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HomeMy WebLinkAboutMINUTES - 12021997 - D16 Contra Costa TO: BOARD OF SUPERVISORS o; w+v�Rfp�► , '_ - County FROM: DENNIS M. BARRY, AICP '•. INTERIM COMMUNITY DEVELOPMENT DIRECTOR °sr"-------i'� A COUK DATE: December 2 , 1997 SUBJECT: WITHDRAWAL OF APPEAL BY DAVIDON HOMES RELATIVE TO PARK FEES ON RELIEZ VALLEY HIGHLANDS SUBDIVISION, LAFAYETTE AREA. SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS ACCEPT withdrawal of appeal by Davidon Homes on park dedication fee charges for the Reliez Valley Highlands Subdivision. FISCAL IMPACT None for accepting the withdrawal of the appeal. BACKGROUND/REASONS FOR RECOMMENDATIONS On September 5, 1997 , Davidon Homes appealed the decision of the Director of Community Development with regards to the amount of park dedication fees due on the Reliez Valley Highlands Subdivision (Subdivision 7151) . Since that time, the County and the developer have entered in to a settlement agreement that has resolved the issue of park dedication fees. Attached is a letter dated November 19, 1997 requesting withdrawal of their appeal. A copy of the settlement agreement is on file with the Clerk of the Board. CONTINUED ON ATTACHMENT: YES SIGNATURE , RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM_=,TEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON December 2 . 1997 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A x UNANIMOUS (ABSENT #IV 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:Mitch Avalon - 335-1210 orig: Community Development Department ATTESTED December 2 , 1997 cc: County Counsel PHIL BATCHELOR, CLERK OF County Administrators Office THE BOARD OF SUPERVISORS Public Works AND COUNTY D INISTRATOR Heather Ballenger Community Development BY , DEPUTY Jim Kennedy RMA/df bo3 :davidon.bo MCCUTCHEN MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP RECEIVED November 19, 1997 NOV 2 p 1997 Direct: (510)975-5367 CLERK bOARD OF'SUPiH=tV1SOFtS mcooper@mdbe.com CONTRA COSTA CO. HAND DELIVERY Phil Batchelor Clerk of the Board of Supervisors Contra Costa County 651 Pine St., 11th Floor Martinez, CA 94553 Appeal of Davidon Homes from the decision of the Director of Community Development on Park Fees relative to the Reliez Valley Highlands, Lafayette area. Our File No. 71599-134 Dear Mr. Batchelor: This firm represents Davidon Homes in this matter. Pursuant to the settlement agreement between Davidon Homes and the County, Davidon Homes withdraws the above- entitled appeal, which was taken by letter dated September 5, 1997 from Geoffrey Robinson. Very truly yours, Ma(((rie A. Cooper cc: Diana Silver (by hand delivery) Dennis Razzari (by facsimile) A T T O R N E Y S A T L A W 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596-1270 Los Angeles Washington, D.C. Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchon.com Walnut Creek 3) ia�T�a aos�a 97 NOV 19 PM 3= 55 COMMUfr1TY SETTLEMENT AGREEMENT DEVELOPMENT DEPT° MUTUAL RELEASE AND COVENANT NOT TO SUE This Settlement Agreement, Mutual Release and Covenant Not to Sue ("Agreement") is entered into by and between Davidon Homes ("Davidon") and the County of Contra Costa ("County"). Davidon and the County are sometimes referred to in this Agreement as the"Parties." RECITALS A. There is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, a lawsuit a tied Davidon Homes v. County of.Contra Costa, Civil Action No. C 97-03545 (the" tion"). There is also pending an appeal to the Board of Supervisors by Davidon that a esses the same subject matter as the Action(the "Appeal"). B. The Parties desire to compromise the Action and the Appeal completely between themselves without any admission of liability and to avoid the expense of further litigation. C. This Agreement relates to the Reliez Valley Highlands subdivision, which is the subject of Vesting Tentative Map number 7151, and Final Vesting Subdivision Map numbers 7151, 7820 and 7821 (the "Subdivision"), located in the unincorporated area of Contra Costa County. This Agreement relates to amounts paid or to be paid by Davidon to offset the impacts of the Subdivision on parks and recreation, whether those fees be called Park Dedication Fees, Quimby Act Fees, the fees referenced in Contra Costa County Code sections 920-4.002 et seq., fees in lieu of land dedication for park or recreation purposes, or by any other name ("Park Fees"). AGREEMENT 1. This Agreement shall be effective on the date last executed by Davidon, or duly approved by the Board of Supervisors of the County, whichever is later. The Parties understand and agree that the Board will authorize the County Counsel's Office to sign this agreement on behalf of the County after approval by the Board, and that the County Counsel's signature shall be sufficient to bind the County. 2. The Parties agree that Davidon has paid $47,200 as Park Fees for the Subdivision, at the times, and for the lots in the Subdivision shown on Schedule A, attached to this Agreement and incorporated by this reference. The County shall pay a refund to Davidon in CA973010.019/71599-134 the amount of$6,650, which shall be paid to Davidon within 30 calendar days of the effective date of this agreement. 3. The maximum amount of Park Fees the County can charge Davidon for lots in the Subdivision other than those lots listed on Schedule A, is $1,550.00 per lot, due and payable for each lot at the time of final inspection of each residence. County shall not require any monetary exaction, land, or other thing to offset the impacts of the Subdivision on parks, recreation or open space, other than: (a) the Park Fees referenced in this paragraph, (b) the open space,park, and recreation items that are overtly, expressly referenced on the face of VTM 7151 or its conditions of approval 4. The Parties agree to dismiss immediately all claims and cross-claims in the Action, and to dismiss the Appeal, with prejudice, upon the effective date of this Agreement. 5. Except for the ability to enforce this Agreement, each Party releases and forever discharges the other of and from and waives any and all claims, demands, controversies, actions, causes of action, obligations, damages and liabilities of any nature whatsoever,whether at law or in equity that it ever had, now has, or that it may hereafter have against the other and that arise out of the subject matter of the Action or the Appeal. 6. The waivers and releases in this Agreement include waivers and releases of any claims for costs, expenses and attorneys' fees, taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action or the Appeal. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action or the Appeal against employees, agents, officers, directors and partners of each Party in their individual capacities, as well as claims against the Parties. 7. Each Party agrees that it will not commence, maintain, continue or voluntarily assist in any way in the prosecution by any other person or entity of any claim against the other, any related corporate entity, or any present or former employee of the other, relating to any matter waived or released in this Agreement. 8. Neither the transfer of any consideration, the doing of any of the acts referred to in this Agreement, nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for or merit of any claims asserted by any of the other Parties. The Parties deny all such claims. 9. The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist. 10. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. Davidon expressly agrees to dismiss the pending litigation 2 CA973010.019 with prejudice and to withdraw its pending administrative appeal before the Board of Supervisors and to bear all costs associated with these acts. 11. This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral. There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Agreement. 12. No amendment of, supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly stated. DAVIDON HOMES VICTOR J. WESTMAN, COUNTY COUNSEL By: Dennis Razzari, By: Vice President Diana J. Silver, Deputy County Counsel 3 CA973010.019 '5109458000 DAUIDON HOMES F-782 T-973 P-002 NOU 19 197 06:36 N RELIEZ VALLEY HIGHLANDS PARK DEDICATION FEE TRACTS 7151,7820&7821 FEES PA.TD AS OF OCTOBER 28,1997 TRACT/ RELEASE BUILDING PARD RECEIPT' DATE CHECK PAID DIT tO^f N TF.R Pl✓ItMiT FEE N 1L 1V1SER PAID MMBER UNDER. FROM NUMBEATR PROTEST U„t7,UNTY 7151 1 _ 2 207359 1,100 33334? 8/14/96 61813 . 2 2 197292 1,100 322838 6/14/95 48205 3 MODEL, 191031 2,000 312220 2/1/94 32435# 8 2 195709 1,100 32492 4/11/95 46304 9 1 191326 1,100 312572 2/17/94 32974#* 1,100 ? 8/18/94** 38674 l0 2 195138 1,100 7 10/27/95 52413 11 4 214968 2,000 ;42990 8/22/97 73656&7365" YES 450 1.2 2 207358 1,100 33334? 8/14/96 61813 13 2 195837 1,100 ? 10,127/95 52413 14 1 193461 1,100 324392 4/11!95 46304 15 1 193462 1,100 319785 1/13/95 43105 16 2 195711 1,100 ? 12/6/95 53734 17 2 I95139 1,100 3,22838 6/14/95 48205 18 2 195836 1,100 322838 . 6/14/95. 48205 19 1 191327 1,100 312572 2117/94 3-29749* 1,100 ? 8/18/949'* 38674 1,100 20' 1 191328 1,100 312572 2/17/94 32974#' 1,100 ? 8/18/54** 38674 1,109 21 1 191329 1,100 312572 ' 2/17/94 329744* 1,100 ? 8118/94** 38674 1,100 #PARK FEE PAID ISSUANCE.OF BUfLDING PERMLT *LATS 9,19,20&.21 PAID PARK FEESTWICE.�uu;1,100 PER LOT REFLECTS DATE OF CFLQCK NOT ACTUAL DAY FEES WERE PAID 22 3 200962 1,100 329242 3/11/96 56628 2; 3 200963 1,100 329242 3/11/96 56628 24 3 200964 1,100 333341 8714/96 61812 2i 3 200965 1,100 333+41 8/14/96 61812 26 3 200966 1,100 333341 81'14/96 61812 2.7 3 200967 1,100 320242 3!11/96 56628 28 3 200968 1,100 ? 12/5/95 53727 29 3 200969 1,100 333341 8/14/96 61812 10 3, 200970 1,100 333343 8/14/96 61812 31 3 200971 1,100 333341 8/14196 61812 32 3 200972 1,100 ? 5/22/97 70837 ^+3 3 200973 1,100 ? 5/22/97 76837 34 3 200974 1,100 ? 5.22/97 70837 7921 4 214832 2,000 344953 10/28/97 76237 YES 4.50 S 4 214833 2,000 343735 9/18/97 74630&7463 YFiS 4SO 7 4 214835 2,000 343735 . 9/1 8J97 74630&7463' YES 450 26 4 214836 2,000 34X735: 9/18/97 74630&7463 YES 450 TOTAL 34 LOTS 47,200Y S� 6,650� Page 1 SCHEDULE A ATTORNEY OR PARTY WITHOUT ATTORNEY(Name and Address): TELEPHONE NO.: FOR couRr USE ONLY (510) 937-8000 Geoffrey Robinson 112997 Marie Cooper 114728 McCutchen, Doyle, Brown & Enersen 1331 N. California Boulevard; P.O. Box V Walnut Creek, CA 94596-1270 ATTORNEYFOR(Name): Petitioner/Plaintiff Davidon Homes Insert name of court and name of judicial district and branch court,if any: Contra Costa County Superior Court PLAINTIFF/PETITIONER: Davidon Homes DEFENDANT/RESPONDENT: County of Contra Costa REQUEST FOR DISMISSAL CASE NUMBER: Q Personal Injury, Property Damage,or Wrongful Death Q Motor Vehicle Q Other C 97-03545 Q Family Law Q Eminent Domain 0 Other (specify): Writ Petition; Damages; Dec Relie A conformed copy will not be returned by the clerk unless a method of return is provided with the document. — 1. TO THE CLERK: Please dismiss this action as follows: a. (1) 0 With prejudice (2)Q Without prejudice b. (1) Q Complaint (2)Q Petition (3) Q Crass-complaint filed by(name): on(date): (4) Q Cross-complaint filed by(name): on(date): (5) 0 Entire action of all parties and all causes of action (6) Q Other(specify):'% Date: November 19, 1997 McCutchen, Doyle, Brown & Enersen Marie A:. 27,'_' L (TYPEO.R PRINT NAME OF Z i ATTORNEY Q PARTY WITHOUTATTORNEY) (SIGNATURE) Attorney or party without attorney for:Davidon Homes at If dismissal requested is of specified parties only, of specified causes of action only, or of specified cross-complaints only, so state and identity 0 Plaintiff/Petitioner Q Defendant/Respondent the parties,causes of action,or cross-complaints to be dismissed. Cross-complainant 2. TO THE CLERK: Consent to the above dismissal is hereby given.°° Date: (TYPE OR PRINT NAME OF 0 ATTORNEY Q PARTY WITHOUT ATTORNEY) (SIGNATURE) Off If a cross-complaint - or Response (Family Law) seeking affirmative Attorney or party without attorney for: relief - is on file, the attorney for cross-complainant (respondent) must sign this consent if required by Code of Civil Procedure section 0 Plaintiff/Petitioner Q Defendant/Respondent 581(i)or(j). O Cross-complainant (To be completed by clerk) 3. Q Dismissal entered as requested on(date): 4. Q Dismissal entered on(date): as to only(name): 5. Q Dismissal not entered as requested for the following reasons(specify): 6. Q a.Attorney or party without attorney notified on(date): b. Attorney or party without attorney not notified. Filing party failed to provide 0 a copy to conform Q means to return conformed copy Date: Clerk, by Deputy Form Adopted by the REQUEST FOR DISMISSAL Code of civil Procedure.§581 at seq. Judicial Council of California Cal.Rules of Court,rules 383,1233 982(x)(5)[Rev.January 1,1997) 1 PROOF OF SERVICE ON ATTORNEY'S OFFICE BY PERSONAL DELIVERY 2 (CCP 1011) 3. I am a citizen of the United States, over 18 years of age, and not a party to this action. 4 On November 19, 1997, I personally delivered a copy(ies) of the following 5 document(s): 6 REQUEST FOR DISMISSAL 7 1 served a copy(ies) of the document(s) in an envelope(s)by leaving the 8 envelope(s) clearly labeled to identify the attorney being served: 9 El I left the document(s)with a receptionist or with a person having charge of the office. 10 ❑ There was no person in the office with whom the document(s)could be left. I left 11 the document(s)between nine in the morning and five in the afternoon in a conspicuous place in the office. 12 13 The name(s) and address(es) of the person(s) served as shown on the envelope(s) was/were: 14 Ms. Diana J. Silver 15 Deputy County Counsel Contra Costa County 16 651 Pine Street, 9th Floor P. O. Box 69 17 Martinez, CA 94553 18 I declare under penalty of perjury under the laws of the St e of California that the 19 foregoing is true and correct and that this declaration as executed on embe 19, 1997. �' ,�I 20 r 21 Print Name Of Person Making Aand Delivery: 22 23 24 25 26 2 PLEADING.01 t '14. 