HomeMy WebLinkAboutMINUTES - 07091996 - C104 i
C. 1001 C. 101 , C . 1021
C. 103 & C . 104
THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on July 9, 1996, by the following vote:
AYES: Supervisors Rogers, Bishop, DeSaulnier, Torlakson and Smith
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: Correspondence
C.100 LETTER dated June 17, 1996, from Rory Robinson, Executive Director of Redevelopment
Agency of the City of San Pablo, City of San Pablo, One Alvarado Square, San Pablo, CA
94806, requesting the preparation of a second Base Year Report for the Legacy
Redevelopment Project based on the 1996-97 equalized assessment roll.
**** REFERRED TO AUDITOR-CONTROLLER
C.101 LETTER dated June 25, 1996, from Ilia Collin, Sacramento County Supervisor, Second
District, James Knox, Urban Affairs Director, Planning and Conservation League, Dan
McNamara, President, Train Riders Association of California, Board of Supervisors, County
of Sacramento, 700 H Street, Ste 2450, Sacramento, CA 94814, expressing concern with
recent amendments to proposed legislation AB 1720 and potential consequences to obtain
funds for transportation systems, and urging the Board to oppose AB 1720.
****REFERRED TO TRANSPORTATION COMMITTEE AND COUNTY
ADMINISTRATOR
C.102 LETTER received June 19,1996, from Jerome Knott, Executive Director, Love-A=Child
Ministries, 2279 Willow Pass Road, Bay Point, CA 94565, requesting the Board of
Supervisors waive or defer all development and planning fees pertinent to the construction
of a Chapel at 2301 Willow Pass Road, Bay Point area.
****REFERRED TO COMMUNITY DEVELOPMENT DIRECTOR
C.103 LETTER dated June 10, 1996, from W. Dennis Barry, 4130 Canyon Road, Lafayette, CA
94549, requesting a refund of property taxes paid for tax years 1993-94 and 1994-95.
****REFERRED TO ASSESSOR AND COUNTY COUNSEL
C.104 LETTER dated June 25, 1996, from David P. Lanferman, Esq., Lanferman, Fisher, &
Hashimoto, for Kaufman and Broad of Northern California, Inc., 100 Mowry Avenue, Ste
300, Fremont, CA 94538-1509, presenting a Statement of Protest relative to the imposition
of fees imposed as a condition of obtaining building permits for lots within Subdivision
7144, California Reserve, Reliez Valley, Lafayette; and as a claim for refund of all fees paid
for permits obtained currently and in the future for this subdivision.
****REFERRED TO COMMUNITY DEVELOPMENT AND COUNTY COUNSEL
IT IS BY THE BOARD ORDERED that the recommendations as noted I****1 are
approved.
C.C. Correspondents
County Administrator I hereby certify that this Is a true and correct copy of
Auditor-Controller an action taken and entered on the cmiinmutes of the
Transportation Committee ATTESTED:Board ofSupervs ! "l!o
Director, Community Development PHIL BA HELD Clerk of the Board
Supervi rs and unty Administrator
Assessor
County Counsel 6y ,Deputy
LANFERMAN, FISHER & HASHIMOTO
ATTORNEYS AT LAW
June 25, 1996
RECEIVE
JUN 2 6 1996
Honorable President and Members
Supervisors CLERK BOARD OF SUPERVISORS
Of the Board Of SU
h CONTRA COSTA.CO.
COUNTRY OF CONTRA COSTA
651 Pine Street
Martinez, CA 94553
Re: Statement of Protest of Alleged 'Reliez Valley Road Fee"
and Request for Documentation
Property/Project: "California Reserve"
Reliez Valley Road, near Lafayette, California
Tract No. 7144
Dear President and Members of the Board of Supervisors:
Our firm represents Kaufman and Broad of Northern California,Inc. in connection
with its protest and objection to the imposition and levy of a purported "Reliez Valley
Road Fee" by the County. We are informed that our client has been or will be required
to pay such "fees" for the benefit of your County at the rate of$6,888.00 per new home,
as a condition to the issuance of building permits for our client's proposed residential
project as described above.
This letter is provided as a Statement of Protest to the imposition of purported
alleged "Reliez Valley Road Fee" by your County against the above-referenced
subdivision, pursuant to Government Code §§66020 et seq.
The required payments of fees, imposed as a condition of obtaining building
permits on all lots within the referenced subdivision, are tendered under protest and a
claim is hereby filed for a refund of all fees paid for the permits obtained and to be
obtained in the future for this project. This shall be deemed a continuing Statement of
Protest for all fees paid on this subdivision and for all phases of construction on this
project. This Statement of Protest shall be deemed to apply to all previous and
outstanding payments of fees as well.
