A dispute between a 72-year-old retiree in Placerville and El Dorado County over a $23,420 building fee got its day before the country’s highest court this morning, in a case with potentially seismic consequences for local government budgets and housing markets across California and the country.

At issue is just how far cities and counties have to go to justify “impact fees”: fees slapped on new construction projects in order to offset the toll new developments take on local infrastructure.

The stakes are especially high in California, where impact fees can tack on hundreds of thousands of dollars to new housing projects that are already among the most expensive to build in the nation.

The plaintiff in this case wants to put new guardrails on those fees. But that would come at a sharp cost: Local governments, restricted by California law from raising property taxes and borrowing funds, disproportionately rely on impact fees to pay for infrastructure like roads and sewer lines.

The justices waded deep into the legal weeds of the case during oral arguments today and seemed alternately frustrated and bemused as they grappled with whether El Dorado County’s fee should be treated like the government were seizing a homeowner’s property, a simple tax or something in between.

The legal saga began in 2016 when George Sheetz, a retired engineering consultant, built a small manufactured home on a vacant tract in the Sierra foothill city of Placerville. The county stuck Sheetz with the five-figure “impact fee” to fund local roads, highways and bridges. Sheetz paid up, but then sued.

With the backing of a conservative legal nonprofit, the Pacific Legal Foundation, he argued that, contrary to a four-decade old Supreme Court precedent, the county had failed to prove that the fee accurately reflected the wear and tear his small project would likely leave on local roads.

“Everyone loves good roads and schools and public infrastructure, so the government certainly has many tools at its disposal, including taxes to pay for those,” said Paul Beard, Sheetz’s attorney, in presenting his case before the court today. “What we’re saying is that the government can’t select a few…property owners who happen to need a permit at any given time — to select them to bear the burdens of paying for that public infrastructure.”

The lawyer representing the county countered that officials had done the legally required due diligence to justify the fee. But even if they hadn’t, they added, fees passed by local elected bodies that apply equally to all applicants — as opposed to one-off exactions levied on a specific development — don’t warrant such close judicial scrutiny.

Requiring cities and counties to enact fees only after they’ve done a thorough, property-specific analysis of the impact a proposed development would have on local roads, for example, “would disrupt if not destroy their ability to fund capital intensive infrastructure necessary to serve new development, bringing such development to a grinding halt,” said Aileen Marie McGrath, the attorney for El Dorado.

With so much potentially at stake, the case has drawn the attention of a wide array of competing interests. Building industry groups, conservative property right defenders and Yes In My Backyard advocates have all filed briefs pleading with the court to force local governments to clear a higher bar before charging for the right to build.

A decision against Sheetz would only encourage “unconstrained exactions on new development, further adding to the crushing costs of housing in California and other jurisdictions that refuse to require governments to show any proportionality between the amount of fees demanded and the alleged impacts of new development,” the California Building Industry Association wrote in its brief from June.

“Unless you want a dirt road and like, you know, bandits out there because we don’t have a sheriff, we need to have some level of an assessment done.”
— Mark Neuburger, legislative advocate, California State Association of Counties

City and county government groups, along with the governments of both the state of California and the United States, have come to El Dorado County’s defense.

Many court watchers expect the court’s conservative majority to side with the burdened property owner and require the cities and counties to work a bit harder to justify the fees they impose on new home construction. It remains unclear for now just how far such a ruling could go and whether it might place fresh limits on other widely used housing and revenue-raising policies.

“It seems kind of like a nightmare to figure out where the line should be drawn,” Justice Amy Coney Barrett said.

A uniquely California case

Though today’s debate took place in the ethereal clouds of abstract constitutional consideration, for California developers, the issue at hand is plenty concrete. As a group, they’ve spent a generation griping about impact fees.

As of 2015, the average impact fee on a single family home in California was more than quadruple what it was in other states, according to a survey. While such fees were found in a “minority” of jurisdictions outside of California, they were “virtually universal” here.

In a 2018 study from UC Berkeley’s Terner Center, impact fees in a survey of California cities ranged from between 6% to 18% of the local median home price.

It’s not especially surprising that California cities and counties have come to rely so heavily upon this particular form of financing.