1997 5: 24PM MCCUT(ID Vi!�C � Ala. 4401 P. 2%4 � 1,1i MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP / J 2 r��� �, L ((( J May 14, 1997 Direct:$10 975-5335 grobinsonra�mdbe.com VIA TELECOPIER Honorable President and Members of the Board of Supervisors Contra Costa County 651 Pine Street Martinez, CA 94553 Reliez Valley Highlands Project Reliez Valley Parkland Development Fee Protest Our File 71599-134 Dear President and Members of the Board of Supervisors: This firm represents Davidon Homes, developer of the Reliez Valley Highlands project, Tracts 7151, 7820 and 7821 ("Project"), a residential development located within Contra Costa County ("County"). The purpose of this letter is to protest the imposition of a parkland dedication fee("Fee")on this Project. Davidon has paid the Fee for 34 units at the rate of$1,100 per unit and for five units at the rate of$2,000 per unit, for a total payment of$47,400. The County has informed Davidon that this Fee must be paid at the rate of$2,000 per unit for the remaining units in this Project. For the reason set forth below, it is our opinion that imposition of the Fee violates the Quimby Act, Government Code § 66477, and the provisions of the Contra Costa County Code governing imposition of parkland dedication fees, This letter constitutes a protest,pursuant to Government Code § 66020-21 and other applicable law, against the establishment, imposition and collection of this Fee and a requests that all such Fees paid to date be refunded pursuant to Government Code § 66020(e)with interest at the rate of 8%. ATTORNEYS A T L A W 1331 N. California Blvd., P.O. Box V San Francisco Palo Alta Walnut Creek, California 94596.1270 Los Angelos Washington, D.C. Tal. t510) 937-8000 Fax 1510) 975.5390 San Jose Taipei http://www.mccutchan.com Walnut Creek ay. 14. 1997 5. ?51T N�CliiC;?�s w!C OIL No. X491 P. 3!4 P0resident and Members of the Board of Supervisors v �� May 14, 1997 Page 2 The County Has No Authority To Impose The Fee The Quimby Act,Government Code § 66477,1 establishes limitations on counties' power to require developers to furnish land or money for parks and recreational facilities. Under the Quimby Act, cities and counties may, by ordinance,require the dedication of land or impose a requirement of the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a tentative map or parcel map. [emphasis added] As this section indicates, county ordinances may only require Cie dedication of parkland or the payment of an in lieu fee as a condition of approval, The Quimby Act does not authorize a county to require dedication or the payment of a fee for parkland in the absence of a condition of approval. Pursuant to the Quimby Act, Contra Costa County has adopted Section 920-4002 of the County Code which provides that As a condition of approval of a preliminary or final development plan,tentative or final map or parcel map . . . the developer of land for residential use . . . shall dedicate land,pay a fee in lieu thereof, or do a combination of both,for neighborhood and community park or recreational purposes. [emphasis added] Consistent with the authority provided by the Quimby Act,this section of the County Code only requires dedication or payment of an in lieu park fee as a condition of approval. It does not require developers to pay parkland fees in the absence of such a condition. The conditions of approval for the final development plan and the vesting tentative map for the Reliez Valley Highlands Subdivision were combined as the"Conditions of Approval for Rezoning 2802-RZ, Final Development Plan 3029-88 and Vesting Tentative Subdivision Map 715 1" There are no conditions in these Conditions of Approval that require Davidon to pay a parkland dedication fee. The only condition relating in any way to All citations are to the Government Code. 14, 1997 `�: % ='N I~1�CG 15 '.%G �r 1v o, 44 1 F'. 4/4 Z ' President and Members of the Board of Supervisors L �� May 14, 1997 Page 3 the dedication of parkland or recreational facilities is the required dedication of a hiking trail under Condition 7. Moreover, even if the Conditions of Approval had included a requirement of payment of a parkland dedication fee, the County could not collect the fee at the rate of $2,000 from this Project because Davidon obtained an approved vesting tentative map for the Project in 1992. It thereby obtained a vested right to proceed with development in accordance with the ordinances, policies and standards in effect at that time. Those ordinances, policies and standards did not authorize the imposition of a$2,000 per unit park fee,nor did they contain a fee escalation provisions that provided reasonable notice of the amount and method of calculation of the increase. See Kaufman and Broad Central Valley, Inc. v. City of Modesto, 25 Cal. App. 4th 1577, 1587 (1994)(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" in order to impose new or increased fee on project with vested rights). Thus, the Project could not legally be required to pay the increased park fee even if its approval had initially been conditioned on payment of a park fee. Thus, under the Quimby Act, County Code section 920-4.002, and the Conditions of Approval, Davidon is not required, and cannot be legally compelled, to pay the Fee for the Project at the rate of$2,000 or any other amount. It is also entitled to a refund of all Fees paid to date for this Project. For the foregoing reason,Davidon Homes requests that the County rescind its requirement that a parkland fee in the amount of$2,000 per unit(or any other amount) be paid for this Project. It further requests that all such Fees paid to date be refunded, with interest at the rate of 8%, pursuant to Section 66020. Very truly yours, Geoffrey .. Robinson cc: Victor J. 'Westman, Esq. David Schmidt, Esq. Robert Drake Mal. L5. MI 5:u3rm M Tt,lltm Wit, 110. OJ3 r. 0 MCCUTCHE lsq �� MCCUTCHCN,DOYLE,BRowN&ENERSEN,LLP March 25, 1997 Dircct,510 975-5335 Mr. Robert Drake Planner Contra Costa County Community Development Department 651 Pine Street, Second Floor North Martinez, CA 94553 Parkland Development Fees for Reliez Valley Highlands Our File No. 71599-100 Dear Mr. Drake: Our client,Davidon Homes, asked me to respond on their behalf to the County's request for a$2,000 per unit parkland dedication fee for lots in the Reliez Valley Highlands Subdivision. I hope that this letter will clarify the law on parkland dedication and Davidon's understanding of its obligation to pay parkland dedication fees. I also briefly discuss the status of the subdivision's vesting tentative map,VTM 7151. The Quimby Act, Government Code § 66477, establishes limitations on counties' power to require developers to furnish land or money for parks and recreational fees. Under the Quimby Act, cities and counties may, by ordinance,require the dedication of land or impose a requirement of the payment of fees in lieu thereof,or a combination of both, for park or recreational purposes as a condition to the approval of a tentative map or parcel map. [emphasis added] As this quotation indicates, county ordinances may only require the dedication of parkland or the payment of an in lieu fee as a condition of approval. The Quimby Act does not authorize a county to require dedication or the payment of a fee for parkland in the absence of condition of approval. A TT O RN E YS AT L A W 1331 N. California Blvd., P.O. Box V Sen Francisco Palo Alto Walnut Creek, California 94596-1270 Los Angeles Washington, D.C. Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchan.com Walnut Creek .uu4. C.J. I J•V`fLX IYtVVUILoll GP1 fl/ V - 1r U, LOJJ 1. J Mr. Robert Drake March 25, 1997 Page 2 Pursuant to the Quimby Act,Contra Costa County has adopted Section 920-4002 of the County Code which provides that As a condition of approval of a preliminary or final development plan, tentative or final map or parcel map . . . the developer of land for residential use .. shall dedicate land,pay a fee in lieu thereof, or do a combination of both,for neighborhood and community park or recreational purposes. [emphasis added) Consistent with the authority provided by the Quimby Act,this section of the County Code only requires dedication or payment of an in lieu park fee as a.condition of approval. It does not require developers to pay parkland fees independent of such a condition. The conditions of approval for the final development plan and the vesting tentative map for the Reliez Valley Highlands Subdivision were combined as the"Conditions of Approval for Rezoning 2802•RZ,Final Development Plan 3029-88 and Vesting Tentative Subdivision Map 7151." There are no conditions in these Conditions of Approval that require Davidon to pay a parkland dedication fee. The only condition relating in any way to the dedication of parkland or recreational facilities is the required dedication of a hiking trail under Condition 7. Further,the omission of a condition relating to parkland fees is highlighted by the requirement under Condition 15(0)that the developer pay road improvement fees according to a specific,identified formula. Thus, under the Quimby Act, County Code section 9204.002,and the Conditions of Approval it appears that Davidon is not required to pay parkland fees for this subdivision. The fact that, at the County's request,Davidon has paid such fees in the past, does not entitle the County to future payments,unless there has been a legal basis for these requests. Finally,I understand that County Staff may under the impression that Vesting Tentative Map 7151 has expired. As you might expect,the vested rights created by this map are very important to Davidon's overall development plans for the subdivision. Let me assure you that the map is still valid. While it was initially set to expire on August 11, 1994,two years after it was approved, it has been extended until at least the year 2000 by a combination of the automatic extensions provided in Government Code sections 66452.6(a), tool. LJ. 1JJ1 J•V-f+Lti lI1VVV L V11L1l it/ Vvvv ` W. Robert Drake { March 25, 1997 Page 3 66452.11 and 66452.13. If future discussions warrant,I would be pleased to provide the County with a detailed explanation of how these Government Code sections extended the life of VTM 7151. Very truly yours, Geoffrey Robinson _ cc: Dennis Razzari Communit Contra Harvey E. Bragdon Y Director of Community Development Development Costa Department County County Administration Building 651 Pine Street s __.t 4th Floor, North Wing . .... = Martinez, California 94553-0095 Phone: s (510) 335-1214 sTq'poi;µ August 7, 1997 Geoffrey L. Robinson McCutcheon, Doyle, Brown, &Enersen 1331 No. California Boulevard . Walnut Creek, CA 94596-1270 Dear Mr. Robinson: Re: Response to Protest of Parkland Development Fee Reliez Valley Highlands, Vesting Tentative Map 7151 This is in response to your letters of March 25 and May 14, 1997 protesting parkland development fees within the Reliez Valley Highlands project, Vesting Tentative Map 7151. Your letters contend that the County may not legally collect a park dedication fee because the park fee was not included as a condition of approval for the above project. We have reviewed the matter with our legal counsel. Attached is a copy of their memorandum dated June 10, 1997. The memorandum opines that because the county ordinance and related park land dedication fees were adopted pursuant to the Quimby Act, the County is authorized to collect the park land dedication fees for this project. Therefore, this is to advise you that the County will require payment of the applicable park fees for this project. Insofar as the vesting rights under the vesting tentative map approval for each of the phased final maps for this project have expired, the County will require payment of$2000 per lot (the current park fee) for any remaining parcels. Should you have any questions, please call Bob Drake of my staff at (510) 335-1214. Sincerely, /`{. DENNIS M. BARRY, AICP Interim Community Devel ent Director O Att. June 10, 1997 Memorandum from County Counsel cc: Members of the Board of Supervisors Clerk of the Board V. Alexeeff, GMEDA Director Mitch Avalon Heather Ballenger, Public Works Dept. County Counsel -Diana Silver c:\wpdoc\reliez.ttr RD\ -2- COUNTY COUNSEL'S OFF/CE CONTRA COSTA COUNTY JU; j p� MARTINEZ, CALIFORNIA 4. 