Housing Policy

When Is a Park Fee Unconstitutional?

Plus: San Francisco slashes affordable housing mandates, wide support for streamlining environmental review, and Mamdani's rent ripoff report.

Christian Britschgi | 7.21.2026 1:00 PM

Share on FacebookShare on XShare on RedditShare by emailPrint friendly versionCopy page URL Add Reason to Google

Media Contact & Reprint Requests

(Midjourney)

Happy Tuesday, and welcome to another edition of Rent Free. This week's newsletter includes stories on: 

But first, our lead story on a new constitutional challenge to the exorbitant park fees one California city is charging to approve a simple lot split the state law requires it to approve.

The case is an interesting example of traditionally conservative or libertarian Takings Clause arguments being levied in defense of more liberal-coded zoning reforms.

Developer Challenges City's $127,000 Park Fee on S.B. 9 Project

California developer Mircea Voskerician is suing the city of Menlo Park over a $127,000 "recreation in-lieu" fee it's charging him just to subdivide a lot owned by his company. 

Per the complaint, Voskerician purchased an 18,500-square-foot lot in 2024 and shortly thereafter filed an application with the city to subdivide the property into two. 

Rent Free Newsletter by Christian Britschgi. Get more of Christian's urban regulation, development, and zoning coverage.

X/Twitter

This field is for validation purposes and should be left unchanged.

Email(Required)

SUBSCRIBE

Under California's Senate Bill 9 (S.B.) 9 law, cities like Menlo Park are required to approve lot split applications "ministerially"—meaning without any public hearings or discretionary review from planning or elected officials.

Menlo Park complied with this requirement and approved Voskerician's application. It also charged the developer the six-figure parks fee for his trouble. 

California gives localities lots of flexibility to charge impact fees on new housing, something localities have exploited to practically limit the number of S.B. 9 projects. (More on that later.)

While Menlo Park's fee might be kosher under state law, Voskerician's lawsuit contends it violates the U.S. Constitution. 

The constitutional problem with high permit fees

In its Nollan and Dolan decisions, the Supreme Court has ruled that the Takings Clause of the Fifth Amendment limits local governments to demanding that permit applicants surrender only the money or property necessary to mitigate the public impacts their proposed project would cause.

The court's 2024 decision in the Sheetz case confirmed that the Nollan-Dolan standards apply to permitting conditions imposed by local legislatures and not just local bureaucrats using their own administrative discretion.

In this new lawsuit, Voskerician, who is being represented by the Pacific Legal Foundation (PLF), argues that his lot split is not creating some great new strain on recreational facilities in Menlo Park. Therefore, the city cannot charge him such a high park fee. 

"The Supreme Court has made it abundantly clear that cities cannot force property owners to foot the bill for problems they didn't create. Menlo Park cannot ignore that precedent to demand a six-figure exaction for a routine subdivision," said David Deerson, an attorney with the Pacific Legal Foundation.

Since Sheetz, property owners have filed a flurry of lawsuits arguing that the holding in that case makes various types of impact fees or affordable housing mandates unconstitutional.

In addition to Voskerician's case, PLF has litigated three cases........

© Reason.com