The opinion
LUCAS, C. J.
I respectfully dissent.
Although I believe that the Transit Impact Development Fee Ordinance (TIDF) may well be constitutionally valid (an issue not presently before us), I cannot agree plaintiffs were provided adequate notice of the imposition of such a fee in their building permits.
The majority relies heavily on the planning commission’s records which apparently indicate that “at the time it was enacted the transit mitigation condition language was intended to encompass whatever financing mechanism would be developed as a result of the City’s ongoing study of the transit funding problem.” (Majority opn. at p. 851.) The commission’s intent, however, is irrelevant to the issue of the adequacy of plaintiffs’ notice. By stating that plaintiffs “shall participate in a downtown assessment district, or similar fair and appropriate mechanism,” the permit language alerted plaintiffs only to the possibility that some fee similar to the assessment generated by a downtown-wide assessment district, applicable to preexisting and new development, could be levied on their projects. I disagree with the majority that the TIDF, which applies only to new buildings and essentially demands from plaintiffs the lion’s share of the costs for the increased transit fee over the next 45 years, was contemplated by the ambiguous language of the permits.
Similarly, the majority’s reliance on the additional notice implied by public reaction to plaintiffs’ draft environmental impact reports is misplaced. In their final reports, plaintiffs simply responded to public concern by recognizing the need for additional public transit services to meet increased public demand generated by “cumulative office development” in the downtown area. Here, plaintiffs agreed to “contribute to funds for maintaining and augmenting transit service, in an amount proportionate to the *856 demand created by this project, through a funding mechanism, such as a special assessment district, if such a mechanism is developed by the City.” As the Court of Appeal stated: “The environmental impact reportfs] gave plaintiffs no more information than the language in the building permits, which . . . was too general to support this type of exaction.”
Accordingly, I agree with the Court of Appeal’s conclusion that, “Since the entire downtown area is affected by the peak demand in ridership, it would be unreasonable to expect plaintiffs to anticipate that only a few [new] office buildings would be covered by the funding mechanism. [I] do not think the words ‘similar, fair and appropriate mechanism’ reasonably could be construed to include the exclusive funding mechanism of the type in effect here. When a vested right is implicated, due process requires that notice be meaningful or ‘of such nature as reasonable to convey the required information. . . .’” (Quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314 [ 94 L.Ed. 865 , 873, 70 S.Ct. 652 ].) Neither the planning commission’s uncommunicated intent nor the environmental impact report gave plaintiffs reasonable notice as a matter of law that they would be required to pay the large fee imposed by the TIDF. I therefore agree with the Court of Appeal that the retroactive application of the ordinance to plaintiffs’ project is unconstitutional.
I would affirm the judgment of the Court of Appeal in its entirety.