07 0�-VELC;'f Date: June 10, 1997 'ENT DEPT To: Harvey Bragdon, Director Community Development Department Attn: Bob Drake From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy Co un el Re: Park dedication fees: Government Code §66477 QUESTION: You have asked whether a developer may be required to pay in-lieu park dedication fees when payment of these fees was not made an express condition of project approval. You have also asked whether in lieu park dedication fees must be paid when an applicant has received notice in the form of an advisory note attached to the conditions of approval advising that county ordinance requires payment of such fees but the fee requirement was not made an express condition of approval for the project. SUMMARY: We have reviewed the applicable law (Gov. Code §66477, the "Quimby Act") and-ordinance (C.C.C. Ord. Code §920-2.002 et seq.) and the materials submitted with your request, including the March 25, 1997 letter from the developer's attorney and the conditions of approval for the vesting tentative map for subdivision #7151. We conclude that although it may be better practice to inform the applicant that these or other fees may be payable, e.g., in "Advisory Notes" appended to the conditions of approval, fees mandated by ordinance are owed by the developer even though such notice was not included and the fee requirement was not made an express condition of approval for the project.. We further conclude, based upon the information furnished, that the amount of these fees will be determined by the current fee schedule because the rights conferred by the vesting tentative map have expired (Gov. Code §66452.6(g)). DISCUSSION: I. IN-LIEU PARK FEE IS DUE The developer, Davidon, through its attorney, contends that because the conditions of approval for the rezoning, final development plan and vesting tentative map for subdivision 7151 do not expressly require the developer to pay a parkland dedication fee, Davidon is not legally required to pay the fee (March 25, 1997, letter from Geoffrey Robinson to Robert Drake). Although it may be better practice to advise the applicant that fees other than those expressly stated in the conditions of approval may be due (e.g. in the advisory notes to the conditions of approval), the parkland or fee dedication requirement probably still is enforceable even without such advice. Such Bob Drake 2 Community Development June 10, 1997 requirements are mandated by county ordinance adopted pursuant to the provisions of the Quimby Act (Gov. Code, §66477; see C.C.C. Ord. Code Division 920 of Title 9 (Subdivisions)). Davidon contends that because both the Quimby Act and the County's park dedication ordinance refer to the park land dedication or in-lieu fee requirement as a condition to the approval of the map, development plan, etc, the dedication requirement must be included in the express conditions of approval for the project to be enforceable. This reasoning ignores the county ordinance which was adopted pursuant to the Quimby Act. The in-lieu park dedication fee is not an ad hoc fee imposed by the Board acting in its adjudicatory capacity to impose discretionary conditions of approval on a particular project. We note that although respected treatises and leading cases on this type of fees refer to ordinance requirements, none states that any or all such exactions imposed by the Board of Supervisors in its legislative capacity must be recited again in each set of conditions for each project (see CEB Subdivision Map Act Practice, Curtin, 1987 and 1997 Supp.; Associated Home Builders, Inc. v. City of Walnut Creek (1971).4 Cal. 3d 633). In fact, in Associated Home Builders, the case which challenged the constitutionality of the parkland/fee dedication statute, the court held that even where the city had failed to include specific standards for determining the amount of land or fee in the parkland/fee dedication ordinance, the omission was not fatal to enforcement because such standards were provided by a resolution which the court presumed to be valid (Id. at p.648). In Contra Costa County, all of the standards, procedures and precise amount of the fee are set forth in a codified ordinance available to the public like any other codified and published law or regulation (see C.C.C. Ord. Code Division 920, generally; §920.-6.204: amount of in-lieu fee). As a general rule, it is not necessary to recite all the laws and regulations, including ordinances, which may apply to a particular project in order for them to be enforceable. Although it may be convenient for the applicant to have actual notice of all applicable fees at the time of project approval, e.g., in advisory notes to the conditions, such notice is not expressly required by the Quimby Act or county ordinance. Nor is there any provision for waiver.of such in-lieu fees, which are required when park land has not been dedicated (see Gov. Code §66477; C.C.C. Ord. Code Division 920). II. AMOUNT OF FEE You have advised us of the following time sequence: the project application was accepted as complete on May 30, 1989; three final maps for the three phases of development were recorded on August 18, 1993, June 7, 1994, and October 10, 1994. Although the project's "vested rights" include the right to be subject to the fees and other ordinances in effect on the date the application for the vesting tentative map was deemed complete, May 30, 1989 (Gov. Code §§66474.2, 66498.1), these rights expire a minimum of one year and a Bob Drake 3 Community Development June 10, 1997 maximum of two years after each final map is recorded, depending on the provisions of the local ordinance (Gov. Code §66452.6(g)).` As the County Ordinance Code does not specify an expiration date for the rights conferred by a vesting tentative map (other than the general expiration provisions for tentative maps 36 months after approval: C.C.C. Ord. Code §94-2.610), we have applied the two-year statutory maximum. This time period is automatically extended under certain circumstances for processing applications for a grading permit, or for design or architectural review; in addition, before the time has expired, the subdivider may request and be granted a one-year extension by the advisory agency (Gov. Code §66452.6(g)). You have informed us that no extension was applied for and you have not indicated that any circumstances existed which would have automatically extended the duration of the vested rights under the statute (e.g., grading permit application). Accordingly, the rights conferred by the vesting tentative map, including the 1989 fee schedules, expired two years after the last final map was filed, approximately seven months ago. Therefore, we conclude in-lieu park land dedication fees are due at the current rate of$2,000.00 per dwelling unit as established by a 1990 amendment to the ordinance (see C.C.C. Ord. Code §920-6.204). cc: Dennis Barry DJS/ds aAdavidon.mem 1Davidon contends that the vesting tentative map, due to expire August 11, 1994, has been extended by automatic statutory extensions to at least the year 2000. As you have informed us that no further final maps remain to be filed, we find the rights conferred by the vesting tentatative map have expired in accordance with this section. M COU T • Hhim MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP September 5, 1997 grobinson@mdbe.com VIA FACSEMME - Clerk of the Board of Supervisors c/o Ms. Diana I Silver Deputy County Counsel Contra Costa County 651 Pine Street, 9th Floor P. O. Box 69 Martinez, CA 94553 Notice of Appeal Davidon Homes, Reliez Valley Highlands Quimby Act Fees Our File No. 71599-134 Dear Ms. Silver: This letter is pursuant to your message to me, in which you indicated that Mr. Barry's decision concerning the park fees, as reflected in his August 7, 1997, letter is an "official action"that may be appealed to the Board of Supervisors. I do not believe an appeal is necessary, since Davidon's original claim and protest letter was addressed directly to the Board of Supervisors. Nonetheless,without acknowledging the existence of an appeal requirement, I am filing this appeal on behalf of Davidon Homes. I have directed it to your attention because your memo responded to my previous letter to the Board and.because you will probably be the one to present this matter to the Board. I am also transmitting a copy directly to the Clerk at the Clerk's Office. Davidon's verified statement of the facts, grounds for appeal, Davidon's special interest in this matter and Davidon's injury are stated in the petition and complaint we filed on August 19, 1997. A copy is enclosed and incorporated herein by this reference. A summary of the appeal follows. A T T O R N E Y S A T L A R' 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596-1270 Los Angeles Washington, D.C. Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchen.com Walnut Creek Ms. Diana I Silver September 5, 1997 Page 2 STATEMENT OF FACTS AND STATEMENT OF DAVIDON'S SPECIAL INTEREST In August 1992, the Contra Costa County Board of Supervisors approved a Vesting Tentative Map for Subdivision 7151,the Reliez Valley Highlands subdivision. The property is located in unincorporated Contra Costa County, west of Reliez Valley Road at the westerly extension of Hidden Pond Road. The property is bounded by Briones Park, the Hidden Pond Hills Subdivision,the Oakmont Memorial Park Cemetery and the Queen of Heaven Cemetery. Davidon Homes is the owner and developer of this 81-single family home project. The County's approval of Vesting Tentative Map 7151 ("VTM 7151") required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is predominately located along a natural oak woodland ridgeline at the site. The approval further provided that"[a]ccess into open space areas [shall be] maintained for public or private use," and that"[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement standards." Davidon was required to grant an easement to the public for continued emergency access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian purposes to the East Bay Regional Park District, and to construct that trail as specified by the Park District. Development rights for three parcels were required to be deeded to the County as a scenic easement. The County's approval of VTM 7151 was conditioned upon payment of numerous fees, including payment of off-site traffic mitigation fees, fees to offset firefighting costs, fees for police staffing, and fees required by the Martinez Unified School District. The County's approval of VTM 7151 was also conditioned on compliance with numerous County Ordinances and policies, including County grading and erosion control ordinances, the ordinances specific to the R-15 zoning district,.the County policy on water conservation requirements for new development, Subdivision Ordinance section 94-4.420,the Transportation Systems Management(TSM) Ordinance,the County Child Care Ordinance, and section 92-2.006 of the County Ordinance Code. Despite all these specific references to fees and compliance with County ordinances, the County did not require payment of fees or dedication of land for park or recreational purposes in any condition of approval for VTM 7151. Likewise, the County did not reference compliance with any County ordinances relating to park fees or land dedication in any condition of approval for VTM 7151. Ms. Diana J. Silver September 5, 1997 Page 3 Prior to the expiration of VTM 7151, Davidon obtained final subdivision map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 days to process complete applications for grading permits, design review and architectural review related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for building permits under each final map before the time periods specified in Government Code section 66452.6(g) expired. Some of these permits have not yet expired. Included among the permits that have not yet expired are permits that serve as master building approvals for the models for the subdivision. Davidon has mistakenly paid park fees for homes in the Reliez Valley Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has not received building permits, and the County staff has advised Davidon that it will require payment of a $2,000-per-unit park fee. THE QUIMBY ACT Government Code section 66477, commonly known as the "Quimby Act" provides that a County may,by ordinance,require dedication of a certain amount of land or payment of a certain amount of fees for park or recreational purposes as a condition to the approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151, the County had enacted a local ordinance under the Quimby Act,which provided that fees in the amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map approval,but did not place such a condition on VTM 7151. After approval of VTM 7151, the County apparently amended its local ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. County staff recently advised Davidon that the County contends that Davidon must pay Quimby Act fees in the amount of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained under VTM 7151 have expired. GROUNDS FOR APPEAL AND DAVIDON'S INJURY The County has a present, ministerial duty to provide refunds for all fees mistakenly paid by Davidon to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building permits and certificates of occupancy for all remaining lots in that subdivision without payment of unlawful or unconstitutional fees for park or recreation purposes. The County is refusing to do so despite its ability to do so. Its refusal is unlawful for the following reasons: Ms. Diana I Silver September 5, 1997 Page 4 1. The County purports to impose fees on Davidon for park and recreation purposes under the Quimby Act, Government Code section 66477. However, the Quimby Act allows fees for park or recreation purposes only if they are imposed"as a condition to the approval of tentative map or parcel map." Because the County did not require payment of Quimby Act fees "as a condition of approval" of VTM 7151, the fees are not authorized under the Quimby Act. The County's Quimby Act ordinance clearly contemplates and requires a decision by staff prior to approval of a tentative map regarding whether to require a dedication of land within the development,payment of an in-lieu fee, or a combination of both as a condition to the approval of the tentative map. (County Code § 920- 12.004). No such requirement was attached as a condition of approval of Davidon's tentative map. and the fees are therefore not authorized under either the Quimby Act or the County's own ordinance. 