Building Industry Sues to Stop Illegal Water Tax

VENTURA, Calif. (August 16, 2016)—The Building Industry Legal Defense Foundation (BILD) and Building Industry Association of Southern California, Inc. (BIASC), filed a lawsuit against the City of Ventura and its City Council, to stop an illegal “Net Zero Water Fee.” The fee would be imposed primarily on development and would require all new development to offset all of its water use either to provide onsite water, offset double its water use from offsite sources, or pay a massive fee that includes a 20 percent “buffer” component over and above the new development’s projected water use needs. 

The fee claims to be based on a $249-million-dollar capital improvement program that the City would implement. The program does not include use of the City's State Water Project allocation that the City already pays for and which would provide more water than the new capital program would provide. The costs of the new water program are supposed to be borne by both the building industry and by the existing rate payers in Ventura, but appear to be skewed toward assessing new development far more than its fair share. The building industry sued to stop the City from implementing the fee. 

The City designed the fee program so that it impacts all new development or redevelopment of any kind (housing, apartments, commercial, retail, hospitals, etc.). Sample fees would be $370,398 for a small, 50-unit apartment building and $793,710 for an average size retail strip center. The building industry alleges that the fees were based on a pie-in the sky plans for future water infrastructure that rejected cost-effective water supplies in exchange for seawater desalination facilities that may never be built. 

Lisabeth Rothman who is with Briscoe, Ivester & Bazel and is the attorney acting for the BILD Foundation and BIASC, stated “The City is charging far more than the actual cost of the water.  That is illegal, plain and simple.”

Out of concern for the City’s program being likely to shut down construction in the area, the industry groups sued. In addition to the magnitude of the fee, the building industry called out the City for imposing a program when its own water supply studies showed no “net zero” programs were necessary and the capital program selected by the City, with its $249-million-dollar price tag, was far beyond the needs of the City and was being unfairly foisted on the backs of the construction industry and the existing water customers in Ventura. 

The lawsuit charges the city with violating numerous provisions of state law, including the Mitigation Fee Act, the California Environmental Quality Act; and for violating both the California and Federal Constitutions. 

“Builders and ratepayers should not be required to pay for something that is unnecessary, unfair and illegal,” said Tim Piasky, executive officer for the Los Angeles/Ventura Chapter of BIASC. “BIASC and BILD continually attempted to work with the City on solutions that were fair and legal, but to no avail and were forced to initiate legal action.”

The case of BILD Foundation and BIASC v. the City of San Buenaventura was filed in Ventura County Superior Court. 

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The BILD Foundation is a non-profit legal advocacy group for the building industry, funded by the Construction Industry Advancement Fund of Southern California and Fund for Construction Industry Advancement, and by BIASC. BIASC is a non-profit trade association with more than 1,000 member companies throughout Southern California that seeks to improve the business climate for all types of land development and construction of all types of products, including housing as well as commercial, retail, infrastructure and institutional projects.