In the recent California Third District Court of Appeal decision, Alliance for Responsible Planning v. Taylor, — Cal.Rptr.3d —-, Case No. 085712 (May 4, 2021), the Court determined that an initiative measure requiring new development projects to mitigate both the individual project’s traffic levels of service (“LOS”) impacts, and also the cumulative traffic LOS impacts of other projects, to be unconstitutional. More specifically, El Dorado County voters adopted Measure E in 2016, which modified the El Dorado County General Plan to require all road capacity improvements to be fully completed by the project proponent “to prevent cumulative traffic impacts from new development from reaching Level of Service F … before any form of discretionary approval can be given to a project.” (Underline added.)

The petitioner sued under the theory that Measure E constituted an unconstitutional exaction by effectively requiring developers to pay for their specific project’s impacts, and also the cumulative impacts of other projects. The Fifth District Court of Appeal agreed. The Court found that Measure E would require developers to complete improvements addressing impacts beyond its own, and this exceeded the rough proportionality requirement articulated by the United States Supreme Court in Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374. Accordingly, the Court found Measure E to be an unconstitutional exaction.

In addition, the Court rejected the defendant’s attempt to characterize Measure E as a land use control rather than an exaction. The Court reasoned that Measure E required a developer to give up a property interest as a condition of approval (i.e., the developer must complete or construct road improvements), and this requirement was distinguishable from cases that have found other requirements (e.g., requiring developers to provide low-income housing) to be land use controls and not exactions.

A copy of the decision can be accessed here.