2. The attempt by the County to require fees for park or recreation purposes for the Reliez Valley Highlands property, and to do so not as a condition of development approval, is an attempt at an unconstitutional taking of Davidon's property without just compensation, treats Davidon differently from other property owners who are similarly situated in the relevant respects, and is confiscatory. Moreover, the County's attempt to require such fees does not satisfy the criteria for a lawful special tax. 3. Government Code section 65961 states that during the five-year period following recordation of a final map for a subdivision, a county shall not condition issuance of a building permit on any conditions that the county could have lawfully imposed as a,condition to a previously approved tentative map. Likewise, it prohibits a county from refusing to issue a building permit on these grounds. This statute is commonly called the "one bite of the apple rule,"because it gives local agencies only one opportunity, at tentative map approval,to impose conditions of approval. After tentative map approval, the County is precluded from imposing new or additional conditions that could have lawfully been imposed earlier. The County could have lawfully imposed a condition on VTM 7151 requiring payment of a fee for park or recreation purposes. Because the County did not do so, it cannot impose such a condition as a condition of issuance of a building permit or certificate of occupancy. Moreover, even if the County had imposed a condition requiring payment of park fees at Ms; Diana J. Silver September 5, 1997 Page 5 the rate of$1,100 per dwelling unit(which the County contends it did), it could not now require payment of park fees at the rate of$2,000 per unit. 4. Accordingly, with respect to the Reliez Valley Highland subdivision, Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes,and to issuance of building permits and certificates of occupancy for all remaining lots in that subdivision without payment of fees for park or recreation purposes. Alternatively, Davidon is entitled to a refund of excess park fees paid and issuance of building permits and certificates of occupancy with imposition of park fees that do not exceed $1,100 per unit. 5. When the County approved VTM 7151, it granted vested rights to Davidon to develop the Reliez Valley Highlands project in substantial compliance with the ordinances,policies and standards in effect at the date the map application was complete. Davidon's vested rights under VTM 7151 have been extended by the pendency of building permits for this subdivision, by the County's delays in acting upon applications for grading permits and for design and architectural review, and by virtue of the fact that VTM 7151 is still valid. The Quimby Act ordinance the County had in effect at the time of approval of VTM 7151 provided for fees for park and recreation purposes in the amount of$1,100 per dwelling unit. (County Code § 920- 6.204). Therefore, even if the County had lawfully required, as a condition of tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation purposes, those fees would have been limited to $1,100 per dwelling unit. Accordingly, as an alternative to other remedies sought in this appeal, Davidon is entitled to refunds for all fees in excess of $1,100 per dwelling unit that Davidon has mistakenly paid to date for park purposes, and to issuance of building permits and certificates of occupancy for all remaining lots in that subdivision without payment of fees for park or recreation purposes in excess of$1,100 per dwelling unit. Very truly yours, Geoffrey . Robinson cc: County Clerk (via telecopier; w/encl.) -MIC, C U T • • • MCCUTCHEN,DOVLE, BROWN Bt ENERSEN,LLP ' RECEIVED OCT - 3W7 CLERK BOARD OF SUPERVISORS ENCLOSURE MEM CONTRA COSTA CO. FEDERAL EXPRESS Date: October 2, 1997 Direct: 510-975-5388 mrodriguez@mdbe.com To: Ann Cervelli Deputy Clerk of the Board Contra Costa County Board of Supervisors 651 Pine Street, #106 Martinez, CA 94553 From: Michelle Rodriguez Secretary to Geoffrey L. Robinson Re: Davidon Homes v. County of Contra Costa, et al. Our File No. 71599-134 Enclosed: Per your request, enclosed is a copy of the Petition for Writ of Mandamus and Complaint for Damages and Declaratory Relief along with the original Verification signed by Dennis Razzari. ATTORNEYS AT LAW 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596 Los Angeles Washington, D.C. Tel. (510) 931.8000 Fax (510) 975.5390 San Jose Taipei http://www.mccutchen.com Walnut Creek 1 McCUTCHEN,DOYLE, BROWN&ENERSEN FF� Geoffrey L. Robinson(112997) - — 2 Marie A. Cooper(114728) Post Office Box V 14ti1 f." 19 p 3= 5 u 3 Walnut Creek,California 94596-1270 Telephone: (510) 937-8000 T''.PHFh!' '"' ''.�rz j,' .7;.717 4 Attorneys for Petitioner and Plaintiff, 5 Davidon Homes 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF CONTRA COSTA 9 10 DAVIDON HOMES, No. C 9, 5 5 °a 11 Petitioner and Plaintiff, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DAMAGES AND 12 V. DECLARATORY RELIEF 13 COUNTY OF CONTRA COSTA; and SUMMONS ISSUED 14 DOES 1 through 25, inclusive, 15 Respondents and Defendants. PER LOCAL RULE 5 16 THIS CASE IS IGNED TO DEPS 17 18 19 20 21 22 23 24 25 26 27 28 PETITION AND COMPLAINT CA972270.023/71599-134 I Petitioner and plaintiff Davidon Homes("Davidon")by this verified petition and 2 complaint("petition") alleges: 3 INTRODUCTION 4 1. Davidon is the owner of the Reliez Valley Highlands project, an 81-home 5 subdivision in the Lafayette area of Contra Costa County, adjacent to Briones Park. The site 6 includes an area of natural oak woodland ridgeline that is preserved as open space. A total of 7 approximately 33 acres of this 70-acre site are preserved as open space, some with public access. 8 Development rights for several lots in the project are deeded to the County for scenic easements. 9 The project also includes a hiking trail dedicated to the East Bay Regional Park District and 10 constructed as specified by the Park District. Accordingly,when the County approved a 11 subdivision map for this project, it imposed numerous conditions related to various fees,but it 12 did not require any fees for parks. Now,the County is taking the position that Davidon owes not 13 only the$1,100 per-unit park fee the County could have required at the time of Davidon's 14 subdivision map approval,but that Davidon owes an increased fee of$2,000 per unit. The 15 Subdivision Map Act precludes imposing new conditions after tentative map approval, 16 particularly when the developer has vested rights as Davidon does here. Davidon accordingly 17 seeks a writ directing the County to issue building permits and certificates of occupancy without 18 requiring payment of any park fees, and to refund all park fees paid to date. 19 PARTIES 20 2. Respondent and Defendant County of Contra Costa("County") is a 21 political subdivision of the State of California organized under State law. The County is the 22 entity charged with issuing building permits for construction in the incorporated areas of the 23 County, including the Reliez Valley Highlands subdivision. 24 3. The true names and capacities of Respondents and Defendants Does 1 25 through 25.are unknown to Davidon,who will amend this petition to insert their true names and 26 capacities when they have been ascertained. Davidon is informed and believes and on that basis 27 alleges that at all times relevant to this action, each of the Respondents and Defendants, 28 including Does 1 through 25,was the agent or employee of each of the remaining Respondents 2 CA972270.023 PETITION AND COMPLAINT 1 and Defendants, and,while acting within the scope and course of such agency or employment, 2 took part in the acts and omissions alleged in this petition. Each reference to the County, 3 Respondent(s) or Defendant(s)refers to Respondent and Defendant County of Contra Costa and 4 Respondents and Defendants Does 1 through 25. 5 MAP APPROVAL AND SUBSEQUENT EVENTS 6 4. In August 1992,the Contra Costa County Board of Supervisors approved 7 a Vesting Tentative Map for Subdivision 7151,the Reliez Valley Highlands subdivision. The 8 property is located in unincorporated Contra Costa County,west of Rehez Valley Road at the 9 westerly extension of Hidden Pond Road, in the Lafayette area. The property is bounded by 10 Briones Park,the Hidden Pond Hills Subdivision,the Oakmont Memorial Park Cemetery and the 11 Queen of Heaven Cemetery. 12 5. The County's approval of Vesting Tentative Map 7151 ("VTM 7151") 13 required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is 14 predominately located along a natural oak woodland ridgeline at the site. The approval further 15 provided that"[a]ccess into open space areas [shall be] maintained for public or private use,"and 16 that"[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement 17 standards." Davi don was required to grant an easement to the public for continued emergency 18 access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian 19 purposes to the East Bay Regional Park District, and to construct that trail as specified by the 20 Park District. Development rights for three parcels were required to be deeded to the County as a 21 scenic easement. 22 6. The County's approval of VTM 7151 was conditioned upon payment of 23 numerous fees, including payment of off-site traffic mitigation fees, fees to offset firefighting 24 costs, fees for police staffing, and fees required by the Martinez Unified School District. The 25 County's approval of VTM 7151 was also conditioned on compliance with numerous County 26 Ordinances and policies, including County grading and erosion control ordinances,the 27 ordinances specific to the R-15 zoning district, the County policy on water conservation 28 requirements for new development, Subdivision Ordinance section 94-4.420, the Transportation 3 CA972270.023 PETITION AND COMPLAINT I Systems Management(TSM) Ordinance, the County Child Care Ordinance, and section 92-2.006 2 of the County Ordinance Code. 3 7. Despite all these specific references to fees and compliance with County 4 ordinances, the County did not reference park fees in any condition of approval for VTM 7151. 5 Likewise,the County did not reference compliance with any County ordinances relating to park 6 fees in any condition of approval for VTM 7151. 7 8. Prior to the expiration of VTM 7151,Davidon obtained final subdivision 8 map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained 9 Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 10 days to process complete applications for grading permits, design review and architectural review 11 related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for 12 building permits under each final map,before the time periods specified in Government Code 13 section 66452.6(g) expired. Some of these permits have not yet expired. Included among the 14 permits that have not yet expired are permits that serve as master building approvals for the 15 models for the subdivision. 16 9. Davidon has mistakenly paid park fees for homes in the Reliez Valley 17 Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has 18 not received building permits,and the County has advised Davidon that it will require payment 19 of a$2,000-per-unit park fee. Davidon has exhausted all administrative remedies that it is 20 required to exhaust. Davidon has submitted letters to the County explaining the bases for its 21 objections. Davidon has no plain, speedy and adequate remedy in the ordinary course of law, 22 other than the relief sought in this petition. 23 THE COUNTY'S QUIMBY ACT CONTENTIONS 24 10. Government Code section 66477, commonly known as the"Quimby Act" 25 provides that a County may,by ordinance,require dedication of a certain amount of land or 26 payment of a certain amount of fees for park or recreational purposes as a condition to the 27 approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151,the 28 County had enacted a local ordinance under the Quimby Act,which provided that fees in the 4 cA972270.023 PETITION AND COMPLAINT I amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map 2 approval,but did not place such a condition on VTM 7151. After approval of VTM 7151, and 3 after approval of Final Maps 7151, 7820 and 7821,the County apparently amended its local 4 ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. The County 5 recently advised Davidon that it contends that Davidon must pay Quimby Act fees in the amount 6 of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained 7 under VTM 7151 have expired. 8 11. In engaging in the acts and omissions described in this petition,the 9 County has abused its discretion and failed to proceed in the manner required by law. The 10 County has a present,ministerial duty to provide refunds for all fees mistakenly paid by Davidon 11 to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building 12 permits and certificates of occupancy for all remaining lots in that subdivision without payment 13 of unlawful or unconstitutional fees for park or recreation purposes. The County is refusing to 14 do so despite its ability to do so. 15 FIRST CAUSE OF ACTION 16 (Violation of Quimby Act) 17 (Against all Respondents and Defendants) 18 12. Davidon incorporates by reference the allegations of all preceding 19 paragraphs as though set forth in full at this place. 20 13. The County purports to impose fees on Davidon for park and recreation 21 purposes under the Quimby Act, Government Code section 66477. However,the Quimby Act 22 allows fees for park or recreation purposes only if they are imposed"as a condition to the 23 approval of tentative map or parcel map." Because the County did not require payment of 24 Quimby Act fees "as a condition of approval"of VTM 7151,the fees are not authorized under 25 the Quimby Act. 26 14. Accordingly,with respect to the Reliez Valley Highland subdivision, 27 Davidon is entitled to refunds for all fees mistakenly paid to date for park purposes, and to 28 5 CA972270.023 PETITION AND COMPLAINT 1 issuance of building permits and certificates of occupancy for all remaining lots in that 2 subdivision without payment of fees for park or recreation purposes. 3 WHEREFORE,Davidon prays judgment as set forth below. 4 SECOND CAUSE OF ACTION 5 (Taking of Property and Related Violations) 6 (Against all Respondents and Defendants) 7 15. Davidon incorporates by reference the allegations of all preceding 8 paragraphs as though set forth in full at this place. 9. 