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Air pollution development fees legal, says court
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A Fresno appeals court has sided with the San Joaquin Valley Air Pollution Control District, upholding a rule allowing development fees for air-pollution mitigation.
“We were confident from the start that we would prevail in the case and are very pleased with the decision,” said Philip Jay, District legal counsel. “It’s extremely satisfying for the court to uphold the District’s innovative rule.”
The District initially adopted Rule 9510, also known as Indirect Source Review, on Dec. 15, 2005. The rule requires developers to pay fees to the District based upon air-quality impacts from building activity and from use of completed developments. The District uses these fees to fund offsite emission reductions efforts, on behalf of the developer, such as retiring polluting vehicles or paving unpaved roads.
Developers also have the option of incorporating emissions mitigation measures — such as bike paths, energy efficiency initiatives, or building near transit stops — to offset development fees.
The California Building Industry Association challenged the rule in June 2006, claiming that the District had no authority to regulate development and impose fees. Their lawsuit also argued that development fees amounted to a tax, in violation of Proposition 13.
The Fresno County Superior Court disagreed with the BIA’s claims and sided with the Air District in 2008. The BIA appealed that decision, but the Fresno Fifth District Court of Appeals upheld the lower court’s ruling on Monday.
The Valley Air District, which includes all eight Valley counties from San Joaquin County in the north to Kern County in the south, was the first air district in the nation to adopt such regulation. According to Air District representatives, other areas are now looking to Rule 9510 as a model for their own potential regulation.
“We hope the state Building Industry Association will now join the many Valley developers who have taken this rule to heart and designed their projects to reduce air-quality impacts,” said District Executive Director and Air Pollution Control Officer Seyed Sadredin. “We are asking all businesses to do their part to help clean up the air and hope the association will get on board as well.”
To contact Alex Cantatore, e-mail or call 634-9141 ext. 2005.