HomeMy WebLinkAboutMINUTES - 11191996 - D25 plats
TO: i BOARD OF SUPERVISORS
�> °F Contra
r:
FROM: Finance Committee Costa
County
DATE: November 19 1996s
SUBJECT: KELLER CANYON PROPERTY VALUATION PROGRAM
SPECIFIC REQUESTS)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS: (Supervisor Torlakson Only)
1. ESTABLISH a start-up mitigation fund of$500,000 from Keller Canyon mitigation
reserve funds to reimburse property owners, in designated areas adjacent to Keller
Canyon Landfill, for property value losses.
2. DIRECT County representatives to vigorously pursue full compensation of property
valuation losses from BFI and to reimburse the County mitigation fund.
3. ESTABLISH a claim eligibility requirement of property ownership of July 24, 1990,
which means that property purchases after that date and property sales prior to that
date would not be compensated.
4. ESTABLISH a claim "window period" of six months for receipt of claims.
5. REQUEST staff to consult with Anderson and Brabant Inc. to develop a claims
process which minimizes paperwork, with consultant costs to be paid from the
mitigation fund.
6. REQUEST staff to consult with Sonoma State University to secure additional claim
approaches for Bailey Road, with consultant costs to be paid from the mitigation
fund.
CONTINUED ON ATTACHMENT: YES I SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S): Mark DeSaulnier Tom Torlakson
ACTION OF BOARD ON November 19, 1996 APPROVED AS RECOMMENDED X OTHER X
SEE ADDENDUM FOR BOARD ACTION AND VOTES-
VOTE OF SUPERVISORS
See addendum I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED November 19, 1996
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: GMEDA SUPERVISORS AND COUNTY ADMINISTRATOR
County Counsel cl
County Administrator
City of Pittsburg , 0 0d) DEPUTY
Page 2
7. EXAMINE a higher claim cap than $7,200 for Bailey Road and request advise on
the issue from Anderson and Sonoma State.
8. ESTABLISH an $8,400 claim cap for the Hillsdale area as described in 4.1 of the
attached staff report, rather than the staff recommendation of$5,700.
9. PROVIDE Hillsdale claimants the opportunity to choose either option one or option
two appearing as 4.1 and 4.2 in the staff report.
10. CONSIDER additional Hillsdale zone options within section 4.2 of the staff report
which provides for two and four times the amount recommended by staff which was
$500, $1,000 or$1,500.
11. CONSIDER the feasibility of a base payout for all claimants which relieves the
County of all legal responsibility and allows claimants to pursue additional claims
against BFI for uncompensated losses.
12. DIRECT County representatives to discuss with the City of Pittsburg the concept of
a "community benefit", as described in 5.0 of the staff report.
13. DIRECT County representatives to continue to pursue a good neighbor agreement
between the County, Browning Ferris Industries and the City of Pittsburg to resolve
issues involving air monitoring, the limitation of the types of waste acceptable at the
Keller Landfill, and landscaping.
BACKGROUND:
On October 29, the Finance Committee reviewed the progress of the Keller Canyon
Property Valuation program referred to the Committee on July 16 and on October 15. The
Director of the Growth Management and Economic Development Agency presented
recommendations on how the County should proceed with the Property Valuation program.
His report is attached for your reference and review.
Lengthy testimony was heard from persons living near the landfill and from the City of
Pittsburg. A representative from BFI was also present.
The Committee, consisting of Supervisor Torlakson, crafted 13 recommendations on how
the County should proceed by amending the staff report. Supervisor Torlakson also
suggested holding another Finance Committee meeting prior to Board reviewing this item
on November 19.
�. �L
ADDENDUM TO ITEM D. 25
NOVEMBER 19, 1996
On this date the Board of Supervisors considered the Finance
Committee' s recommendations on the Keller Canyon Property
Valuation Program.
Supervisor Torlakson presented the report and
recommendations .