16. . The attempt by the County to require fees for park or recreation purposes 10 for the Reliez Valley Highlands property,and to do so not as a condition of development 11 approval, is an attempt at an unconstitutional taking of Davidon's property without just 12 compensation,treats Davidon differently from other property owners who are similarly situated 13 in the relevant respects, and is confiscatory. Moreover,the County's attempt to require such fees 14 does not satisfy the criteria for a lawful tax. 15 17. Davidon is entitled to refunds or credits for all fees mistakenly paid to date 16 for the Rehez Valley Highlands subdivision for park purposes,and to issuance of building 17 permits and certificates of occupancy for all remaining lots in that subdivision without payment 18 of fees for park or recreation purposes. 19 WHEREFORE,Davidon prays judgment as set forth below. 20 THIRD CAUSE OF ACTION 21 (Violation of Govt. Code § 65961) 22 (Against all Respondents and Defendants) 23 18. Davidon incorporates by reference the allegations of all preceding 24 paragraphs as though set forth in full at this place. 25 19. Government Code section 65961 states that during the five-year period 26 following recordation of a final map for a subdivision, a county shall not condition issuance of a 27 building permit on any conditions that the county could have lawfully imposed as a condition to 28 a previously approved tentative map. Likewise, it prohibits a county from refusing to issue a 6 CA972270.023 PETITION AND COMPLAINT 1 building permit on these grounds. This statute is commonly called the"one bite of the apple 2 rule,"because it gives local agencies only one opportunity, at tentative map approval,to impose 3 conditions of approval. After tentative map approval,the County is precluded from imposing 4 new or additional conditions that could have lawfully been imposed earlier. 5 20. The County could have lawfully imposed a condition on VTM 7151 6 requiring payment of a fee for park or recreation purposes. Because the County did not do so, it 7 cannot impose such a condition as a condition of issuance of a building permit or certificate of 8 occupancy. Moreover, even if the County had imposed a condition requiring payment of park 9 fees at the rate of$1,100 per dwelling unit(which the County contends it did), it could not now 10 require payment of park fees at the rate of$2,000 per unit. 11 21. Accordingly,with respect to the Reliez Valley Highland subdivision, 12 Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes, 13 and to issuance of building permits and certificates of occupancy for all remaining lots in that 14 subdivision without payment of fees for park or recreation purposes. Alternatively,Davidon is 15 entitled to a refund of excess park fees paid and issuance of building permits and certificates of 16 occupancy with imposition of park fees that do not exceed$1,100 per unit. 17 WHEREFORE,Davidon prays judgment as set forth below. 18 FOURTH CAUSE OF ACTION 19 (Violation of Vested Rights) 20 (Against all Respondents and Defendants) 21 22. Davidon incorporates by reference the allegations of all preceding 22 paragraphs as though set forth in full at this place. 23 23. When the County approved VTM 7151, it granted vested rights to 24 Davidon to develop the Reliez Valley Highlands project in substantial compliance with the 25 ordinances,policies and standards in effect at the date the map application was complete. The 26 Quimby Act ordinance the County had in effect at that time provided for fees for park and 27 recreation purposes in the amount of$1,100 per dwelling unit. 28 7 CA972270.023 PETITION AND COMPLAINT 1 24. Therefore, even if the County had lawfully required, as a condition of 2 tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation 3 purposes,those fees would have been limited to $1,100 per dwelling unit. 4 25. Accordingly,with respect to the Reliez Valley Highland subdivision, and 5 as an alternative to other remedies sought in this petition,Davidon is entitled to refunds for all 6 fees in excess of$1,100 per dwelling unit that Davidon has mistakenly paid to date for park 7 purposes, and to issuance of building permits and certificates of occupancy for all remaining lots 8 in that subdivision without payment of fees for park or recreation purposes in excess of$1,100 9 per dwelling unit. 10 WHEREFORE,Davidon prays judgment as set forth below. 11 FIFTH CAUSE OF ACTION 12 (Declaratory Relief) 13 (Against all Respondents and Defendants) 14 26. Davidon incorporates by reference the allegations of all preceding 15 paragraphs as though set forth in full at this place. 16 27. An actual controversy has arisen and now exists between the parties to this 17 action. Davidon makes the contentions set forth above. Davidon is informed and believes and 18 thereon alleges that the County denies them and contends that Davidon was lawfully required to 19 pay Quimby Act fees in the amount of$1,100 per dwelling unit previously, and that Davidon is 20 now required to pay Quimby Act fees in the amount'of$2,000 per dwelling unit. A judicial 21 declaration is necessary and appropriate at this time so that Davidon and the County may 22 ascertain their rights and duties with respect to the Reliez Valley Highlands subdivision, and 23 avoid a multiplicity of actions. 24 WHEREFORE,Davidon prays relief as follows: 25 28. For a peremptory writ of mandate or other appropriate order directing the 26 County to: 27 28 8 CA972270.023 PETITION AND COMPLAINT 1 (a) Refund all park fees Davidon has paid for the Reliez Valley 2 Highlands subdivision, and issue building permits and certificates of occupancy without 3 requiring payment of park fees; or, alternatively, 4 (b) Refund all park fees Davidon has paid for the Reliez Valley 5 Highlands subdivision that exceed$1,100 per dwelling unit, and issue building permits and 6 certificates of occupancy without requiring payment of park fees that exceed$1,100 per dwelling 7 unit; 8 29. For an alternative writ of mandate directing the County to do the things set 9 forth in the immediately preceding paragraph or show cause before this Court why it should not 10 be required to do so; 11 30. For judgment in the amount of fees to be refunded to Davidon; 12 31. For a judicial declaration of the matters specified in this petition; 13 32. For Davidon's costs of suit; and 14 33. For such other legal or equitable relief as the court deems proper. 15 DATED: August 19, 1997. 16 McCUTCHEN,DOYLE,BROWN&ENERSEN 17 18 19 By: 20 Ge4iVey L.Robinson Attorneys for Petitioner and Plaintiff 21 Davidon Homes 22 23 24 25 26 27 28 9 CA972270.023 PETITION AND COMPLAINT 1 VERIFICATION 2 3 I, the undersigned, declare: 4 I am an officer of Davidon Homes, a California corporation, and am authorized to 5 execute this verification on its behalf. I have read the foregoing petition and complaint and know 6 its contents. I am informed and believe that the matters stated therein are true and, on that 7 ground, allege that they are true. 8 I declare under penalty of perjury that the foregoing is true and correct. 9 Executed this day of August, 1997, at Walnut Creek, California. 10 11 t 12 Dennis Razzari 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to CA972270.023 PETITION AND COMPLAINT DWIDONHom== October 29, 1997 Board of Supervisors of Contra Costa County C/O Robert Drake Contra Costa Community Development Department 651 Pine Street, 2nd Floor,North Wing Martinez, CA 94553-0095 RF:: Rcliez Valley Highlands Tracts 7151,7820 &7821 Qaimby Act fees Dear Mr-Drake and Members of The Board: The County leas advised Davidon Homes that our appeal regarcbng the Park Dedication Fees for Reliez Valley Highlands Tracts 7151, 7820 & 7821 has been placed on the calendar for the Beard of Supervisors hearing on Tuesday, November 4, 1997. Due to the recent negotiation of a revised. fee amount we request the County continue the appeal hearing until December 2, 1997. This will allow for anAgreement to be reviewed and singed by both the County and Davidon Homes. Your cooperation regarding this extension is appreciated. Si ilcemly, DAVIDON HOMES Dennis I Razzari Vice)President Site Development D.1R:k*c cc: Geoffrey Robinson L':A; NI 1. i:i?i .__K, ;P...'.i C i)IN,A BOARD OF SUPERVISORS , CONTRA COSTA COUNTY , CALIFORNIA AFFIDAVIT OF MAILING In the Matter of ) Administrative Appeal by Davidon Homes ) From the Decision of the Community Development Director on Quimby Act Fees Relative to Reliez Valley Highlands, ) Lafayette area. ) ) I declare under penalty of perjury that I am now, and at all times herein mentioned have been , a citizen of the United States , over age 18; and that today I deposited in the United States Postal Service in Martinez , California , postage fully prepaid , a certified copy of Notice of Hearing to the following : Mr. Geoffrey L. Robinson McCutchen, Doyle, Brown & Enersen, LLP 1331 North California Boulevard P.O. Box V Walnut Creek, CA 94596-1270 I declare under penalty of perjury that the foregoing is true and correct. Dated October 24, 1997 at Martinez , California . a Ann Cervelli, UCPULy CTerl 3 The Board of SupervisorsContra Phil Batchelor Clerk of the Board Costa County Administration Building and County Administrator 651 Pine Street, Room 106 (510)335-1900 Martinez,California 94553-1293 County Jim Rogers,1st District Gayle B.Uilkema,2nd District s i Donna Gerber,3rd District >: Mark DeSaulnier,4th District Joe Canclamilla,5th District n. ♦ ST'r COUNT October 24, 1997 Mr. Geoffrey L. Robinson McCutchen, Doyle, Brown & Enersen, LLP 1331 N. California Boulevard P.O. Box V Walnut Creek, CA 94596-1270 RE: Appeal of Davidon Homes from the decision of the Director of Community Development on Quimby Act Fees relative to the Reliez Valley Highlands, Lafayette area. Dear Mr. Robinson: Pursuant to Section 14-4 . 006 of the County Ordinance Code, notice is given that Tuesday, November 4, 1997, at 2 P.M. , at 651 Pine Street, Room 107, Martinez, California, has been set as the time and place for hearing by the Board of Supervisors of your appeal filed on behalf of Davidon Homes from the decision of the Director of Community Development on Quimby Act Fees relative to the Reliez Valley Highlands, Lafayette area. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County, at or prior to, the public hearing. Very truly yours, PHIL BATCHELOR, Clerk of the Board of Supervisors and County Ad inistr or By Ann Cerve li, Deputy Clerk CC : County Counsel County Administrator Community Development Director COMMUNITY DEVELOPMENT DEPARTMENT CONTRA COSTA COUNTY DATE: October 21, 1997 TO: Ann Cervelli, Deputy Clerk Clerk of the Board of Supervisors FROM: Dennis M. Barry, AICP, Interim Community, elopment Director By: Robert H. Drake, Senior Planner RE: Administrative Appeal of the Director of Community Development's Decision on Quimby Act Fees by Davidon Homes, Reliez Valley Highlands This is in response to your memorandum of October 3, 1997. We see no reason why the administrative appeal cannot be heard on November 4, 1997. Please schedule the appeal on that date. I intend to provide you with a staff report on the appeal by October 29, 1997. Should you have any questions, please call me at X5-1214. cc: Dennis Barry Mitch Avalon County Counsel Office Silvano Marchesi, Asst. County Counsel Diana Silver, Deputy County Counsel c:\wpdoc\rvh.mem RD\ RECEIVED OCT 2 21997 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. 1 V ' CONTRA COSTA COUNTY Clerk of the Board Inter-Office Memo TO: Dennis Barry, Director Community Development Department DATE :October 3 , 1997 FROM: Clerk of the Board of Supervisors Ann Cervelli, Deputy Clerk at) SUBJECT: Administrative Appeal of the Director of Community Development ' s Decision on Quimby Act Fees by Davidon Homes, Reliez Valley Highlands We are in receipt of an administrative appeal filed by Davidon Homes (represented by Geoffrey L. Robinson, McCutcheon, Doyle, Brown and Enersen) from the decision of Dennis Barry, Community Development Director, in his August 7, 1997, letter relative to Quimby Act Fees and Reliez Valley Highlands . The faxed copy of the appeal first came to this office via transmittal from County Counsel . . I am attaching a copy of the fax and of the original that I requested from Mr. Robinson at a later date after I spoke with Sylvano Marchesi, County Counsel ' s office . If this appeal is not timely or should not be heard by the Board of Supervisors for any other reason, please notify this office by October 10, 1997 . If the appeal is to be heard by the Board of Supervisors, it has tentatively been scheduled for November 4, 1997, at 2 P.M. in the Board Chambers . Material for Board consideration should reach this office by October 29, 1997 . ac attachment cc : Sylvano Marchesi, County Counsel Diana Silver, County Counsel MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP RECEIVED SEP 1 91997 CLERK BOARD OF SUPERVISORS grobinson@mdbe.com September 19, 1997 CONTRA COSTA CO. HAND DELIVERY Ann Cervelli Deputy Clerk of the Board Contra Costa County Board of Supervisors 651 Pine Street, #106 Martinez, CA 94553 Notice of Appeal Davidon Homes; Reliez Valley Highlands Quimby Act Fees Our File No. 71599-134 Dear Ann: Per our conversation this morning, enclosed is the original of the appeal letter dated September 19, 1997, together with a check for $125.00. If you have any questions or need any further information, please call me. Thank you. Very truly yours, Geoffrey . Robinson Enclosure A T T 0 R N E Y S A T L A W 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596-1270 Los Angeles Washington, D.C. Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchen.com Walnut Creek An ,MIC, C U T C H LN" MCCUTCHEN,DOYLE,BROWN&ENERSEN,LLP September 5, 1997 grobinson@mdbe.com VIA FACSIMILE Clerk of the Board of Supervisors c/o Ms. Diana I Silver Deputy County Counsel Contra Costa County 651 Pine Street, 9th Floor P. O. Box 69 Martinez, CA 94553 Notice of Appeal Davidon Homes, Reliez Valley Highlands Quimby Act Fees Our File No. 71599-134 Dear Ms. Silver: This letter is pursuant to your message to me, in which you indicated that Mr. Barry's decision concerning the park fees, as reflected in his August 7, 1997, letter is an "official action"that may be appealed to the Board of Supervisors. I do not believe an appeal is necessary, since Davidon's original claim and protest letter was addressed directly to the Board of Supervisors. Nonetheless, without acknowledging the existence of an appeal requirement, I am filing this appeal on behalf of Davidon Homes. I have directed it to your attention because your memo responded to my previous letter to the Board and because you will probably be the one to present this matter to the Board. I am also transmitting a copy directly to the Clerk at the Clerk's Office. Davidon's verified statement of the facts, grounds for appeal, Davidon's special interest in this matter and Davidon's injury are stated in the petition and complaint we filed on August 19, 1997. A copy is enclosed and incorporated herein by this reference. A summary of the appeal follows. ATTORNEYS A T L A W 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596-1270 Los Angeles Washington, D.C. Tel. (510) 937-8000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchen.com Walnut Creek 4FMs:Diana J. Silver September 5, 1997 Page 2 STATEMENT OF FACTS AND STATEMENT OF DAVIDON'S SPECIAL INTEREST In August 1992, the Contra Costa County Board of Supervisors approved a Vesting Tentative Map for Subdivision 7151, the Reliez Valley Highlands subdivision. The property is located in unincorporated Contra Costa County, west of Reliez Valley Road at the westerly extension of Hidden Pond Road. The property is bounded by Briones Park, the Hidden Pond Hills Subdivision, the Oakmont Memorial Park Cemetery and the Queen of Heaven Cemetery. Davidon Homes is the owner and developer of this 81-single family home project. The County's approval of Vesting Tentative Map 7151 ("VTM 7151") required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is predominately located along a natural oak woodland ridgeline at the site. The approval further provided that "[a]ccess into open space areas [shall be] maintained for public or private use," and that"[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement standards." Davidon was required to grant an easement to the public for continued emergency access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian purposes to the East Bay Regional Park District, and to construct that trail as specified by the Park District. Development rights for three parcels were required to be deeded to the County as a scenic easement. The County's approval of VTM 7151 was conditioned upon payment of . numerous fees, including payment of off-site traffic mitigation fees, fees to offset firefighting costs, fees for police staffing, and fees required by the Martinez Unified School District. The County's approval of VTM 7151 was also conditioned on compliance with numerous'County Ordinances and policies, including County grading and erosion control ordinances, the ordinances specific to the R-15 zoning district, the County policy on water conservation requirements for new development, Subdivision Ordinance section 94-4.420, the Transportation Systems Management(TSM) Ordinance, the County Child Care Ordinance; and section 92-2.006 of the County Ordinance Code. Despite all these specific references to fees and compliance with County ordinances, the County did not require payment of fees or dedication of land for park or recreational purposes in any condition of approval for VTM 7151. Likewise, the County did not reference compliance with any County or relating to park fees or land dedication in any condition of approval for VTM 7151. Ms:Diana J. Silver September 5, 1997 Page 3 Prior to the expiration of VTM 7151, Davidon obtained final subdivision map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 days to process complete applications for grading permits, design review and architectural review related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for building permits under each final map before the time periods specified in Government Code section 66452.6(g) expired. Some of these permits have not yet expired. Included among the permits that have not yet expired are permits that serve as master building approvals for the models for the subdivision. Davidon has mistakenly paid park fees for homes in the Reliez Valley Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has not received building permits, and the County staff has advised Davidon that it will require payment of a$2,000-per-unit park fee. THE QUIMBY ACT Government Code section 66477, commonly known as the "Quimby Act" provides that a County may, by ordinance, require dedication of a certain amount of land or payment of a certain amount of fees for park or recreational purposes as a condition to the approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151, the County had enacted a local ordinance under the Quimby Act, which provided that fees in the amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map approval, but did not place such a condition on VTM 7151. After approval of VTM 7151, the County apparently amended its local ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. County staff recently advised Davidon that the County contends that Davidon must pay Quimby Act fees in the amount of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained under VTM 7151 have expired. GROUNDS FOR APPEAL AND DAVIDON'S INJURY The County has a present, ministerial duty to provide refunds for all fees mistakenly paid by Davidon to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building permits and certificates of occupancy for all remaining lots in that subdivision without payment of unlawful or unconstitutional fees for park or recreation purposes. The County is refusing to do so despite its ability to do so. Its refusal is unlawful for the following reasons: Ms:Diana I Silver September 5, 1997 Page 4 1. The County purports to impose fees on Davidon for park and recreation purposes under the Quimby Act, Government Code section 66477. However, the Quimby Act allows fees for park or recreation purposes only if they are imposed "as a condition to the approval of tentative map or parcel map." Because the County did not require payment of Quimby Act fees "as a condition of approval" of VTM 7151, the fees are not authorized under the Quimby Act. The County's Quimby Act ordinance clearly contemplates and requires a decision by staff prior to approval of a tentative map regarding whether to require a dedication of land within the development, payment of an in-lieu fee, or a combination of both as a condition to the approval of the tentative map. (County Code § 920- 12.004). No such requirement was attached as a condition of approval of Davidon's tentative map. and the fees are therefore not authorized under either the Quimby Act or the County's own ordinance. 2. The attempt by the County to require fees for park or recreation purposes for the Reliez Valley Highlands property, and to do so not as a condition of development approval, is an attempt at an unconstitutional taking of Davidon's property without just compensation, treats Davidon differently from other property owners who are similarly situated in the relevant respects, and is confiscatory. Moreover, the County's attempt to require such fees does not satisfy the criteria for a lawful special tax. 3. Government Code section 65961 states that during the five-year period following recordation of a final map for a subdivision, a county shall not condition issuance of a building permit on any conditions that the county could have lawfully imposed as a condition to a previously approved tentative map. Likewise, it prohibits a county from refusing to issue a building permit on these grounds. This statute is commonly called the "one bite of the apple rule,"because it gives local agencies only one opportunity, at tentative map approval, to impose conditions of approval. After tentative map approval, the County is precluded from imposing new or additional conditions that could have lawfully been imposed earlier. The County could have lawfully imposed a condition on VTM 7151 requiring payment of a fee for park or recreation purposes. Because the County did not do so, it cannot impose such a condition as a condition of issuance of a building permit or certificate of occupancy. Moreover, even if the County had imposed a condition requiring payment of park fees at l Ms:Diana J. Silver September 5, 1997 Page 5 the rate of$1,100 per dwelling unit (which the County contends it did), it could not now require payment of park fees at the rate of$2,000 per unit. 4. Accordingly, with respect to the Reliez Valley Highland subdivision, Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes, and to issuance of building permits and certificates of occupancy for all remaining lots in that subdivision without payment of fees for park or recreation purposes. Alternatively, Davidon is entitled to a refund of excess park fees paid and issuance of building permits and certificates of occupancy with imposition of park fees that do not exceed $1,100 per unit. 5. When the County approved VTM 7151, it granted vested rights to Davidon to develop the Reliez Valley Highlands project in substantial compliance with the ordinances, policies and standards in effect at the date the map application was complete. Davidon's vested rights under VTM 7151 have been extended by the pendency of building permits for this subdivision,by the County's delays in acting upon applications for grading permits and for design and architectural review, and by virtue of the fact that VTM 7151 is still valid. The Quimby Act ordinance the County had in effect at the time of approval of VTM 7151 provided for fees for park and recreation purposes in the amount of$1,100 per dwelling unit. (County Code § 920- 6.204). Therefore, even if the County had lawfully required, as a condition of tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation purposes, those fees would have been limited to $1,100 per dwelling unit. Accordingly, as an alternative to other remedies sought in this appeal, Davidon is entitled to refunds for all fees in excess of $1,100 per dwelling unit that Davidon has mistakenly paid to date for park purposes, and to issuance of building permits and certificates of occupancy for all remaining lots in that subdivision without payment of fees for park or recreation purposes in excess of$1,100 per dwelling unit. Very truly yours, Geoffrey . Robinson cc: County Clerk (via telecopier; w/encl.) MCCUTCHEN,DOYLE, BROWN&ENERSEN,LLP RECEIVED OCT - 3 CLERK BOARD OF SUPERVISORS ENCLOSURE MEM CONTRA COSTA CO. FEDERAL EXPRESS Date: October 2, 1997 Direct: 510-975-5388 mrodriguez@mdbe.com To: Ann Cervelli Deputy Clerk of the Board Contra Costa County Board of Supervisors 651 Pine Street, #106 Martinez, CA 94553 From: Michelle Rodriguez Secretary to Geoffrey L. Robinson Re: Davidon Homes v. County of Contra Costa, et al. Our File No. 71599-134 Enclosed: Per your request, enclosed is a copy of the Petition for Writ of Mandamus and Complaint for Damages and Declaratory Relief along with the original Verification signed by Dennis Razzari. ATTORNEYS AT LAW 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94596 Los Angeles Washington, D.C. Tel. (510) 9378000 Fax (510) 975-5390 San Jose Taipei http://www.mccutchen.com Walnut Creek -5, 1 McCUTCHEN,DOYLE, BROWN &ENERSEN Ff,-1 i ( '_ �� Geoffrey L. Robinson(112997) 2 Marie A. Cooper(114728) Post Office Box V 1111r� 19 P ob 3 Walnut Creek, California 94596-1270 Telephone: (510) 937-8000 Y- 4 Attorneys for Petitioner and Plaintiff, 5 Davidon Homes 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF CONTRA COSTA 9 10 DAVIDON HOMES, No. C A 5 11 Petitioner and Plaintiff, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DAMAGES AND 12 V. DECLARATORY RELIEF 13 COUNTY OF CONTRA COSTA; and SUMMONS ISSUED 14 DOES 1 through 25, inclusive, 15 Respondents and Defendants. PER LOCAL RULE 5 16 THIS CASE ISASIGNED 17 TO DEPS 18 19 20 21 22 23 24 25 26 27 28 PETITION AND COMPLAINT CA972270.023/71599-134 1 Petitioner and plaintiff Davidon Homes ("Davidon")by this verified petition and 2 complaint("petition") alleges: 3 INTRODUCTION 4 1. Davidon is the owner of the Reliez Valley Highlands project, an 81-home 5 subdivision in the Lafayette area of Contra Costa County, adjacent to Briones Park. The site 6 includes an area of natural oak woodland ridgeline that is preserved as open space. A total of 7 approximately 33 acres of this 70-acre site are preserved as open space, some with public access. 8 Development rights for several lots in the project are deeded to the County for scenic easements. 9 The project also includes a hiking trail dedicated to the East Bay Regional Park District and 10 constructed as specified by the Park District. Accordingly,when the County approved a 11 subdivision map for this project, it imposed numerous conditions related to various fees, but it 12 did not require any fees for parks. Now, the County is taking the position that Davidon owes not 13 only the $1,100 per-unit park fee the County could have required at the time of Davidon's 14 subdivision map approval,but that Davidon owes an increased fee of$2,000 per unit. The 15 Subdivision Map Act precludes imposing new conditions after tentative map approval, 16 particularly when the developer has vested rights as Davidon does here. Davidon accordingly 17 seeks a writ directing the County to issue building permits and certificates of occupancy without. 18 requiring payment of any park fees, and to refund all park fees paid to date. 19 PARTIES 20 2. Respondent and Defendant County of Contra Costa("County") is a 21 political subdivision of the State of California organized under State law. The County is the 22 entity charged with issuing building permits for construction in the incorporated areas of the 23 County, including the Reliez Valley Highlands subdivision. 