- The Nebraska State Home Builders Association has stepped in to assist the HBA of Lincoln in its continuing challenge to the City of Lincoln’s impact fee ordinance for water, wastewater, parks, trails and arterial streets. A local court ruled in May that the impact fees under the present ordinance were being used merely to generate revenue and were clearly not traditional regulatory fees. The court also rejected the city’s assertions that it could collect the fees under the authority of an occupation tax statute. However, the court did rule that the city had the authority under its home rule charter to impose “impact fees” as a form of excise tax. On appeal, the HBA is asking the court to determine whether or not the city has authority under that charter to impose an excise tax to collect impact fees, without having received specific authorization from the Nebraska legislature.
- In Kansas, the Lawrence Home Builders Association and its individual members have filed a class action lawsuit against the City of Lawrence, challenging a building permit fee schedule. The applicants assert violations of relevant state statutory law as well as federal constitutional violations. The applicants maintain that the city has illegally increased the fee schedule to the point that the fees collected exceed the costs of regulating the building inspection department. Moreover, to be lawful, the fee must bear a rational relationship to the rightful regulation of the activity for which it is being charged. The applicants state that the city has unlawfully used permit fee revenue to fund its general operations for social programs, in addition to funding activities of other initiatives having no relationship to the regulation of building activity.
- In Louisiana, a builder member of the Acadian Home Builders Association has filed an administrative appeal to an assertion of jurisdiction by the U.S. Army Corps of Engineers over a 73.4-acre tract of land in Lafayette containing isolated wetlands. One boundary of the property borders a drainage coulee and the property is about four miles to the nearest navigable river. The builder proposed to develop the property into residential lots. In July, the Corps issued a finding of “Section 404 other waters” jurisdiction over a portion of the property. The applicant does not believe that the property is a wetland subject to the Corps’ jurisdiction based upon existing case law in Louisiana.
- In York County, PA, a builder seeks to avoid a condemnation of approximately 80 acres of land in West Windsor Township. The developer acquired the property in 2002 and subsequently sought and received approvals for residential development from both the township and the county. Early this year, York County instituted proceedings to condemn the property as part of a larger plan for public parkland. In filing its objections to the condemnation, the property owner argues that the county does not: (1) have the power or right to condemn the property; (2) has not provided sufficient security and immediately available funds to pay just compensation; and (3) committed a procedural error in the condemnation proceedings. The litigation was presented by the Pennsylvania Builders Association and the York County BA.
- The Memphis Home Builders Association in Tennessee requested a friend-of-the-court brief from NAHB to support litigation on the Fair Housing Act’s (FHA) accessibility requirements as they apply to two multifamily communities. The developers were named as defendants in a suit filed by the Memphis Center for Independent Living (MCIL) in 2001, alleging that they failed to design and construct one of the multifamily developments in compliance with the FHA’s requirements. The United States intervened in the suit as an additional plaintiff and amended the complaint to include another multifamily development that was, at the time, under construction. A lower court decided, in part, for the interest group. However, it allowed an immediate appeal of three of the developers’ issues to the Sixth Circuit Court of Appeals: (1) whether the FHA requires accessible pedestrian routes throughout a covered multifamily property when the units and their amenities are accessible to pedestrians from vehicular arrival points; (2) whether the FHA requires accessible parking where no parking is planned; and (3) whether post-construction evidence can support the third prong of the site analysis test for exemption of otherwise covered dwelling units on the basis of site impracticality.
The deadline for Legal Action Fund applications that will be considered during the International Builders’ Show in Orlando, FL, is Dec. 1. To download applications and guidelines, NAHB members can click here. For more information on the grants described above, e-mail Mary Lynn Pickel, NAHB’s director of legal services, at 800-368-5242 x8485. For information on filing an application to the fund, e-mail Jon Luther, NAHB staff counsel, or call him at x8329. | 