The following persons presented testimony:
Sandra Leary, 11 La Mesa Lane, Walnut Creek;
Lance Dow, 2232 Concord Drive, Pittsburg, representing
Citizens United;
Frank Aiello, 1734 Bridgeview, Pittsburg;
Naomi Fay Hytholt, 610 South Broadway, Pittsburg;
Jimmie Hensler, 2214 Mt . Whitney Drive, Pittsburg;
Kevin Carunchie, 2020 Railroad Avenue, Pittsburg;
Frank Sharkey, 751 Bailey Road, Pittsburg;
Jim Leary, 11 La Mesa Lane, Walnut Creek.
The Board discussed the matter.
Supervisor Torlakson moved approval of recommendations 1 and
2 , with the amount to be $485, 000 in recommendation 1 and to
include the City of Pittsburg and BFI in recommendation 2 .
Supervisor DeSaulnier seconded the motion. The vote on the
motion was as follows :
AYES : Supervisors Rogers, DeSaulnier, Torlakson and Smith
NOES : None
ABSENT: Supervisor Bishop
ABSTAIN: None
Supervisor Torlakson moved approval of recommendations 3 and
4 with a start period of January 1, 1997, and a four month window
period for receipt of claims . The vote on the motion was as
follows :
AYES : Supervisors Rogers, DeSaulnier, Torlakson and- Smith
NOES : None
ABSENT: Supervisor Bishop
ABSTAIN: None
Supervisor Torlakson moved approval of recommendations 11,
12 , and 13 . Supervisor DeSaulnier seconded the motion. The vote
on the motion was as follows :
AYES : Supervisors Rogers, DeSaulnier, Torlakson and Smith
NOES : None
ABSENT: Supervisor Bishop
ABSTAIN: None
Supervisor Smith moved a compromise on the rest of the
matter to come back with a reasonable way of allocating the
$485, 000 plus whatever can be obtained from BFI and the City of
Pittsburg. Supervisor DeSaulnier seconded the motion.
Supervisor Torlakson moved to also ask staff to look first at the
Bailey Road situation. Supervisor Smith concurred but wished to
divide it into two parts, making a finding that there is some
evidence to substantiate a true value loss in the Bailey Road
area and requesting staff to come up with a proposal for
reimbursing that loss from the money that the Board has just
designated and come back with a claim program, claim based
program for community benefit for the Hillsdale area and Bailey
area for those people who are not interested in demonstrating the
loss to qualify for the valuation issue . Supervisor Torlakson
concurred. Supervisor Smith further clarified that other monies
will be in a claims based system not specifically related to
valuation but related to community benefit and to what has been
talked about in the past . Supervisor Torlakson concurred with
the direction to staff as outlined by the Chair. The Board
discussed the motion. The vote on the motion was as follows :
AYES : Supervisor Rogers, DeSaulnier, Torlakson and Smith
NOES: None
ABSENT: Supervisor Bishop
ABSTAIN: None
Supervisor Torlakson indicated that direction to staff
included looking at the ways to minimize transaction costs .
Request to Speak Form
( THREE (3) MINUTE LIM T)
Cwnplete this farm and place it in the box near the gxmkerrs' rostr m
before addressing the Board.
1rhone
lame: -•
Citm
Addre m „" o N- .0 , S &`4
I�
1 am speaking for nwWf____,...or organization: K.\ (- �) /�'
�atne d .
OiECK ONE:
I wish to speak on Agenda ttem #�i?ate�
My comments will be: g ...,.Lfor..,._ �__—.- -•
I wish to speak on the Kib)ect .
._.+.. b
1 do not wish to speak but leave Omme comments for.the Board
to
DATE: October 24, 1996
TO: Finance Committee
FROM: Val Alexeeff, Director of Growth Management &- Economic
Development Agency
SUBJECT: SUGGESTED PROCESS FOR I(ELLER CANYON LANDFILL
PROPERTY VALUATION
CRITERIA
BFI is required to compensate for property losses attributable to the landfill. So if Board
directs BFI to fund compensation then some sort of evidence/proof of value loss
attributable to landfill will be required.
