs to 3-22-04>> respondents City of Rancho Cucamonga & City Council of Rancho Cucamonga
Mar 9 2004	Extension of time granted   Respondent's time to serve and file the consolidated response to amicus curiae briefs is extended to and including March 22, 2004.
Mar 23 2004	Response to amicus curiae brief filed   by counsel for resps. (City of Rancho Cucamonga, et al.) **consolidated response ** (40k)
Mar 23 2004	Response to amicus curiae brief filed   by counsel for plfs. (Barratt Amer. Inc.) (40k)
Apr 26 2004	Received:   from counsel for resp. (City of Rancho Cucamonga) letter re: recent decison fo CA 4/1
Aug 31 2005	Case ordered on calendar   10/05/05, 2pm, in Redding, City Hall
Sep 9 2005	Filed:   Application of appellant to divide oral argument time with amici.
Sep 12 2005	Filed:   Application of respondent to divide oral argument time with amici.
Sep 15 2005	Order filed   The request of counsel to allow two counsel to argue on behalf of appellant at oral argument is hereby granted.
Sep 15 2005	Order filed   The request of appellant to allocate to amicus curiae California Building Industry Association 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Sep 15 2005	Order filed   The request of counsel to allow two counsel to argue on behalf of respondent at oral argument is hereby granted.
Sep 15 2005	Order filed   The request of respondent to allocate to amicus curiae California Cities and California State Association of Counties 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Sep 21 2005	Supplemental brief filed   Additional Authorities>>respondents City of Rancho Cucamonga & City Council for the City of Rancho Cucamonga
Sep 22 2005	Received:   from counsel for Barratt American Inc,) List of Additional Authorities for Citation
Sep 22 2005	Request for judicial notice granted   The requests for judicial notice filed on February 27, 2004, and March 1, 2004 are hereby granted.
Sep 28 2005	Change of contact information filed for:   counesl for amicus curiae Pacific Legal Foundation
Oct 5 2005	Cause argued and submitted
Dec 22 2005	Opinion filed   Reversed in part, affirmed in part, and remanded to the Court of Appeal with directions. OPINION BY: Chin, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Moreno, Coffee, JJ. (assigned by the C.J.)
Jan 24 2006	Remittitur issued (civil case)
Jan 31 2006	Received:   receipt for remittitur from CA 4/2
Feb 28 2006	Note:   records returned 3 volumes

Briefs
Oct 30 2003	Opening brief on the merits filed
Jan 2 2004	Answer brief on the merits filed
Jan 21 2004	Reply brief filed (case fully briefed)
Feb 17 2004	Amicus curiae brief filed
Feb 24 2004	Amicus curiae brief filed
Feb 27 2004	Amicus curiae brief filed
Mar 1 2004	Amicus curiae brief filed
Mar 4 2004	Amicus curiae brief filed
Mar 23 2004	Response to amicus curiae brief filed
Mar 23 2004	Response to amicus curiae brief filed

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