In resolving a lawsuit challenging Measure E, El Dorado County Judge Warren Stracener has ruled that Measure E imposed exactions on new development that violate constitutional fair share requirements.

The “no-growth” proponents of Measure E promised voters that the initiative would make an affected development project pay for the full cost of improvements to regional roads and Highway 50 to serve 10 to 20 years of projected cumulative growth, divert impact fees from designated road projects to be spent in the area where the fees were collected, and allow fees to be used for road maintenance. Proponents could not deliver on these promises, however, because the power of the initiative does not authorize voters to enact laws that are unconstitutional or violate state law.

A long list of organizations including the El Dorado County Farm Bureau, El Dorado County Chamber of Commerce, El Dorado Hills Chamber of Commerce, Deputy Sheriffs’ Association, El Dorado Winery Association, El Dorado County Taxpayers Association, El Dorado County Republican Central Committee, and the editorial boards of the Sacramento Bee and Mountain Democrat – all opposed Measure E not only because it was unlawful, as the court has now confirmed, but because its broad brush approach impacted smaller projects, job-generating commercial, business expansion, agricultural uses, hospitals and medical facilities, parks and ballfields, and moderate income housing.

The court’s decision invalidating Measure E’s unconstitutional amendments will restore underlying General Plan policies from voter-approved Measure Y requiring new development to pay Traffic Impact Mitigation (TIM) fees to fully mitigate traffic impacts.

Measure Y is working to maintain levels of service on our roads. The TIM fee program, which has generated over $240 million in road improvements to date, is the most expensive and comprehensive regional road improvement program in the state. It is the only program designed to maintain levels of service on both local roads and state highways, including Highway 50 and interchanges. A 2015 nationwide fee survey shows El Dorado County TIM fees are the highest of all 280 jurisdictions surveyed – more than six times the national average, and 75% above the next highest reported city or county in California.

In a 2014 report to the Board of Supervisors, County staff and counsel acknowledged that Measure E raised constitutional issues that would need to be addressed if the measure was approved by voters. After the election, the County was between a rock and a hard place – it was required to enforce Measure E by either imposing unconstitutional conditions on new projects, or unconstitutionally denying a permit because the condition couldn’t be lawfully imposed. EDCARP decided to file its own lawsuit to ask the court to resolve the important constitutional rights of property owners, small businesses, farmers and ranchers and others in our community.

In addition to invalidating Measure E exactions that exceeded federal and state constitutional and state law requirements, the court’s detailed 49 page opinion upheld a handful of implementation measures that were already being applied under the TIM fee program and several other clauses amended to reinstate 1998 Measure Y language. Measure E revoked a 2008 voter amendment to Measure Y authorizing the Board, by a 4/5 vote, to add a road segment to the list allowed to operate at LOS F - authority the Board has never exercised. Changes regarding multi-family housing were found not to be inconsistent with the Housing Element, because after invalidating other unconstitutional conditions, traffic impacts can be mitigated by payment of TIM fees. A new policy requiring a 2/3 vote to form an Infrastructure Financing District (IFD) was upheld because it simply restated existing state law and applied only to IFDs.

The court’s decision, the Petition for Writ of Mandate and briefs filed by the parties are posted at www.edcarp.orgA list (compiled by EDCARP) reflecting the operative General Plan policies after the court's ruling is available here. (GP TC Policies after Trial Court Decision.)