BAILEY ROAD: Evidence/proof has potentially been provided by Anderson &- Brabant
report for the properties along Bailey Road. This report has been accepted and no
challenge has been received at this time.
HILLSDALE: Evidence/proof still needed for any additional properties being considered
for compensation.
1.0 FUNDING SOURCE:
Earmark $300,000 from Keller mitigation funds for expenditure for property valuation.
1.1 This action does not preclude seeking funds from BFI or other sources, but
it enables staff to develop a procedure rather than keep returning to the
elected body.
1.2 This amount does not constitute a cap since no such action has been taken
by the Board.
VA/DD:dg/dd
j:\goups\cdadpool\dding\process.kcI
Report to the Finance Committee
Keller Canyon Landfill Property Valuation
Page 2
2.0 ELIGIBILITY
Establish eligibility/qualification for claims:
2.1 Staff has assumed the date for ownership was the approval of the Land Use
Permit, luly 24, 1990. Therefore, purchase after that date would not be
compensated and sale prior to that date could not be compensated. A
property owner falling within the dates would be termed qualified.
A final decision on a single date must be made.
2.2 Construction of the facility began in November 1991. This could be
argued as the cutoff date since there was not visual evidence in the
community of an operating landfill until this time.
2.3 Operation of the facility began in Mav 1992. This could be argued as the
cutoff date since the landfill operational effects did not occur prior to this
time.
2.4 Only those Property Owners on Bailey Road or Hillsdale who have
provided/will provide acceptable evidence of value loss attributable to the
landfill who owned/sold during a specified time period (optional time
periods provided above in 2.1, 2.2 &2.3) should be considered eligible.
A decision is necessary.
2.5 Sale will require proof that reduced value did not occur as a result of the
slump in the real estate market. (Newspaper articles in the same period
indicated $100,000 property value losses in Blackhawk.)
2.6 Window period. Staff would recommend a window period with a month
to prepare notice, three months to receive claims, and one month to review
claims prior to payout.
VA/DD:dgidd
j:\groups�cdadpoolklding\process.kcl
Report to the Finance Committee
Keller Canyon Landfill Property Valuation
Page 3
3.0 BAILEY ROAD COMPENSATION: Options
For Bailey Road properties as indicated by the Anderson study, the following options are
proposed.
3.1 Option 1: For rental properties, owner must have a certified appraiser
establish fair market rent for the same location, but without garbage trucks.
Provide evidence of rent received over most recent twelve months when
property was rented. Subtract the difference for a month and multiply by
twelve (months), multiply by 5%, then by ten (10 %) for the amount.
3.2 Option 2: Identify current monthly rent, multiply by twelve (months),
multiply by 5%, then multiply by 12.5% to yield the amount. (Anderson
report methodology)
3.3 For owner occupied properties, establish a cap on valuation and/or use fair
market value of a comparable property. (Cap indicated by Anderson report
for Bailey Road was $7,200.) The individual review process can be
followed. The essential question is to what extent would the property be
valued differently if landfill truck traffic did not occur Monday through
Friday between the hours of 7:30 a.m. to 5:00 p.m.
4.0 HILLSDALE: Options
There are several options for addressing the Hillsdale neighborhood.
For Hillsdale properties, there exists two options for individual compensation.
4.1 Option 1: Property owners may bring individual claims with evidence that
they have lost value as result of the landfill above and beyond the slump
in the overall real estate market. The cap to be used is recommended to be
the $5,700 figure identified in the Sonoma State University study (though
VA/DD:dg/dd
j:\groups\cdadpool\dding\process.kcl
Report to the Finance Committee
Keller Canyon Landfill Property Valuation
Page 4
no specific cap was identified. Evidence such as sale comparisons of
identified floor plans and improvements for areas in Hillsdale and
comparable locations could be used.