24 3. The true names and capacities of Respondents and Defendants Does 1 25 through 25 are unknown to Davidon, who will amend this petition to insert their true names and 26 capacities when they have been ascertained. Davidon is informed and believes and on that basis 27 alleges that at all times relevant to this action, each of the Respondents and Defendants, 28 including Does 1 through 25, was the agent or employee of each of the remaining Respondents 2 CA972270.023 PETITION AND COMPLAINT 1 and Defendants, and,while acting within the scope and course of such agency or employment, 2 took part in the acts and omissions alleged in this petition. Each reference to the County, 3 Respondent(s) or Defendant(s)refers to Respondent and Defendant County of Contra Costa and 4 Respondents and Defendants Does 1 through 25. 5 MAP APPROVAL AND SUBSEQUENT EVENTS 6 4. In August 1992, the Contra Costa County Board of Supervisors approved 7 a Vesting Tentative Map for Subdivision 7151, the Reliez Valley Highlands subdivision. The 8 property is located in unincorporated Contra Costa County,west of Reliez Valley Road at the 9 westerly extension of Hidden Pond Road, in the Lafayette area. The property is bounded by 10 Briones Park, the Hidden Pond Hills Subdivision, the Oakmont Memorial Park Cemetery and the 11 Queen of Heaven Cemetery. 12 5. The County's approval of Vesting Tentative Map 7151 ("VTM 7151") 13 required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is 14 predominately located along a natural oak woodland ridgeline at the site. The approval further 15 provided that"[a]ccess into open space areas [shall be] maintained for public or private use,"and 16 that"[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement 17 standards." Davidon was required to grant an easement to the public for continued emergency 18 access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian 19 purposes to the East Bay Regional Park District, and to construct that trail as specified by the 20 Park District. Development rights for three parcels were required to be deeded to the County as a 21 scenic easement. 22 6. The County's approval of VTM 7151 was conditioned upon payment of 23 numerous fees, including payment of off-site traffic mitigation fees, fees to offset firefighting 24 costs, fees for police staffing, and fees required by the Martinez Unified School District. The 25 County's approval of VTM 7151 was also conditioned on compliance with numerous County 26 Ordinances and policies, including County grading and erosion control ordinances, the 27 ordinances specific to the R-15 zoning district, the County policy on water conservation 28 requirements for new development, Subdivision Ordinance section 94-4.420, the Transportation 3 CA972270.023 PETITION AND COMPLAINT 1 Systems Management(TSM) Ordinance, the County Child Care Ordinance, and section 92-2.006 2 of the County Ordinance Code. 3 7. Despite all these specific references to fees and compliance with County 4 ordinances, the County did not reference park fees in any condition of approval for VTM 7151. 5 Likewise, the County did not reference compliance with any County ordinances relating to park 6 fees in any condition of approval for VTM 7151. 7 8. Prior to the expiration of VTM 7151, Davidon obtained final subdivision 8 map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained 9 Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 10 days to process complete applications for grading permits, design review and architectural review 11 related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for 12 building permits under each final map,before the time periods specified in Government Code 13 section 66452.6(g) expired. Some of these permits have not yet expired. Included among the 14 permits that have not yet expired are permits that serve as master building approvals for the 15 models for the subdivision. 16 9. Davidon has mistakenly paid park fees for homes in the Reliez Valley 17 Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has 18 not received building permits, and the County has advised Davidon that it will require payment 19 of a$2,000-per-unit park fee. Davidon has exhausted all administrative remedies that it is 20 required to exhaust. Davidon has submitted letters to the County explaining the bases for its 21 objections. Davidon has no plain, speedy and adequate remedy in the ordinary course of law, 22 other than the relief sought in this petition. 23 THE COUNTY'S QUIMBY ACT CONTENTIONS 24 10. Government Code section 66477, commonly known as the "Quimby Act" 25 provides that a County may,by ordinance, require dedication of a certain amount of land or 26 payment of a certain amount of fees for park or recreational purposes as a condition to the 27 approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151, the 28 County had enacted a local ordinance under the Quimby Act, which provided that fees in the 4 CA972270.023 PETITION AND COMPLAINT IF N 1 amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map 2 approval, but did not place such a condition on VTM 7151. After approval of VTM 7151, and 3 after approval of Final Maps 7151, 7820 and 7821, the County apparently amended its local 4 ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. The County 5 recently advised Davidon that it contends that Davidon must pay Quimby Act fees in the amount 6 of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained 7 under VTM 7151 have expired. 8 11. In engaging in the acts and omissions described in this petition, the 9 County has abused its discretion and failed to proceed in the manner required by law. The 10 County has a present,ministerial duty to provide refunds for all fees mistakenly paid by Davidon 11 to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building 12 permits and certificates of occupancy for all remaining lots in that subdivision without payment 13 of unlawful or unconstitutional fees for park or recreation purposes. The County is refusing to 14 do so despite its ability to do so. 15 FIRST CAUSE OF ACTION 16 (Violation of Quimby Act) 17 (Against all Respondents and Defendants) 18 12. Davidon incorporates by reference the allegations of all preceding 19 paragraphs as though set forth in full at this place. 20 13. The County purports to impose fees on Davidon for park and recreation 21 purposes under the Quimby Act, Government Code section 66477. However, the Quimby Act 22 allows fees for park or recreation purposes only if they are imposed"as a condition to the 23 approval of tentative map or parcel map." Because the County did not require payment of 24 Quimby Act fees "as a condition of approval"of VTM 7151, the fees are not authorized under 25 the Quimby Act. 26 14. Accordingly,with respect to the Reliez Valley Highland subdivision, 27 Davidon is entitled to refunds for all fees mistakenly paid to date for park'purposes, and to 28 5 CA972270.023 PETITION AND COMPLAINT i 1 issuance of building permits and certificates of occupancy for all remaining lots in that 2 subdivision without payment of fees for park or recreation purposes. 3 WHEREFORE,Davidon prays judgment as set forth below. 4 SECOND CAUSE OF ACTION 5 (Taking of Property and Related Violations) 6 (Against all Respondents and Defendants) 7 15. Davidon incorporates by reference the allegations of all preceding 8 paragraphs as though set forth in full at this place. 9. 16. The attempt by the County to require fees for park or recreation purposes 10 for the Reliez Valley Highlands property, and to do so not as a condition of development 11 approval, is an attempt at an unconstitutional taking of Davidon's property without just 12 compensation, treats Davidon differently from other property owners who are similarly situated 13 in the relevant respects, and is confiscatory. Moreover, the County's attempt to require such fees 14 does not satisfy the criteria for a lawful tax. 15 17. Davidon is entitled to refunds or credits for all fees mistakenly paid to date 16 for the Reliez Valley Highlands subdivision for park purposes, and to issuance of building 17 permits and certificates of occupancy for all remaining lots in that subdivision without payment 18 of fees for park or recreation purposes. 19 WHEREFORE,Davidon prays judgment as set forth below. 20 THIRD CAUSE OF ACTION 21 (Violation of Govt. Code § 65961) 22 (Against all Respondents and Defendants) 23 18. Davidon incorporates by reference the allegations of all preceding 24 paragraphs as though set forth in full at this place. 25 19. Government Code section 65961 states that during the five-year period 26 following recordation of a final map for a subdivision, a county shall not condition issuance of a 27 building permit on any conditions that the county could have lawfully imposed as a condition to 28 a previously approved tentative map. Likewise, it prohibits a county from refusing to issue a 6 CA972270.023 PETITION AND COMPLAINT I building permit on these grounds. This statute is commonly called the"one bite of the apple 2 rule,"because it gives local agencies only one opportunity, at tentative map approval, to impose 3 conditions of approval. After tentative map approval, the County is precluded from imposing 4 new or additional conditions that could have lawfully been imposed earlier. 5 20. The County could have lawfully imposed a condition on VTM 7151 6 requiring payment of a fee for park or recreation purposes. Because the County did not do so, it 7 cannot impose such a condition as a condition of issuance of a building permit or certificate of 8 occupancy. Moreover, even if the County had imposed a condition requiring payment of park 9 fees at the rate of$1,100 per dwelling unit (which the County contends it did), it could not now 10 require payment of park fees at the rate of$2,000 per unit. 11 21. Accordingly, with respect to the Reliez Valley Highland subdivision, 12 Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes, 13 and to issuance of building permits and certificates of occupancy for all remaining lots in that 14 subdivision without payment of fees for park or recreation purposes. Alternatively, Davidon is 15 entitled to a refund of excess park fees paid and issuance of building permits and certificates of 16 occupancy with imposition of park fees that do not exceed $1,100 per unit. 17 WHEREFORE, Davidon prays judgment as set forth below. 18 FOURTH CAUSE OF ACTION 19 (Violation of Vested Rights) 20 (Against all Respondents and Defendants) 21 22. Davidon incorporates by reference the allegations of all preceding 22 paragraphs as though set forth in full at this place. 23 23. When the County approved VTM 7151, it granted vested rights to 24 Davidon to develop the Reliez Valley Highlands project in substantial compliance with the 25 ordinances, policies and standards in effect at the date the map application was complete. The 26 Quimby Act ordinance the County had in effect at that time provided for fees for park and 27 recreation purposes in the amount of$1,100 per dwelling unit. 28 7 CA972270.023 PETITION AND COMPLAINT 1 24. Therefore, even if the County had lawfully required, as a condition of 2 tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation 3 purposes, those fees would have been limited to $1,100 per dwelling unit. 4 25. Accordingly,with respect to the Reliez Valley Highland subdivision, and 5 as an alternative to other remedies sought in this petition, Davidon is entitled to refunds for all 6 fees in excess of$1,100 per dwelling unit that Davidon has mistakenly paid to date for park 7 purposes, and to issuance of building permits and certificates of occupancy for all remaining lots 8 in that subdivision without payment of fees for park or recreation purposes in excess of$1,100 9_ per dwelling unit. 10 WHEREFORE, Davidon prays judgment as set forth below. 11 FIFTH CAUSE OF ACTION 12 (Declaratory Relief) 13 (Against all Respondents and Defendants) 14 26. Davidon incorporates by reference the allegations of all preceding 15 paragraphs as though set forth in full at this place. 16 27. An actual controversy has arisen and now exists between the parties to this 17 action. Davidon makes the contentions set forth above. Davidon is informed and believes and 18 thereon alleges that the County denies them and contends that Davidon was lawfully required to 19 pay Quimby Act fees in the amount of$1,100 per dwelling unit previously, and that Davidon is 20 now required to pay Quimby Act fees in the amount of$2,000 per dwelling unit. A judicial 21 declaration is necessary and appropriate at this time so that Davidon and the County may 22 ascertain their rights and duties with respect to the Reliez Valley Highlands subdivision, and 23 avoid a multiplicity of actions. 24 WHEREFORE, Davidon prays relief as follows: 25 28. For a peremptory writ of mandate or other appropriate order directing the 26 County to: 27 28 8 CA972270.023 PETITION AND COMPLAINT 1 (a) Refund all park fees Davidon has paid for the Reliez Valley 2 Highlands subdivision, and issue building permits and certificates of occupancy without 3 requiring payment of park fees; or, alternatively, 4 (b) Refund all park fees Davidon has paid for the Reliez Valley 5 Highlands subdivision that exceed$1,100 per dwelling unit, and issue building permits and 6 certificates of occupancy without requiring payment of park fees that exceed$1,100 per dwelling 7 unit; 8 29. For an alternative writ of mandate directing the County to do the things set 9 forth in the immediately preceding paragraph or show cause before this Court why it should not 10 be required to do so; 11 30. For judgment in the amount of fees to be refunded to Davidon; 12 31. For a judicial declaration of the matters specified in this petition; 13 32. For Davidon's costs of suit; and 14 33. For such other legal or equitable relief as the court deems proper. 