Loading...
HomeMy WebLinkAboutMINUTES - 10081996 - D.7 •-" 'i Contra 's Costa TO: BOARD OF SUPERVISORS p; ++�.i1tln�M ' 't ' County o FROM: HARVEY E. BRAGDON '•, �� DIRECTOR OF COMMUNITY DEVELOPMENT ��Sr----- -- DATE: cou-DATE: October 3, 1996 SUBJECT: October 8, 1996 Hearing on Statement of Protest from Lanferman, Fisher & Hashimoto for Kaufman & Broad of Northern California on Imposition of fees as a condition of obtaining building permits for lots in Subdivision 7144 SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Authorize the Building Inspection Department to refund to the applicant fees intended for off-site road improvements which exceed the amount required by ordinance. FISCAL IMPACT None. BACKGROUND/REASONS FOR RECOMMENDATIONS The legal counsel for the development firm of Kaufman and Broad has filed a protest of road improvement fees which had been required by the County with the issuance of building permits for lots within Subdivision 7144 in the Reliez Valley Road area. Staff has reviewed the background of this project and concluded that due to the type of application filed that the applicant is entitled to a refund of the component of the road fees that was collected and allocated to the Reliez Valley Road Improvement account . The subdivision application for this project was filed on June !6, 1988 and accepted as complete by the County on July 12 , 1988 . Because the application was filed as a vesting tentative map, by State law, the project was vested as of the date that the application was accepted as complete. In this regard, for a limited period of time, the County could only compel compliance with policies, laws, and rules that were in effect on that date. CONTINUED ON ATTACHMENT: X YES SIGNATURE k RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD CO ITTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON October 8 , 1996 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A _x UNANIMOUS (ABSENT --- TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Bob Drake (335-1214) Orig: Community Development Department ATTESTED October 8 , 1996 CC: Public Works Department PHIL BATCHELOR, CLERK OF Building Inspection Department THE BOARD OF SUPERVISORS Lanferman, Fisher & Hashimoto AND C TY ADMINISTRATOR County Counsel B DEPUTY c:\wpdoc\sub7144 .bo RD\ t The vested rights of a project also applies to fees that were in effect as of that date. The vested rights extend to two years after the date of the recording of the final map; on request, the vested rights may be extended one additional year. In the case of this project, the applicant is subject to only those fees which had been adopted in 1988 . The project was approved by the Board of Supervisors on October 10, 1995 for 22 lots. The final map for this subdivision was recorded on October 25, 1995. Therefore, the vested rights will extend until at least October 25, 1997, and possibly October 27, 1998 if requested. After that, the County could collect whatever applicable development fees apply to that site at that time. Beginning in 1989 , staff has been formulating a fee ordinance proposal that if adopted would require an additional fee contribution from new development in the Reliez Valley and Alhambra Valley areas. The fee would be intended to finance road improvements to Reliez Valley and Alhambra Valley Roads. This fee payment has been made a condition of a number of projects in Reliez Valley. At the time of the issuance of the building permits for this project, staff believed that collection of a similar fee amount from this project would be authorized. However, insofar as the project has vested rights that were in effect in 1988 , the County is not authorized to impose a supplemental fee payment in excess of the applicable fees in 1988 . Accordingly, the fees that have been paid to date in excess of the amount that was required by ordinance as of July 12 , 1988 should be refunded to the applicant. C: \wpdoc\sub7144 . bo RD\ C. 109 LANFERMAN, FISHER & HASHIMOTO ATTORNEYS AT LAW June 25, 1996 RECEIVED JUN 2 61996 Honorable President and Members CLERK BOARD OF SUPERVISORS of the Board of Supervisors 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.)] L 3> 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 Authorizing 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. Bowel 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(a): 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 4466016 - 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 "Reliez Valley Road Fees." �7 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 FIHER & O D VI P. LANFE DPL\jf cc: John B. Bertero, III Vice President, Northern California Legal Affairs Kaufinan and Broad Darrell Bolognesi Manager, Land Acquisitions & Planning Kaufinan and Broad Matt Koart Vice President, Acquisitions & Planning Kaufinan 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.ltr 960625/1632 LANFERMAN, FISHER & HASHIMOTO ATTORNEYS AT LAW j SEP 26 PM 3. 33 Lopr September 24, 1996 VIA FACSIMII.E 335-1222 Mr. Dennis Barry COMMUNITY DEVELOPMENT DEPT. 651 Pine Street, 2nd Floor Martinez, CA 94553 Re: 'California Reserve"-- Kaufman and Broad Reliez Valley Road Near Lafayette, California Tract No. 7144 Dear Mr. Barry: I am writing to follow up on our client's statement of protest dated 6/25/96, and objection to the "Reliez Valley Road Fee" imposed by the County against this project. You may recall that the County Board of Supervisors referred this protest to your offices' attention at its meeting of July 9, 1996. Shortly thereafter, I contacted the County's Counsel's office and was informed that the response to our concerns would be coming from Community. Development. We are still awaiting that response. In the meantime, my client has had to pull additional building permits and has had to advance additional disputed moneys under protest for this inappropriate "fee." The study for the purported fee was not even done until after our development rights had vested in 1989. The subject "fee" itself has apparently never been authorized by the .County Board. -- We would hope that your office would soon confirm that this is an inappropriate exaction against this project and recommend that the County reimburse these fees to our client without-further delay. In view of the statutory time frames, we will be compelled to file suit against the County for a refund unless this matter is resolved by October 10. Please give this matter your urgent attention. 3100 MOWRY AVENUE,SUITE 300-FREMONT,CALIFORNIA 94538-1509 TELEPHONE:(510)494-5500-FAX:(510)494-5510-E-MAIL:LFH 1 aol.com Mr. Dennis Barry COMMUNITY DEVELOPMENT DEPT. September 24, 1996 Page 2 Thank you. Very truly yours, LANFERM ISHER & HIMOTO ly A L, P: L F RMAN - DPL\smm cc: David Schmidt -- Office of the County Counsel Darrell Bolognesi, Kaufinan and Broad - John B. Bertero, III, Esq., Kaufman and Broad Home Corporation f.\client\k&b\lafayett\db072496.ltr 960924/1025