During the high-growth decades of the 1950s and ’60s, local governments could easily assume that new development would pay for its own added toll on publicly funded roads and pipes through increased property tax revenue. That changed in 1978, when voters passed Proposition 13, capping local property taxes and muzzling the ability of local governments to borrow or raise new taxes.

That’s led to some frustration from El Dorado County and its defenders. If impact fees are intolerable, some have asked, what are the alternatives?

“Unless you want a dirt road and like, you know, bandits out there because we don’t have a sheriff, we need to have some level of an assessment done,” said Mark Neuburger, a legislative advocate for the California State Association of Counties. “It’s unfortunate when it’s a noticeable size of your project, but we live in a modern society and this is just part of the expense of paying for it.”

Sheetz and his supporters contend that these fees aren’t justified solely on meeting specific, related infrastructure costs and point to the wide variability in fees from one city to the next — even between neighboring jurisdictions.

As the city of Oakland noted in a recent report, its typical fee on large apartment projects comes out to $39,264 per unit. The neighboring city of Berkeley, sets the tab at $66,594. Across the Bay in San Francisco, the fee is $74,597.

At the more extreme end, the 2018 Terner Center study found that the city of Fremont imposed a single-family home impact fee of $157,000.

“You look at places like Fremont and they have these immaculate parks that are funded very significantly by impact fees,” said David Garcia, the center’s policy director. “There’s a question whether it’s reasonable to want to have top notch services and infrastructure, but for that to come on the backs of new residents.”

A fee or “out-and-out” extortion

The origins of this particular debate date back to another legal dispute brought by Californians trying to build a new house.

In the early 1980s, James and Marilyn Nollan, a Ventura County couple, decided to convert their coastal bungalow into a two-story home. The California Coastal Commission, which regulates land use along the state’s coastline, issued a construction permit, but only on the condition that the couple give up a slice of their property to allow for a public walkway to the beach.

In 1987, the U.S. Supreme Court ruled that the Coastal Commission had overstepped. If the government wants to take someone’s private property in exchange for granting them a land-use permit, there has to be some obvious connection between the property being seized (in this case, a slice of land for a walking path) and the government’s purpose in restricting development in the first place (capping a building for the preservation of ocean views), the court held. Because there was no “essential nexus” between the two in this case, Justice Antonin Scalia wrote in his majority opinion, taking the Nollans’ property was “not a valid regulation of land use,” but amounted to “an out-and-out plan of extortion.”

“Why is a fee attached to a development any different from any other kind of tax? No one has a good explanation for that.”
— Chris Elmendorf, Law professor, UC Davis

In subsequent rulings, the Supreme Court laid out further limits on this kind of public-sector “extortion.” In the 1990s, the court found that the cost of getting a permit also has to be roughly proportionate to the impact a development is likely to have on the public. In 2013, the court ruled that these “nexus” and “proportionality” standards don’t just apply to the taking of physical property, but monetary fees made in lieu of giving up land, too.

Sheetz and his legal supporters argue that it’s time for the court to apply the “nexus” and “proportionality” rules to El Dorado — and to local impact fees across the country.

The California exemption

In response, El Dorado County and its cavalcade of legal allies put up a double-barreled defense.

First, California courts, along with those in many other blue states, have carved out a major exception to the Supreme Court’s rules. Fees slapped on individuals on an ad hoc basis — by say, by the Coastal Commission in adjudicating a single permit — might lack transparency, political accountability and be ripe for abuse. But fee schedules — voted upon by city councils or county boards of supervisors and that apply to all applicants across the board — don’t deserve such special treatment, the state’s courts have found.

The logic for that distinction, in part, comes down to political accountability.

“A city council that charged extortionate fees for all property development, unjustifiable by mitigation needs, would likely face widespread and well-financed opposition at the next election,” the California Court of Appeal noted when it ruled against Sheetz in 2022.

The fee that El Dorado County levied on Sheetz was passed as part of a general road and highway funding program. Sheetz’s specific fee was based on the size and location of his single family project, as listed on a menu of such fees on the county’s website.

In bringing the case, Sheetz’ legal team asked the U.S. Supreme Court to do away with this “California’s judicially-created exemption.” Some members of the court’s conservative majority appeared ready to do exactly that.

“There’s just no categorical exemption from legislative enactments — what would be wrong with that holding today?” said Justice Neil Gorsuch.