4.2 Option 2: This option would establish zones. The qualified property
owner within Zone A would receive $1,500. The qualified property owner
in Zone B would receive $1,000. The qualified property owner in zone C
would receive $500. No proof of value loss would be required. The
property owner would have to demonstrate eligibility. While property
owners with high claims would not receive higher compensation, the
transaction cost would be reduced and more people would benefit.
Justification for this concept is reduced transaction cost. However, some
agreement needs to be reached with BFI. BFI would not be required to pay
as a property compensation program unless tied to property losses
attributable to landfill impacts. The County is limited by prior Finance
Committee/Board action to expend Keller mitigation fees in
unincorporated areas (Hillsdale/Bailey Road neighborhoods are located in
the City of Pittsburg).
5.0 COMMUNITY BENEFIT ALTERNATIVE
Alternatively, the concept of a "community benefit" was discussed by the Board on
October 15, 1996 instead of actual compensation to individual property owners in
Hillsdale. This concept includes the idea of expending funds in the "affected
neighborhood" without determining actual property losses attributable to the landfill.
However, the funding for this "community benefit" concept remains unidentified. BFI
would not,be required to pay as a property compensation program unless tied to property
losses attributable to landfill impacts. The County is limited by prior Finance
Committee/Board action to expend Keller mitigation fees in unincorporated areas
(Hillsdale/Bailey Road neighborhoods are located in the City of Pittsburg).
VA/DD:dg/dd
j:\groups\cdadpool\dding\process.keI
Report to the Finance Committee
Keller Canyon Landfill Property Valuation
Page 5
6.0 CLAIM REVIEW PROCESS
6.1 County could hire a claims examiner (funded by BFI) to evaluate merit of
individual claims and supporting documentation. Also need a waiver/release of
liability from property owners who accept compensation which indicates no future
lawsuit against the County, etc.
VA/DD:dg/dd
j:`groups\cdadpoolklding\process.kcl
BRUEN & GORDON
THOMAS M.BRUEN A PROFESSIONAL CORPORATION TELEPHONE: (5 1 O)295-3 13 1
SCOTT W.GORDON FACSIMILE: (5 1 O)295-31 32
W.PHILIP CARUTHERS 1990 NORTH CALIFORNIA BOULEVARD
DAVID J. MILLER SUITE 940
WALNUT CREEK,CALIFORNIA 94596
October 14, 1996
RECEIVED
OCT 151996
Mr. Phil Batchelor CLERK BOARD
ARA OF
SU SUPERVISORS
Clerk, Board of Supervisors
Contra Costa County
651 Pine Street
Martinez, CA 94553
Re: Item D9 Report Regarding Residential Property Values
Near the Keller Canyon Landfill and Related Actions
Board of Supervisors Agenda for October 15, 1996
Dear Mr. Batchelor:
Enclosed herewith please find a copy of my November 22, 1995 letter to Valentin
Alexeeff,previously submitted to Mr. Alexeeff,his staff and to County Counsel in connection
with the above-referenced matter. Although the Board has been fully briefed regarding the letter
'and its content, I wanted to provide a courtesy copy to the Clerks office for the Administrative
Record of this proceeding.
Thank you for your courtesy and cooperation in this matter.
Very truly yours,
Thomas M. Bruen
TMB:jcf
Enclosures
RECEIVED
BRUEN & .GORDON .,�r .A �2 .L
A PROFESSIONAL CORPORATION OCT I 5 I[�
1000 NORTH CALIFORNIA BOULEVARD J�
SURE 940
WALNUT CREEK.CALIFORNIA 04590 CLERK BOARD OF SUPERVISORS
15107 205-3131 CONTRA COSTA CO,
FAX 15107 295-3132
November 22, 1995
VIA FACSB41LE&U.S. MAIL
Mr. Val Alexeeff, Director
GMEDA
Contra Costa County
651 Pine Street
2nd Floor, North Wing
Martinez, CA 94553
Re: Keller Canyon Landfill Property Valuation Study
Dear Val:
At the October 17th hearing before the Board of Supervisors on the Keller Canyon
Property Valuation Study, the Board directed staff to prepare for its consideration a list of
alternative courses of action and procedures to be followed in evaluating the Study and in
determining whether to award compensation to property owners near the Keller Canyon landfill.