3100 MOWRY AVENUE,SUITE 300•FREMONT,CALIFORNIA 94538-1509
TELEPHONE:(510)494-5500•FAX:(510)494-5510•E-MAIL:LFH 1 @aol.com
Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 2
FACTUAL BACKGROUND
The subject property consists of a small residential subdivision, containing 22
single-family lots, located on Reliez Valley Road near Lafayette in the unincorporated
area of Contra Costa County, known as Tract 7144. The Tentative Map and the Final
Development Plan for this subdivision were approved by the Contra Costa County Board
of Supervisors back on October 10, 1989. The Final Map was recorded on October 23,
1995, and our client recently applied for three building permits. Kaufman and Broad then
discovered that County Staff was requiring payment of$6,888.00 per home as a purported
"Reliez Valley Road Fee," as a condition of obtaining such building permits. Having had
no prior knowledge of such a purported "Road Fee," Kaufman and Broad tendered
payment of those fees under protest and conducted further investigation.
Our client was subsequently informed that this was a type of "traffic mitigation
fee" for road improvements along Reliez Valley Road and Alhambra Valley Road, and
that these purported mitigation fees were derived from a study conducted for the County
in December, 1989 [after the Tract Map was approved for this project], titled, "Develop-
ment Program Report for Traffic Mitigation Fees and Interagency Coordination." Upon
further inquiry, however, we are informed that the results of this December, 1989 traffic
study were never adopted and approved by the County of Contra Costa, and that the
County has never adopted a resolution or ordinance imposing a traffic mitigation fee in
this area [California Government Code §66016 specifies that a local agency, such as a
County, shall not levy a development fee or service charge in the absence of a formal
ordinance or resolution taken at a public hearing.]
Upon further inquiry, it was suggested that perhaps the County's basis for trying
to demand the "Road Fee" was derived from one of the Conditions of Approval for the
Tentative Map. Although Condition F of the October 10, 1989 Conditions of Approval
for the Tentative Map provides that the developer will "pay all infrastructure fees in effect
at the time of issuance of building permits," such an open-ended map condition is not
sufficient to satisfy requirements of due process so as to allow a local agency to levy a
entirely new fee which was not even imposed at the time of Tentative Map approval.
[See, e.g., Kaufman and Broad Central Valley, Inc. v. City of Modesto (1994) 25
Cal.AppAth 1577. (Held: City could not rely upon a similar map condition to support
imposition of greatly increased capital facilities fees to include funding for entirely new
infrastructure elements not included in fee at the time of tentative map application.)]
Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 3
Kaufman and Broad 's land planning staff has attempted to resolve these concerns
by discussions with County Public Works Department staff, attempting to seek a refund
of a "Reliez Valley Road Fees" previously paid under protest, as well as a release of any
obligation to pay such fees for future phases of this project. Unfortunately, those efforts
have been unsuccessful. Accordingly, on behalf of our client, we respectfully submit this
Statement of Protest with regard to the establishment, imposition and collection of the
subject "fees" as follows:
1. Absence of Ordinance or Resolution Authorizine Imposition of 'Reliez
Valley Road Fees"-
So far as we are presently aware, there are no ordinances or resolutions adopted
by the Board of Supervisors of Contra Costa County authorizing the levying of a Reliez
Valley Road Fee in the amount of $6,888.00 per home, or in any other amount.
California Government Code §66016 requires that a purported development impact fee
or service charge may only be imposed by means of a formally adopted ordinance or
resolution by the legislative body of the county, following at least one open public
hearing. Section 66016(b) specifies that the authority to adopt a new fee or service
charge, or to increase a fee shall not be delegated by the legislative body to any
subordinate commission, officers or employees.
2. Vested Riehts Against New Or Increased Fees:
Since this development project had obtained Tentative Map approval as well as
Final Development Plan Approval by the Board of Supervisors of Contra Costa County
back on October 10, 1989, and had obtained all necessary discretionary review and
approval prior to the purported imposition of any conditions for payment of"Road Fees,"
our client had obtained Vested Rights to proceed with development in accord only with
those statutes, ordinances and policies in effect at the time of such project approval.
California Government Code §66474.2 limits the power of a County or City to impose
development conditions to only those "ordinances, policies and standards" in effect on the
date the map application was deemed complete.
Moreover, this protection effectively extends to the [County's] consider-
ation of the Final Map, which must be approved if it is in substantial
compliance with the previously approved Tentative Map (§66474.1;
Youngblood v. Board of Supervisors(1978) 22 Cal.3d 644). Section 65961
precludes a local agency, subject to certain limitations, from imposing any
Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 4
condition on a building permit which it could have lawfully imposed on
a previously-approved Tentative Map. Kaufman and Broad Central Valley,
Inc. v. City of Modesto (1994) 25 Cal.AppAth 1577, 1586 [review denied].
In Kaufman and Broad Central Valley, Inc. v. City of Modesto, the appellate court
affirmed that the City had improperly imposed new or subsequently increased develop-
ment fees against K and B's previously-approved subdivision, and ordered the City to
refund all excessive fees collected, plus interest on the excess. In the same case, the
Court of Appeal considered a "map condition" containing language similar to that in
"Condition F" in this kind of map, and expressly held that such a condition is not a basis
upon which to superimpose a new or greatly expanded fee enacted subsequent to
Tentative Map application. The Court held that in order to satisfy general constitutional
principles of due process, any attempt by a public agency to provide for possible future
"escalation" of its fees must be supported by ordinances, policies and standards in effect
when the developer's Tentative Map application is deemed complete, and the County's
ordinances "must include not only a general fee escalation provision, but must also
provide reasonable notice of the nature of the fee and the manner of its calculation."