Treating such a set of fees as comparable to the seizing of an individual’s private property could open a whole can of constitutional worms, said UC Davis law professor Chris Elmendorf.

“Why is a fee attached to a development any different from any other kind of tax? No one has a good explanation for that,” he said. He also pointed to local inclusionary zoning rules, in which cities permit new housing projects in exchange for a developer making a certain share of the units affordable, as another policy that could find itself on the chopping block if Sheetz succeeds at the Supreme Court.

Another local policy that could find itself ensnared in a ruling for Sheetz: Requirements that large developments set aside space for public art or pay a fee if they don’t.

Many of the justices, especially the court’s three-member liberal minority, seemed to have a hard time identifying a distinction between across-the-board impact fees and other types of taxation that don’t require a court’s fine-toothed once-over.

Justice Sonia Sotomayor likened El Dorado County’s impact fee system to a set of user fees, building permits or even a road toll.

“If you’re going to start saying, as you did, that you’re reserving the right to say that a toll could be an unconstitutional taking, I bet New York City is going to be sued very soon on that on that toll to come down into Lower Manhattan,” Sotomayor, who was born in the Bronx, told Sheetz’s counsel. “At what point do we stop interfering?”

Already complying

If the court doesn’t buy that particular argument, the county put up a second one: It is already abiding by the court’s prior rulings.

A state law, known as the Mitigation Fee Act from 1987, requires local governments to justify the fees that they impose with detailed studies that show a connection between the fee levied on a new development and the financial impact that development is likely to impose on local infrastructure.

In conducting those analyses, they argue, California counties are already complying with the Supreme Court’s standards.

For Sheetz’s proponents, those “nexus studies” are a paltry substitute for heightened judicial scrutiny.

These studies often amount to “high-level black boxes” that can justify a wide range of potential charges, said the Terner Center’s Garcia. In California, state courts have historically been reluctant to second-guess those analyses.

If the high court does ultimately decide that a more rigorous, project-by-project analysis is required, the implications could be dramatic — and not in the way that plaintiffs either imagine or hope, warned Jennifer Henning, a lawyer with the California State Association of Counties.

“I don’t think it’s going to result in zero fees,” she said of a possible Sheetz victory.

What it would almost certainly do is “really slow down and make more expensive the process of pulling permits and doing other kinds of development projects,” she said. “We’re just concerned, particularly in the middle of a housing crisis.”

Even Trump-appointed Justice Brett Kavanaugh worried about the practical workability of that requirement in his back-and-forth with Beard, Sheetz’s lawyer.

“Your way is going to be more time consuming (and) administratively burdensome,” he said.

“It very well may be,” said Beard. “But this is a constitutional standard.”

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CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

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Well, it’s Tuesday.

And that usually doesn’t mean much. But this Tuesday, Jan. 9, 2024, was supposed to be THE Tuesday, the Tuesday when the famed Little Caesar’s in Fortuna was going to finally open its doors. 

But alas, the Friendly City will have no Crazy Bread™ today. As some of you Little Caesar’s die-hards have surely already noticed, the chain pizzeria at 898 Main Street in Fortuna, is still not open, though your Lost Coast Outpost had told you that today would be the day. We deeply apologize for misleading the, no doubt, hundreds of people who flocked to the location today for shockingly low-priced pizza and sides. 

In case you’re in the dark about why we at the Outpost are making such a big deal about the Fortuna Little Caesar’s, here’s a little background: The Little’s Caesar’s was built more than two years ago, prompting some people to naturally ponder when it would open and start serving those Hot-N-Ready™ pizzas. The location did open briefly a little more than a year ago, but quickly shuttered again, leaving the community puzzled. The question of “when will the Fortuna Little Caesar’s open?” has since become a running joke within the online community and even prompted the start of a Facebook group “Fortuna Little Caesar’s ‘when will they open’.” 

So the Outpost sought answers, eventually getting in touch with the business’s new owner, Gurbrinder Sandhu, who said that the plan was to open the location on Tuesday, Jan. 9. Of course, unforeseen circumstances can cause plans to change, and now Sandu said he’s not entirely sure how soon the restaurant can open. 

“Due to some pending legal documents issues, we couldn’t open the store today,” Sandhu wrote to the Outpost. “But [I] will let you know in advance for the possible opening date.” 