We are writing to you on behalf of the Keller Canyon Landfill Company("Keller Canyon")to set
forth our views on this subject.
There are two threshold issues which need to be addressed by the Board of Supervisors:
(1)whether the Board has the legal authority to require that Keller Canyon.pay compensation to
local property owners based on the Sonoma State Study; and (2)what are the hearing and pre-
hearing procedural rights of Keller Canyon given this potential Board action? We believe that
both issues involve important questions of law which need to be resolved prior to the next Board
hearing on the Sonoma State Study. The purpose of this letter, therefore, is to give you our view
of the applicable legal authority on both of these issues.
Mr. Val Alexeeff
November 22, 1995
Page 2
I. The County Lacks Authority to Impose a Property Value Compensation Fee Based Upon
the Keller Canyon Landfill Property Valuation Study.
A. Land Use Permit Condition 35.3 Authorizes Compensation for Physical Impacts
Only. And the Keller Canon Landfill Property Valuation Study Identified No
Significant Physical Impacts.
Condition 35.3 of the Keller Canyon Landfill conditional use permit provides in its entirety
as follows (emphasis added):
Property Value Compensation Program. The [Keller Canyon] Landfill operator
shall provide funding for the preparation of a property value compensation
program study when requested by the County of Contra Costa. The study will
address the means of determining the extent of property value lasses or reductions
attributable to Landfill impacts, such as aesthetics, noise, traff c, or pollution,
and the means of compensating property owners for said losses or reductions.
When a compensation program is adopted by the Board of Supervisors, the
Landfill developer shall fund it in the manner specified by the Board. If the Board
of Supervisors determines that progress on the implementation of a compensation
program is not proceeding in a timely manner, the Board may require the use of a
facilitator and/or an arbitrator. The fee shall be considered to be a pass-through
business cost for the purposes of rate setting.
Thus, the compensation program authorized by Condition 35.3 is clearly limited to"losses or
reductions attributable to Landfill impacts, such as aesthetics, noise, traffic, or pollution"--all of
which are physical impacts. Condition 35.3's limitation to physical impacts was expressly affirmed
by the County in the course of the permit condition negotiations.
The Keller Canyon Landfill Property Valuation Study provides no evidence that the Keller
Canyon facility has had any significant physical impacts on surrounding communities. The Study,
which was commissioned by the County and prepared by Sonoma State University, concludes that
noise affected only 10% of one of the three neighborhoods studied-- and this impact was found to
have gone away by the time of the third field survey,which occurred after the Landfill had
disabled the back-up beepers on its trucks. Property Valuation Study, pp. 65-6. "Landfill-
generated dust, odor and wind-carried trash were not found to affect any of the primary
neighborhoods." Id., at p.7. In sum, the Study does not document any significant physical
impacts of the Landfill on local properties.'
'The absence of physical impacts also precludes the County from claiming mitigation
authority under the California Environmental Quality Act ("CEQA"). CEQA authority does not
extend to the mitigation of purely economic impacts. Pub. Res. Code §§ 21004, 21068, 21060.5;
Mr. Val Alexeeff
November 22, 1995
Page 3
B. In Addition to Being Unauthorized By Condition 35.3. Fees for Purported
"Psychological" Effects Cannot be Assessed Because Such Effects Are Illusory.
As discussed above,the Property Valuation Study concludes that the Keller Canyon
facility creates no significant physical impacts in the neighborhoods studied. Apparently, the
authors of the Study believe the purported loss of property value"premiums" identified by the
Study in one neighborhood is the result of some psychological"stigma" which may be caused by
the(unfounded) statements of local Landfill opponents. Not only are such impacts unrelated to
the conduct of the Landfill operations, the Sonoma State Study contains critical flaws which
render it unusable as reliable evidence of any cause and effect whatsoever. These flaws are
discussed in the Coopers&Lybrand report filed with your office on November 16th. The errors
in the preparation of the Property Valuation Study have so skewed the results that the Study
cannot provide any reliable evidence of property value diminution, even as the result of alleged
psychological factors. Moreover, applying the use permit condition to require compensation for
alleged "psychological" property value effects occurring before the landfill commenced operations
in May, 1992.violates the basic tenet of statutory and constitutional construction prohibiting the
retroactive application of governmental enactments and impositions.
