Judge sides with city of Fresno, says city can impose water fees for new development

This is an area called the filter gallery at the city of Fresno's water treatment plant on Chestnut near Behymer in northeast Fresno.
This is an area called the filter gallery at the city of Fresno's water treatment plant on Chestnut near Behymer in northeast Fresno. The FRESNO BEE

A Fresno Superior Court judge ruled in favor of the city of Fresno and upheld new water fees that ensure new homes will have enough water after some of Fresno's largest developers filed a petition against the fees.

Judge James M. Petrucelli issued his ruling May 30, saying attorneys for Granville Homes, Wathen Castanos Peterson Homes and Lennar Homes failed to show the fees exceeded reasonable costs, that they would be used for another purpose or that the fees are unlawful.

The city's policy is to not comment on pending litigation. Lawyers for the developers did not return requests for comment.

The Fresno City Council approved in April 2017 the "water capacity fees," as they're known, to pay for improvements to the city's water infrastructure and treatment facilities and accommodate increased water demands from new development. The state required the city to devise a plan to use less groundwater to meet the requirements of Gov. Jerry Brown's State Groundwater Management Act.

The builders filed their petition in May last year, along with the Building Industry Association of Fresno/Madera Counties, which withdrew soon after. The petition contended the fees would unjustly burden builders with extra charges that could not be legally justified. The developers also said in the petition the city had more than enough water treatment capacity to meet water demands until 2035.

The developers and their attorneys hoped Petrucelli would declare the fees invalid and decide that they violate state law and order the city to rescind its approval of the fees. They also wanted a court order barring the city from assessing and collecting the fees "unless and until the city complies with all controlling laws ."

But Petrucelli ruled in favor of the city, saying the city properly identified the capacity charge through a consultant study. Petrucelli also said the developers "grossly overstated" estimates on the city's future water demand.

The developers also failed to show the city violated the California Environmental Quality Act (CEQA) by saying the fees were not for a "project" and doing no environmental review, Petrucelli said. None of the city's plans amounted to a project under CEQA guidelines, he said.

"Also, the city has stated that any project that may be proposed will be subject to future review for environmental impacts under CEQA," he said in the ruling.

The $4,246-per-home fee adopted last April was lower than a previous proposal. Fees would also be charged for commercial and industrial properties with larger water meter connections. The fees would only be charged for new development, not existing homes and businesses, because they are intended only to accommodate the water demands created by future growth. That includes $143.9 million in new water wells, groundwater recharge basins and distribution pipelines.

The city began charging the new fees last June. Builders typically pay the fees when building permits are issued.

Brianna Calix: 559-441-6166, @BriannaCalix