Sandhu added that he has everything else he needs to open up the spot, including obtaining all the necessary permits and passing inspections. He just needs the previous owner to complete the document before everything can be final. As Sandhu mentioned in a previous article, the old owners are going through some family difficulties, and have been difficult to pin down. 

It’s a little deflating, we know. But, because this ongoing story is so very important, the Outpost will keep the pizza-hungry community posted on any new developments. In the meantime, you can grab some local pizza, and continue to speculate and share lore on social media, which is clearly the best part about this whole story anyway. 

“It’s really depressing that they’re not open yet still,” Kyle Holberg, founder and administrator of the “Fortuna Little Caesar’s ‘when will they open’” Facebook group told the Outpost. “But really I’m in it for the jokes and [I’m] glad I live in a community with a sense of humor.”

PREVIOUSLY:

•  LoCO Interview: Meet the Folks at RWE, One of the Energy Companies Working to Bring Floating Offshore Wind Facilities to Humboldt’s Coast

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Press release from RWE:

RWE, a world-leading developer of offshore wind, released the official name of its Northern California project today — Canopy Offshore Wind Farm (Canopy). Coming near the one-year anniversary of RWE’s successful bid in the 2022 federal offshore lease auction where the company secured the right to develop an up to 1.6 GW project 28 miles off the coast of Humboldt County, the announcement marks another key step for one of the first commercial-scale floating offshore wind farms that will deliver sustainable power and help firmly position the North Coast as a hub for the floating offshore wind industry on the West Coast.

“The name, Canopy, is our nod to the region’s iconic redwoods and a look forward to a future where Humboldt is home to a world-class offshore wind project that will provide new economic opportunities, including green jobs for the region, and power a clean grid,” said Canopy Offshore Wind Farm Project Director Rob Mastria. “The project name symbolizes RWE’s commitment to planting roots in this unique community and to developing a project that will bring generational investments to the region while moving the state closer to net-zero.”

RWE’s track record of successful project development in offshore wind and other renewable technologies has been built on its understanding that a proactive, inclusive approach is what ensures communities are informed, projects are safe, sustainable and generate positive economic impact.

To support this inclusive approach and its long-term investment in the Humboldt region, RWE plans to open an office in downtown Eureka in early 2024 for its local team, which recently expanded with the addition of three new hires focused on building relationships, providing transparent project updates and continuing to engage the community during every step of Canopy’s development.

“Offshore wind presents tremendous opportunity and potential for the communities of the North Coast. To be successful, the process must be inclusive and well understood from the start, working with all stakeholders, including partners in higher education, Tribal nations, labor unions and local governments to bring responsibly developed projects online. RWE’s investment in its community presence will support the type of collaborative, collective effort needed to achieve California’s climate goals with transformational clean energy projects,” said Assemblymember Jim Wood (D-Healdsburg).

Canopy will have the potential to power more than 600,000 homes and is expected to be in operation by the mid-2030s. Ushering in an innovative new industry to Humboldt, the project will bring with it significant infrastructure investment, jobs and local benefits for generations to come. For the Canopy project, that will mean a skilled workforce for construction and the long-term operation and maintenance of Canopy’s floating turbines.

“The Office of Economic Development is excited to partner with RWE to harness the significant opportunities that California’s emerging offshore wind industry offers. Canopy will breathe new life into Humboldt’s economy with local workers being trained to build and operate groundbreaking clean energy technology right here in our own backyard,” said Scott Adair, director of the Humboldt County Office of Economic Development.

“We’re thrilled to have RWE as our neighbor in downtown Eureka. Canopy represents a significant, long-term endeavor for Humboldt and RWE’s expanding local team demonstrates their commitment to a project that will provide economic opportunity and clean energy to the region for decades to come,” said Nancy Olson, President and CEO of the Greater Eureka Chamber of Commerce.

“It is great to see RWE’s Canopy project progressing in Humboldt. Offshore wind will be a win for labor, bringing decades of meaningful, middle-class jobs in construction and ongoing operations and revitalizing regional supply chains,” said Jeff Hunerlach, Secretary-Treasurer of the Humboldt-Del Norte Building & Construction Trades Council.