Kaufman and Broad, supra, 25 Cal.AppAth at 1587.
3. Failure to Give Notice of Intent to Impose 'Road Fees":
Even assuming that the County had properly adopted a road fee ordinance, and
further assuming that Kaufman and Broad's development project did not enjoy vested
rights against the subsequent adoption of such a road fee ordinance, it would nevertheless
be clear that the County could not legally collect that "road fee" from this project, in the
absence of adequate public and written notice of the applicability of such a "road fee" to
this property. To the extent that some County employees have apparently suggested that
there is some unwritten County policy or practice of collecting such a road fee from
properties in the Reliez Valley area, neither Kaufman and Broad nor its engineers have
been provided with any codification or written format of such a policy which would
convey such notice of the potential applicability of the fee to this property. In the
absence of such notice, the County may not now apply any such "road fee" policy to this
property. See, e.g. Bright Development Company v. City of Tracy (1993) 20 Cal.AppAth
783 (rejecting City's attempt to apply purported "unwritten policy" requiring
undergrounding of offsite utilities.)
Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 5
4. Failure to Comply With Government Code 466001(x):
So far as we are presently aware, the County has failed to comply with the
procedures established by Government Code §§66001(a), in that it does not appear that
the County has adequately identified the purpose of the "fees;" has not adequately
identified the use to which the "fees" are to be put; has failed to demonstrate a reasonable
relationship between the use of the fees and this type of development project; and has
failed to adequately demonstrate a reasonable relationship between the purported need for
additional facilities and this type of development project.
5. Failure to Comply With Government Code 4466001(b):
So far as we are presently aware,the County has not adequately demonstrated any
reasonable relationship between the amount of the fees to be imposed on this project, and
the costs of the additional facilities purportedly attributable to this development project.
6. Inadequate Capital Improvement Plan:
The County has not demonstrated that it has established and approved a Capital
Improvement Plan in accordance with Government Code §66002. or similar equivalent
facilities plan, identifying the projected new facilities and cost estimates for improvements
purportedly to be financed with the subject "fees."
7. Fees Exceed Reasonable Costs:
The information presently available to us fails to demonstrate that the purported
"fees" are limited to an amount not exceeding the "reasonable costs" of providing the
alleged additional facilities fees reasonably related to the impacts of this development,
in violation of Government Code §66005.
Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 6
8. Failure to Comply with Government Code §466016 - 66018:
So far as we are presently aware, it is not clear that the County properly complied
with the procedures set forth by Government Code §66016 - 66018 with regard to the
public hearings required in connection with the adoption, increase, and imposition of
"fees," or to make the Findings required by §66001.
9. Unlawful Special Tax:
To the extend that these purported "fees" exceed the reasonable costs of providing
road facilities actually attributable to development, they constitute "special taxes" within
the meaning of Article XIII(a) of the California Constitution, which require approval of
two thirds of the electorate, Government Code §§50076-50077.
10. Denial of Equal Protection of the Laws and Substantive Due Process:
To the extent that these fees may be used to remedy outstanding deficiencies or
needs not attributable to this project, it would appear that the County is requiring one
class of property owners to pay more for public roads than other residents. In the absence
of any rational basis for shifting such a burden on this selective basis, imposition of these
fees appears to be arbitrary action, depriving our client of constitutional rights to due
process of law and rights under the Fifth Amendment against uncompensated takings of ,
property. .
We respectfully reserve the right to specify further grounds for protest upon review
of the.County's documentation and in light of developments in the law in this area.
REQUEST FOR DOCUMENTATION
This letter also serves as our request for copies of any and all documentation
(including all County fee resolutions), relied upon by the County to purportedly justify
the imposition of the disputed fees, as provided by Government Code §66024.
In addition,we also respectfully request information identifying any other lawsuits,
actions, or protests of the County's "Rel,iez Valley Road Fees."
• Honorable President and Members
of the Board of Supervisors
County of Contra Costa
June 24, 1996
Page 7
Finally, we respectfully request that you promptly review this Statement of Protest
and provide us with your response, and that you notify us in the event that there is any
available process for appeal or administrative review through the County. We reiterate
our client's request for the immediate return of all disputed fees, together with interest as
provided by statute.
We thank you for your courtesy and attention.
Very ly yours,
LANFERMAN FI HER & H O
D VI P. LANFERMA
DPL\j f
cc: John B. Bertero, III
Vice President, Northern California Legal Affairs
Kaufman and Broad
Darrell Bolognesi
Manager, Land Acquisitions & Planning
Kaufman and Broad
Matt Koart
Vice President, Acquisitions & Planning
Kaufman and Broad
Heather Ballenger
Senior Civil Engineer
Mitch Avalon
Supervising Civil Engineer
Joe DiMaggio
Engineer
Contra Costa County Department of Public Works
f.\client\k&b\lafayett\protest2.Itr
960625/1632