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School Districts Go to Court Over Level 3 Fees

  • June 15, 2016

June 15, 2016

San Francisco, CA—On June 10, 2016, Dublin Unified School District and Fremont Unified School District appeared in Superior Court in Sacramento through counsel Dannis Woliver Kelley and requested the right to intervene in the litigation brought by the California Building Industry Association (CBIA) to halt the implementation of higher developer school impact fees, commonly known as “Level 3” developer fees. The court did not grant the districts the right to intervene by ex parte application, but will hear a noticed motion to intervene on or after the hearing on the preliminary injunction. CBIA had three attorneys at the hearing and argued vigorously against intervention. The court will allow the districts to participate by filing an amicus brief, literally as a “friend of the court,” on June 16, and to participate in oral argument as amicus at the hearing on the preliminary injunction, rescheduled from July 1 to July 8. The court insisted that intervention by school districts could change the arguments and analysis relevant to the preliminary injunction, although the legal issues would remain unchanged.

This action follows the State Allocation Board’s (SAB) May 25 approval of developer school impact fees at a rate calculated to pay the cost of facilities for students to come from new development within the next five years, twice the prior rate which only pays half that cost, with the other half to come from state school bonds. On the same date, the CBIA filed papers to prevent the implementation of those fees, and the following day the court granted the temporary restraining order requested by the CBIA which purports to prevent the collection of those fees.

On May 25, the SAB made the finding that the state is no longer providing grants for new construction of schools because all prior bond funds for that purpose have been spent. The last state school bond measure was approved by the voters in 2006, and most bond funds are allocated for school facilities within two years. The SAB has a long list of unfunded approved school facility projects. The Dublin and Fremont school districts had each attended several meetings of the SAB and urged that body, which approves grants of state school bond funds to school districts, to make the findings necessary to allow impacted school districts meeting the statutory criteria to charge the higher developer fees. Both school districts are heavily impacted by significant new development.

At the May 26 court hearing, the court set a July 1 hearing date to consider whether to impose a preliminary injunction to stop school districts from charging Level 3 fees. The Districts are requesting the right to be heard at that time and make the court aware of the plight of many impacted school districts. While a state school bond measure is on the November ballot, and would lead to a subsequent reduction in fees back to the “Level 2” amount of half the cost to build the needed schools, many districts need to build schools even sooner and are unable to do so without this funding.

For further information, please contact Dr. Stephen Hanke, Superintendent, Dublin Unified School District and/or Dr. James Morris, Superintendent, Fremont Unified School District. You can also contact DWK attorney Clarissa Canady at 415.543.4111.


Dannis Woliver Kelley is a full service education law firm focused entirely on serving and providing legal representation for California public school districts, county offices of education, community colleges and other educational organizations.¬†Established in 1976, DWK is one of the largest women-owned law firms in the country. The firm’s areas of practice include: Board Ethics, Transparency and Accountability; Business and Property; Charter Schools; Construction; Labor, Employment and Personnel; Litigation; Public Finance; and Students and Special Education. DWK provides preventive, practical and cost effective legal counsel on key issues surrounding your core mission- the education of students.

  • Clarissa R. Canady