A pioneer of floating technology and one of the world’s most prominent offshore wind companies, RWE is active across the entire value chain, from project conception to development, construction, operation and maintenance Working collaboratively with industry partners and local institutions, RWE’s experience will help Humboldt develop into an offshore wind energy hub while protecting the area’s coastline and ocean ecosystem. Through ongoing, extensive conversations with regional governments, constituents, Tribal Nations and fishermen, the Canopy team will ensure this critical project is developed in a responsible, equitable manner.

Press release from the Bureau of Land Management:

Falk, a historic town and lumber mill site nestled in the Bureau of Land Management Headwaters Forest Reserve, has been named to the National Register of Historic Places.

Listed officially as the Falk Archaeological District, the designation recognizes the site as an area of national significance and worthy of preservation. Remnants of the townsite are visible and marked with interpretive signs along the first half-mile of the Elk River Trail. The most impressive remnant is a fully restored locomotive barn that now serves as an education center.

Archaeological investigations conducted by Humbolt State University (now Cal Poly Humboldt) over 14 years yielded the information that led to approval by the National Park Service, which oversees the National Register of Historic Places, for the Falk listing.

“Credit also goes to our staff and Friends of Headwaters who have found creative ways to explain the history of

Falk through interpretation and restoration,” said Collin Ewing, manager of the BLM Arcata Field Office which oversees the Reserve. “Signs highlighting town remnants make it possible for visitors to visualize life in Falk.”

Falk was a busy logging and mill town from 1884 to 1937. Workers toiled deep in the now-protected redwood stands, felling trees, shipping them on Falk’s very own railroad to the mill, and finally sending the lumber to worldwide markets via a port at present day Eureka. Falk had housing for workers, supported work camps and featured infrastructure, including a mill pond, to keep the lumber operation going. After work stopped, the site fell into decline and decay. The property owners razed the buildings in the 1960s due to safety concerns.

The Reserve was established in 1999, after the BLM and California State Wildlife Conservation Board purchased the 7,400-acre Headwaters Forest. Information on access can be found online.

Press release from the Humboldt County Sheriff’s Office:

Goodwin

On 1/4/2024, at about 12:10 p.m., Humboldt County Sheriff’s deputies were dispatched to the 3600 block of Central Avenue in McKinleyville for the report of a male subject causing a disturbance.

Deputies arrived on scene and located a male subject inside a nearby trailer. Deputies identified the male subject as 31-year-old Tyler Goodwin, who had several outstanding misdemeanor warrants.

Deputies detained Goodwin and during a search approximately 7 grams of Fentanyl was located on his person. Deputies also located a small CO2 canister which had been modified into an explosive device.

A Humboldt County explosive ordnance deputy responded to the scene and determined the device was in fact a functional explosive. The device was collected and transported away from the area where it was rendered safe.

Goodwin was booked into the Humboldt County Correctional Facility for possession of a controlled substance (H&S 11350(A)) and possession of an explosive device (PC 18715(A)(3)).

This case is still under investigation.

Anyone with information about this case or related criminal activity is encouraged to call the Humboldt County Sheriff’s Office at (707) 445-7251 or the Sheriff’s Office Crime Tip line at (707) 268-2539.

John Chester Burman
June 4, 1946 – Jan. 3, 2024

John Chester Burman, 77, passed away peacefully after a long battle with Alzheimer’s on January 3, 2024.

John was born one of four children to Rose and Chester Burman on June 6, 1946 in Eureka. He was a Humboldt native who graduated from Eureka High School in 1965. John was known for his athletic ability in football and track & field were he achieved greatness with his speed.

John “Jetstream” Burman continued after Eureka high to excel in football and track at Shasta Junior College. He then returned to Humboldt where he finished his sports career at HSU. John continued to shine there and hold multiple football records at HSU. He was inducted into the HSU Hall of Fame in 1978. During his career at HSU he received many awards, including Western All-Conference and Most Valuable Player. He officially hung up his cleats after making it through three cuts on the 49ers football team.

After college he followed in the footsteps of his father Chester Burman as a longshoreman for 35 years locally. He thrived in the outdoors as an avid hunter and fisherman. He frequently dove for abalone in Mendocino County and enjoyed his cabin at Ruth Lake. John had two daughters, Courtney and Kelsey, with first spouse Janet Surrell. He enjoyed coaching them in triathlons and various sports while they were growing up.

