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Atherton council delays decision on road-impact fees

by Andrea Gemmet

Atherton residents waiting to find out if they will get a refund of road-impact fees will have to wait a little longer. The topic has been rescheduled to a special City Council meeting beginning at 6:30 p.m. Tuesday, Dec. 8.

Town staff is recommending that the fee, charged to builders to compensate the town for construction-related damage to its roads, be rescinded. If approved, anyone who paid the fee on or after Aug. 20 would get a refund.

Atherton would have to give back about $130,000 in fees collected since Aug. 20, according to town staff. From July 2001 to June 30, 2009, the town collected a total of $5.17 million in road-impact fees.

Road-impact fees paid for about half of all of the street reconstruction projects done in Atherton last year, Public Works Director Duncan Jones told The Almanac. If left in place, the fee would bring in an estimated $650,000 by the end of this fiscal year on June 30.

"We've been improving the roads quite a bit since the road-impact fee went into effect," said Mr. Jones. "House construction is still going on, though not quite as fast (as it was), but the roads are still getting destroyed."

The fees have been in place since 2000, and were increased in 2005. Heavy trucks working at residential construction projects do serious damage to the town's roads, Atherton officials have said.

Over the years, some residents have criticized the road-impact fee as an illegal tax masquerading as a fee. A recent court case in Southern California touches indirectly on the issue and says that California vehicle code preempts impact fees for damage to roads — something that may lend weight to critics' arguments.

An analysis by City Attorney Wynne Furth concludes that while the court decision isn't binding on Atherton, it could have implications for future cases. Atherton officials clearly don't want their town to be the test case that decides the issue.

"Litigation of its legality would be an expensive proposition," said Ms. Furth and City Manager Jerry Gruber in the staff report.

The council was set to tackle the issue at its Nov. 18 meeting, but at 11:30 p.m. the council decided to end the meeting and reschedule the item.