C. Keller Canyon Landfill Was Not Provided with Effective Notice of the Fees It Was
Expected to Pay.
Imposition of the contemplated compensation fees at this point in time would violate
Keller Canyon's procedural due process rights. Due process mandates that developers such as
Keller Canyon be afforded"effective notice of the fees they will be expected to pay." Kau an &
Broad Central Yalley. Inc. a ON ofModesto, 25 Cal.AppAth 1577, 1589(1994). As the Court
stated:
"A developer about to commit substantial time and resources to a project should
be able to predict with at least some degree of assurance what the fee will be when
the time comes to pay it."
Id, at 1589.
In addition to being expressly limited to physical impacts, condition 35.3 clearly indicates
that any resulting fee"shall be considered to be a pass-through business cost for the purposes of
rate setting." Thus, at the time condition 3 5.3 was included in the use permit, Keller Canyon
believed that any compensation fee would be limited to physical impacts and that funding for the
compensation was to be"passed-through" to rate-payers under rates set by the Board of
Supervisors-- and thus not to be paid out of the Company's proprietary revenues or profits. -
14 Ca1.Code Reg. §§ 15040(b), 15041(a), 15382.
Mr. Val Alexeeff
October 14, 1996
Page 4
Instead, Keller Canyon is now faced with a proposed property compensation fee of several million
dollars for alleged non-physical effects, which fee can no longer be recovered from ratepayers. '
Clearly, this fee is far different than, and far exceeds, the fee Keller Canyon was notified of upon
issuance of the conditional use permit.'
D. Ihe Compensation Fee Would be a Violation of the 5th Amendment Takings
Clause.
Because the Keller Canyon facility does not result in significant physical impacts, there is
no "essential nexus"between the compensation fee now being considered by the County and a
"legitimate state interest.s" Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987).
Nor is there a"rough proportionality" between the fee and the facility's alleged impact. Dolan v.
City of Tigard, _U.S. __; 114 S.Ct. 2309, 2319 (1994) (condition must be related"both in
nature and extent"to impact of development). Accordingly, the fee would constitute a taking
under the Fifth Amendment to the United States Constitution.
'Recent United States Supreme Court cases have interpreted the Commerce Clause in the
United States Constitution as prohibiting certain local government restrictions on the flow of solid
waste within states. These rulings, in turn, have resulted in neighboring counties relaxing their
restrictions on the export of Contra Costa waste into landfills in these counties, causing
competition for landfill disposal to increase dramatically. Recognizing that rate controls over
Keller Canyon's disposal fees were no longer needed or effective, the Board of Supervisors
removed these controls on Keller Canyon's rates last June. Also, Keller Canyon has been forced
to greatly decrease its disposal fees to remain competitive, and to commit to these lower fees in
long term disposal contracts with several jurisdictions. The County itself is a party to one such
contract. Therefore, it is no longer feasible for the Board to order compensation fees be added
onto Keller Canyon's rates as a"pass-through" cost, and Keller Canyon would be unable to pass
such fees onto its customers.
'As indicated above, the Keller Canyon facility was constructed in reliance on the
County's assurances that any compensation fee would only apply to physical impacts and that it
could be passed-through to ratepayers. Accordingly, the County is now estopped from denying
that condition 35.3 refers only to physical impacts and fees that can be"passed-through." See
City of Long Beach v. Mansell, 3 Cal.3d 462 (1970).
'It also does not appear that the County's imposition of a fee to enrich select landowners
reflects a"legitimate state interest." Thus, the imposition of the fee may be in excess of the
County's"police power" authority.