John was a man of many talents but most importantly he was loved and respected by so many. He will never be forgotten and always in our hearts.

He was preceded in death by his father, Chester Burman; mother, Rose Lawson; grandparents, Emma and Fred Burman, Peter and Amelia Serafini; and cousin Dick Giacolini.

He is survived by his daughters, Courtney Burman and Kelsey Tognetti (husband Tony); his five grandchildren, Asher, Ember, Nolan, Brady and Logan; his three sisters, Joanne Melandy (Michael Melandy and family), Sharon Kopin and family, Carol Ondrejko and family; and cousin Judy Kovacovich. John’s extended family includes Sam Hendricks (husband Jim and family) and Brandon.

Please join us for a “Celebration of Life” Friday February 23, 2-5 p.m. at Old Growth Cellars, 1945 Hilfker Lane, Eureka. If you have any questions please email Kelsey at ksburman@hotmail.com

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Press release from the Humboldt County Sheriff’s Office:

On May 1st, 1968, the Humboldt County Sheriff’s Office (HCSO) received a letter in the mail indicating a human skull had been found near Berry Summit. Several detectives and then Sheriff Gene Cox responded to the scene. It was reported two teenagers had been playing in a pile of rocks on 04-28-68 when they found the skull on the east side of Berry Summit. The scene was searched, and additional remains were located. Detectives learned the area where the skull was located had been used by Granite Construction in 1965 for storage of debris from the 1964 flood.

The skeletal remains were sent to the Federal Bureau of Investigation in Washington DC and examined at the Smithsonian Institution.

The remains were later returned to the Humboldt County Sheriff’s Office and buried on June 26th, 1968, at Ocean View Cemetery. Not much was known about the remains other that they were male and between 45-60 years old.

In 2002 the California Department of Justice (Cal DOJ) began requiring DNA samples be obtained from recovered unidentified human remains.

On December 28th, 2010, the unknown subject’s grave was exhumed, and samples were taken for DNA entry. The DNA samples were entered into both the California Missing Person DNA Database and National Unidentified Person DNA Index. The NAMUS case number is UP55806. The DNA profile was routinely searched against profiles from both missing person and other human remains in the Combined Index System (CODIS). No matches were ever made.

In December of 2022 the HCSO and Cal DOJ partnered with Othram Inc, a forensic genealogy laboratory, to determine if advanced forensic DNA testing could help establish an identity for the unidentified man or a close relative. Using funding provided by ROADS TO JUSTICE (RTJ) the CA DOJ sent Othram a DNA extract from the unknown man’s remains. Othram scientists used Forensic-Grade Genome Sequencing to build a comprehensive DNA profile for the man. Once the profile was built, Othram’s in-house genealogy team used forensic genetic genealogy to produce investigative leads.

In August of 2023 the HCSO received the report from Othram indicating the DNA profile may belong to William Melvin Toller born in 1927. The report included several genetic relatives including a possible child named Anona from Louisiana. HCSO investigators were able to contact Anona who confirmed she had a father named William Toller, who the family lost contact with when she was eight years old. A DNA sample was obtained from Anona and compared to the DNA from the unidentified male. The DNA proved a genetic match and confirmed the remains were that of William Toller.

Anona explained her father had lied on his paperwork about his age and joined the Marine Corps when he was 15 years old. He was later injured during combat in the South Pacific. Once completing his enlistment, he attended the University of Idaho and obtained a degree in psychology. Just prior to the Korean War William once again enlisted and was sent to Korea. This time when he returned Anona’s mother told her William was a different man. It is probable that William was suffering from Post Traumatic Stress Disorder. Anona’s parents divorced in the 1950s and they lost contact with him.

The extended time involved in this case shows DNA remains relevant for many years.

HCSO thanks the California Department of Justice DNA Lab, Othram, and Roads to Justice for their outstanding work and assistance in solving this case and providing the Toller family with some closure for their missing loved one. The HCSO is continuing its partnership with CA DOJ and Othram, and continuing to review several other missing or unidentified remains cases for the use of this latest DNA technology.

Anyone with information regarding Mr. Toller, and his last known activities or whereabouts prior to his death, or information that may assist in the investigation of any open missing persons case is asked to contact HCSO Cold Case Investigator Mike Fridley at 707-441-3024<.