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HomeMy WebLinkAboutMINUTES - 10181994 - H.5 H. 5 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA DATE: October 18, 1994 MATTER OF RECORD On October 11, 1994 , the Board of Supervisors continued to this date the further consideration of the report from the Director, Growth Management and Economic Development Agency, on franchise agreements, tipping fees (their amounts and levels) , and other landfill related actions . The Clerk of the Board having ascertained there was not a quorum of the Board of Supervisors present continued the hearing on the above matter to October 25, 1994 at 2 P.M. in the Board chambers . THIS IS A MATTER FOR RECORD PURPOSES ONLY NO BOARD ACTION TAKEN COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ.CALIFORNIA Date: October 17, 1994 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy Countyounsel Re: Hearing on Amendment No. 1 to Keller Landfill LUP The matter of certain proposed amendments to the Keller Landfill LUP, considered by the Planning Commission on September 13, 1994 and September 20, 1994, was continued to and further heard by the Board on October 11, 1994. I. SAY OF BOARD'S 10-11-94 ACTIONS REGARDING LUP. At the October 11 hearing, a majority of the Board initially indicated its desire to amend LUP Conditions Nos. 35.1 and 35.2, to change the Transportation System Impact Fee (Condition No. 35.1) and Open Space and Agricultural Preserve Fee (Condition No. 35.2) from mandatory $2.00 per ton fees, to be levied by and at the discretion of the Board by separate action, up to a maximum of$2.00 per ton for each fee. However, upon further discussion, the Board members indicated a desire to amend Conditions Nos. 35.1 and 35.2 to provide as follows: 1) the amount of the fees to be levied, up to $2.00 per ton for each condition, shall be at the Board's discretion, but the total fee shall be at least $3.00 per ton, but not to exceed the existing total $4.00 per ton limit; 2) the $3.00 to $4.00 per ton fees levied may be used for host community mitigation purposes in addition to transportation and/or open spacelagricultural preserve purposes. The County Counsel was directed to prepare language for the Board's consideration, and to discuss the legal implications of amending the LUP as indicated at this time. Board of Supervisors October 17, 1994 Page 2 II. POSSIBLE LANGUAGE FOR AMENDED CONDITION. Assuming our understanding of the Board majority's intent is correct, we suggest that the Board "stay" the operation of Conditions Nos. 35.1 and 35.2, and "replace" said conditions with a new Condition No. 35.8: "35.8. The Landfill operator shall pay to the County of Contra Costa a fee, the amount of which may be set by the Board of Supervisors by Board Order from time to time, which amount shall not be less than $3.00 per ton and shall not be more than $4.00 per ton, on solid waste received at the Landfill. The fee shall be used as directed by the Board in its-sole discretion: 1) to mitigate the general impacts of Landfill-generated traffic on the County's road system, 2) to mitigate the general impacts of the Landfill on open space, existing and proposed recreational facilities, and agriculture, or 3) to mitigate any general impacts of the Landfill upon the surrounding community." III. DISCUSSION. At the time of the Board's consideration of LUP No. 2020-89 for the Keller Canyon Landfill, due in part to concerns that a sufficient "nexus" could not be established to support a host community mitigation fee as a permit condition of approval, a per-ton host community mitigation fee was not included in the LUP. A host community fee was instead included in the franchise agreement with the landfill operator. None of the conditions set forth in LUP No. 2020-89 were judicially challenged in a timely manner. For this reason, Government Code section 65907 (statute of limitations for challenging decisions on conditional use permit matters) now precludes a challenge of such conditions as contained in LUP No. 2020-89. To the extent that the Board now elects to condition the LUP upon the payment of a fee which may be used for "host community" mitigation purposes, such condition may now become subject to a timely taken judicial challenge. In addition, we note the addition of a condition imposing a fee which may be used for host community mitigation purposes was not considered by the Planning Commission. Of course, if this condition is adopted and is not challenged in a timely manner, it too will have the benefit of section 65907. It is possible that a challenge to the proposed condition as set forth above could succeed while the Board's repeal of Conditions 35.1 and 35.2 might be given full Board of Supervisors October 17, 1994 Page 3 force and effect, thus eliminating all such fees. To avoid this possibility, the Board may wish to condition the "staying" of 35.1 and 35.2 upon the above proposed new condition becoming and remaining effective. In other words, the following could also be adopted: "Conditions Nos. 35.1 and 35.2 of LUP No. 2020-89 are hereby stayed in their operation as long as Condition No. 35.8 remains in full force and operation. Should Condition No. 35.8 ( or any portion of it) for any reason be set aside or stayed in its operation, then Conditions Nos. 35.1 and 35.2 shall be in full force and operation except that the Board of Supervisors at its sole discretion shall determine the extent and amount of each fee to be levied." LTF 9a:\1up1018.94