Task force amends property-development exactions bill to limit fees, add appeals process

Cheyenne — The Regulatory Reduction Task Force on Wednesday amended draft legislation addressing property development exactions, narrowing the bill’s scope and adding procedural protections for developers and permit applicants.

The draft under review, 25 LSO 0134, as presented by David Hopkinson of the Legislative Service Office, would restrict land-use permitting authorities from requiring impact or mitigation fees for residential development unless the fee is “specifically and uniquely attributable to the cost of mitigating an identified adverse impact.” Hopkinson told members the working group raised that higher standard after reviewing case law and stakeholder input.

The measure would: exempt single‑family residences of 2,500 square feet or less and multifamily units of 1,250 square feet or less from exaction charges; permit a statutory cap on fees calculated as a percentage of total construction, renovation or addition cost (the committee later set that placeholder percentage at 2 percent for the draft under consideration); and create an administrative appeal process and the right to seek judicial review.

Why it matters: jurisdictions across Wyoming use mitigation fees, but the bill’s backers and critics told the task force that inconsistent methods and unclear definitions create legal risk and local contention. The draft tries to reconcile constitutional limits described by courts with local governments’ desire to fund infrastructure and housing mitigation.

Key provisions and procedure

Hopkinson summarized the bill’s core tests and timeline for applicants. Under the draft, a land-use permitting authority must provide written notice of any proposed mitigation or exaction fee at least 30 days before imposing it. After receiving that notice an applicant may request an individualized determination — a written, itemized explanation of the fee, its methodology and supporting data — and the permitting authority would have 60 days to produce the individualized determination; failure to provide it within 60 days waives the fee.

If an applicant objects to the individualized determination they may request a hearing before the permitting authority; the authority would then hold a public hearing and render a final determination within 60 days. If the applicant is not satisfied they may pursue judicial review, with the court to review the fee de novo, placing the burden on the permitting authority to show the fee is specifically and uniquely attributable to an identified adverse impact.

Hopkinson said the measure intentionally raises the evidentiary standard above the traditional proportionality or nexus test used in many jurisdictions: “the draft would now prohibit [an] impact or mitigation fee … unless they are specifically and uniquely attributable to the costs of mitigating an identified adverse impact,” he told the task force.

Amendments adopted

The committee made a series of amendments to the working draft during the meeting: - Narrowed the “government services” exclusion by adding language to make clear government‑provided utility services (for example, water and sewer tap fees) are not meant to be swept into a broad exclusion. That amendment passed by voice. - Required that an applicant who requests an individualized determination pay for that individualized determination “at their expense,” rather than requiring the permitting authority to fund it. The committee adopted that change. - Required hearings on individualized determinations to be public hearings (members inserted the word “public”). - Removed a provision that would have automatically awarded compensatory damages and attorneys’ fees to a prevailing appellant in court; the committee struck that line. - While the original draft applied only to residential development, members debated whether to apply the framework to commercial projects. The committee ultimately amended the draft to cover both residential and commercial permitting in the conforming sections discussed during the meeting. - For the draft language that capped allowable exaction amounts as a percentage of total construction cost, the committee set the placeholder cap to 2 percent during floor amendments (the draft had used an “x percent” placeholder).

Local governments and developers questioned specific language and the bill’s likely effect. Tyler Sinclair, town manager for Jackson, described how Jackson calculates school and housing exactions, noting the use of nexus studies and formula worksheets. He said the town’s housing mitigation is based on job generation and average wages and that the town’s current approach includes a reduction for owner-occupied homes because those households generally create fewer new service jobs. Sinclair also gave local cost examples, saying, “a 2,500 square foot house would be assessed on a $17,000 housing mitigation fee” under Jackson’s current program. He told the task force that Jackson is reviewing its exaction formulas periodically and that some of the town’s school and park formulas are dated.

Legal perspective and appeals

Jim Manley, counsel with the Pacific Legal Foundation, supported the underlying approach: “the framework that this bill sets out is essential to avoiding further litigation about, impact, and, fees and exactions going forward,” he told the task force. Manley said a transparent individualized-determination process and an administrative appeal are likely to reduce the volume and cost of court litigation.

Next steps

Task force members asked LSO to prepare revised drafts with the committee’s conforming edits and to circulate several related drafts: site-plan review timelines, subdivision-review timelines and zoning-review timelines. Members said they want additional outreach and another meeting to review the rewritten bill and conforming language before moving the measure forward.

The committee’s action does not itself change state law; instead the group voted to carry the amended draft forward for further revision and public comment.

Ending: The task force instructed staff to circulate the revised language and to schedule a follow-up meeting; members also signaled interest in additional bills on permitting timelines and local moratorium rules.