Mr. Val Alexeeff
November 22, 1995
Page 5
E. The Compensation Fee Would Be Invalid Under the Government Code and
Proposition 13.
The compensation fee now being considered by the County exceeds the reasonable cost of
providing the service for which it is being imposed, because the proposed compensation payment
would not be in exchange for a service being provided to the developer--i.e.,Keller Canyon. The
compensation fee thus violates Government Code section 66005 which limits fees imposed on
development projects'to the"reasonable cost of providing the service or facility for which the fee
or exaction is imposed." Gov. Code § 66005(a). In addition, the amount of the compensation fee
allocated to Keller Canyon would not bear a fair and reasonable relation to Keller Canyon's
benefit from the fee, since Keller Canyon would receive no benefit from the proposed fee. Thus,
the fee would also be invalid under Proposition 13 as a special tax imposed without voter
approval. Bixel Associates v City of Los Angeles, 216 Cal.App.3d 1208 (1989).
F. The Compensation Fee Would Violate Keller Canyon's Substantive Due Process
and Equal Protection Rights.
The County has previously approved several other industrial and waste handling facilities
without imposing fees for property value compensation. Thus, the County's imposition of a fee
here is arbitrary and irrational in violation of the substantive due process and equal protection
.guarantees of the California and federal Constitutions. See, e.g., Herrington v. County of
Sonoma, 834 F.2d 1488 (9th Cir. 1987).
H. Keller Canyon Must be Granted Full Due Process Rights Prior to the Imposition of Any
Compensation Fee.
A. Full Due Process Rights are Required by the Constitution and the Government
Code.
Because nonpayment of the proposed compensation fee could result in revocation of
Keller Canyon's conditional use permit, and given the magnitude of the potential fee, the
imposition of this fee would impact a significant property interest. Goat Hill Tavern v. City of
Costa Mesa, 6 Cal.App.4th 1519, 1529 (1992) ("the right to continue operating an established
business in which [the owner] has made a substantial investment" is a"fundamental vested right"
and subject to court review under the"independent judgment" standard). Thus, constitutional
due process requires that Keller Canyon be provided a fair hearing prior to the deprivation of this
interest. Horn v. County of Ventura, 24 Cal. 3d 605 (1979).
"'Development project" is broadly defined as"any project undertaken for the purpose of
development." Gov. Code § 66000(a).
Mr. Val Alexeeff
November 22, 1995
Page 6
B. Keller Canyon Must be Granted Full Discovery and Hearing Rights.
Because a significant property interest will be affected, Keller Canyon must be provided
with the right to subpoena relevant documents and statements (Shively v. Stewart, 65 Ca1.2d 475
(1966)), depose witnesses for evidentiary material within their possession or control (Everett v.
Gordon, 266 Cal.App.2d 667, 672-73 (1968)), and pose interrogatories (Romero v. Hera, 276
Cal.App.2d 787 (1969)). Keller Canyon must also be granted subpoenas requiring witnesses to
attend the hearing and be subject to cross-examination. McLeod v. Board of Pension
Commissioners, 14 Cal.App.3d 23, 28 (1970) (right to cross-examine witnesses in administrative
proceedings is fundamental element of due process).
In this proceeding,Keller Canyon should be allowed to subpoena representatives of
Sonoma State and any relevant County staff and public witnesses to attend and testify at the
hearing, and be allowed to cross-examine adverse witnesses. Keller Canyon should also.have the
right to conduct reasonable pre-hearing depositions of the Sonoma State representatives
regarding the issues raised in the Coopers&Lybrand report and the declaration of Dwight
Duncan. Please consider this letter our formal request for such pre-hearing discovery.
As you can see, the County's proposed action raises numerous significant concerns.
Keller Canyon will continue to comment on these issues as proceedings progress and hopes that a
balanced process, giving due regard to Keller Canyon's substantive and procedural rights, is
adopted.
Very truly yours,
Thomas M. Bruen
TMB:jcf
cc: Victor I Westman, County Counsel