15 DATED: August 19, 1997. 16 17 McCUTCHEN, DOYLE,BROWN&ENERSEN 18 19 By: 20 Ge ey L. Robinson Attorneys for Petitioner and Plaintiff 21 Davidon Homes 22 23 24 25 26 27 28 9 CA972270.023 PETITION AND COMPLAINT 1 VERIFICATION 2 3 I, the undersigned, declare: 4 I am an officer of Davidon Homes, a California corporation, and am authorized to 5 execute this verification on its behalf. I have read the foregoing petition and complaint and know 6 its contents. I am informed and believe that the matters stated therein are true and, on that 7 ground, allege that they are true. 8 I declare under penalty of perjury that the foregoing is true and correct. 9 Executed this $ day of August, 1997, at Walnut Creek, California. 10 11 12 Dennis Razzari 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. CA972270.023 PETITION AND COMPLAINT COUNTY'^F CONTRA COSTA -- GEIGER/ RECEIPT �± DEPT: � ' 19 . ) RECEIPT G 833329 DOLLARS FOR RECEIVED FROM CASH ACCT. BAL • C T. PAID ��•©t7 MON ORDE • By: (D57 REV.7/89) 'I i' ! i�'.1 4� �N(�,CIjI` 1r,�11 Vd `t �fi ��c III IIS --U--T--C-14 ' IIII E1331 N. California Blvd„ P.Q. Bax V $an Francisco Palo Alto wc,- 1, Walnut Creek, California 84596 Los Angeles Washington, D.C. Tel, 45101 937,8000 Fax (510) 975.5390 San Jose Taipei McCtrCHE.N,DOYLE, Hko1 &ENERSEN,LLP htlp:flwww.mccutchen.CDM Walnut Creek ATTORNEYS AT LAW ��CEIVED SEP 0 81997 Fax Cover Page B� ; Date: September 5, 1997 To: Ms. Diana I Silver-Contra Costa County fax: 646-1078 voice: 335-1817 Mr. Stephen L.Weir-Contra Costa County fax: 646-2135 voice: 51.0 646-4166 From: Geoffrey L. Robinson fax, (510)975-5390 voice: grobinson@mdbe.com Number of pages (including this page): 16 For fax transmission problems,please call (510)975-5386. Message: RECEIVED 1997 CLERK P,OAR D OF SUPERVISORS t CONTRA Co WARNING: ^his fax is intended only for the recipient(s) named above. If,you receive this fax by mistake. Dlea,se telenhnne up I-11,lrf) n� �bv Mr 1 .i7 .lV i9�1 i -MCCUTCHEN MCCUTCHEN.DOYLE,BROWN&ENIERSEN,LLP September 5, 1997 grobinson@mdbe.com VIA FACSIMILE Clerk of the Board of Supervisors c/o Ms. Diana J. Silver Deputy County Counsel Contra Costa County 651 Pine Street, 9th Floor P. O. Box 69 Martinez, CA 94553 Notice of Appeal Davidon Homes, Reliez Valley Highlands Quimby Act Fees Our File No. 71599-134 Dear Ms. Silver: This letter is pursuant to your message to me, in which you indicated that Mr. Barry's decision concerning the park fees, as reflected in his August 7, 1997, letter is an "official action"that may be appealed to the Board of Supervisors. I do not believe an appeal is necessary, since Davidon's original claim and protest letter was.addressed directly to the Board of Supervisors. Nonetheless, without acknowledging the existence of an appeal requirement, I am filing this appeal on behalf of Davidon Homes. I have directed it to your attention because your memo responded to my previous letter to the Board and because you will probably be the one to present this matter to the Board. I am also transmitting a copy directly to the Clerk at the Clerk's Office. Davidon's verified statement of the facts, grounds for appeal, Davidon's special interest in this matter and Davidon's injury are stated in the petition and complaint we filed on August 19, 1997. A copy is enclosed and incorporated herein by this reference. A summary of the appeal follows. ATTORNF N' S A,1' LAW 1331 N. California Blvd., P.O. Box V San Francisco Palo Alto Walnut Creek, California 94598-1270 Los Angeles Washington, O.C. Tel. (510) 937.8000 Fax (510y 975-5390 San Jose Taipei http://www.mccutchen.com Walnut Creek Ms. Diana J. Silver September 5, 1997 Page 2 STATEMENT U FACTS AND STAILMENl OF DAVIDON'S SPECIAL INTEREST In August 1992, the Contra Costa County Board of Supervisors approved a Vesting Tentative Map for Subdivision 7151, the Reliez Valley Highlands subdivision. The property is located in unincorporated Contra Costa County, west of Reliez Valley Road at the westerly extension of Hidden Pond Road. The property is bounded by Briones Park, the Hidden Pond Hills Subdivision, the Oakmont Memorial Park Cemetery and the Queen of Heaven Cemetery. Davidon Homes is the owner and developer of this 81-single family home project. The County's approval of Vesting Tentative Map 7151 ("VTM 7151') required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is predominately located along a natural oak woodland ridgeline at the site. The approval further provided that "[a]ccess into open space areas [shall be] maintained for public or private use," and that "[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement standards." Davidon was required to grant an easement to the public for continued emergency access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian purposes to the East Bay Regional Park District, and to construct that trail as specified by the Park District. Development rights for three parcels were required to be deeded to the County as a scenic easement. The County's approval of VTM 7151 was conditioned upon payment of numerous fees, including payment of off-site traffic mitigation fees, fees to offset firefighting costs, fees for police staffing, and fees required by the Martinez Unified School District, The County's approval of VTM 7151 was also conditioned on compliance with numerous County Ordinances and policies, including County grading and erosion control ordinances, the ordinances specific to the R-15 zoning district, the County policy on water conservation requirements for new development, Subdivision Ordinance section 94-4,420, the Transportation Systems Management(TSM) Ordinance, the County Child Care Ordinance, and section 92-2.006 of the County Ordinance Code. Despite all these specific references to fees and compliance with County ordinances, the County did not require payment of fees or dedication of land for park or recreational purposes in any condition of approval for VTM 7151. Likewise, the County did not reference compliance with any County ordinances relating to park fees or land dedication in any condition of approval for VTM 7151. Ur I Ms. Diana J. Silver September 5, 1997 Page 3 Prior to the expiration of VTM 715 1, Davidon obtained final subdivision map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 days to process complete applications for grading permits, design review and architectural review related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for building permits under each final map before the time periods specified in Government Code section 66452.6(g) expired. Some of these permits have not yet expired. Included among the permits that have not yet expired are permits that serve as master building approvals for the models for the subdivision. Davidon has mistakenly paid park fees for homes in the Reliez Valley Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has not received building permits, and the County staff has advised Davidon that it will require payment of a $2,000-per-unit park fee. THE Q'UIMB'Y ACT Government Code section 66477, commonly known as the "Quimby Act" provides that a County may,by ordinance,require dedication of a certain amount of land or payment of a certain amount of fees for park or recreational purposes as a condition to the approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151, the County had enacted a local ordinance under the Quimby Act, which provided that fees in the amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map approval,but did not place such a condition on VTM 7151. After approval of VTM 7151, the County apparently amended its local ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. Comity staff recently advised Davidon that the County contends that Davidon must pay Quimby Act fees in the amount of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained under VTM 71,51 have expired. ' GROUNDS FOR APPEAL AND DAVID N'S INJURY The County has a present, ministerial duty to provide refunds for all fees mistakenly paid by Davidon to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building permits and certificates of occupancy for all remaining lots in that subdivision without payment of unlawful or unconstitutional fees for park or recreation purposes. The County is refusing to do so despite its ability to do so, Its refusal is unlawful for the following reasons: 8755 P, Ms. Diana I Silver September 5, 1997 Page 4 1. The County purports to impose fees on Davidon for park and recreation purposes under the Quimby Act, Government Code section 66477. However, the Quimby Act allows fees for park or recreation purposes only if they are imposed "as a condition to the approval of tentative map or parcel map." Because the County did not require payment of Quimby Act fees "as a condition of approval" of VTM 7151, the fees are not authorized under the Quimby Act. The County's Quimby Act ordinance clearly contemplates and requires a decision by staff prior to approval of a tentative map regarding whether to require a dedication of land within the development,payment of an in-lieu fee, or a combination of both as a condition to the approval of the tentative map. (County Code § 920- 12.004). No such requirement was attached as a condition of approval of Davidon's tentative map. and the fees are therefore not authorized under either the Quimby Act or the County's own ordinance. 2. The attempt by the County to require fees for park or recreation purposes for the Reliez Valley Highlands property, and to do so not as a condition of development approval, is an attempt at an unconstitutional taking of Davidon's property without just compensation, treats Davidon differently from other property owners who are similarly situated in the relevant respects, and is confiscatory. Moreover, the County's attempt to require such fees does not satisfy the criteria for a lawful special tax. I Government Code section 65961 states that during the five-year period following recordation of a final map for a subdivision, a county shall not condition issuance of a building permit on any conditions that the county could have lawfully imposed as a condition to a previously approved tentative map. Likewise, it prohibits a county fxorn refusing to issue a building permit on these grounds. This statute is commonly called the "one bite of the apple rule,"because it gives local agencies only one opportunity, at tentative map approval,to impose conditions of approval. After tentative map approval, the County is precluded from imposing new or additional conditions that could have lawfully been imposed earlier. The County could have lawfully imposed a condition on VTM 7151 requiring payment of a fee for park or recreation purposes. Because the County did not do so, it cannot impose such a condition as a condition of issuance of a building permit or certificate of occupancy. Moreover, even if the County had imposed a condition requiring payment of park fees at z11 pp� qtr r�r�t (�,. lr�ll'� 1 CCTI1LEEN 1r/C !Vii Ms. Diana J. Silver September 5, 1997 Page 5 the rate of$1,100 per dwelling unit(which the County contends it did), it could not now require payment of park fees at the rate of S2,000 per unit, 4. Accordingly, with respect to the Reliez Valley Highland subdivision, Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes, and to issuance of building permits and certificates of occupancy for all remaining lots in that subdivision without payment of fees for park or recreation purposes. Alternatively, Davidon is entitled to a refund of excess park fees paid and issuance of building permits and certificates of occupancy with imposition of park fees that do not exceed $1,100 per unit. 5. When the County approved VTM 7151, it granted vested rights to Davidon to develop the Reliez Valley Highlands project in substantial compliance with the ordinances, policies and standards in effect at the date the map application was complete. Davidon's vested rights under VTM 7151 have been extended by the pendency of building permits for this subdivision,by the County's delays in acting upon applications for grading permits and for design and architectural review, and by virtue of the fact that VTM 7151 is still valid. The Quimby Act ordinance the County had in effect at the time of approval of VTM 7151 provided for fees for park and recreation purposes in the amount of S 1,100 per dwelling unit. (County Code § 920- 6.204). Therefore, even if the County bad lawfully required, as a condition of tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation purposes, those fees would have been limited to $1,100 per dwelling unit. Accordingly, as an alternative to other remedies sought in this appeal, Davidon is entitled to refunds for all fees in excess of $1,100 per dwelling unit that Davidon has mistakenly paid to date for park purposes, and to issuance of building permits and certificates of occupancy for all remaining lots in that,subdivision without payment of fees for park or recreation purposes in excess of$1,100 per dwelling unit. Very truly yours, Geoffrey .Robinson cc: County Clerk (via telecopier;w/encl.) TO T Hr� W/C 87F 4 P 5 5 P. 7/1 F 1 McCUTCHEN, DOYLE, BROWN &ENERSEN . 7- Geoffrey L. Robinson(112997) 2 Marie A. Cooper(114728) Post Office Box V 3' 5 b 3 Walnut Creek, California 94596-1270 Telephone: (510) 9.37-8000 4 Attorneys for Petitioner and Plaintiff, 5 Davidon.Homes 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF CONTRA COSTA 9 io DAVIDON HOMES, No, C 9 n 5 11 Petitioner and Plaintiff, PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DAMAGES AND 12 V. DECLARATORY RELIEF 13 COUNTY OF CONTRA COSTA; and SUMMONS ISSUED 14 DOES I through 25, inclusive, is Respondents and Defendants. PER LOCAL RULE 5 16 THIS M iMSIGNED TO DEPS--y-— 17 18 19 20 21 22 23 24 25 26 27 28 PETITION AND COMPLAINT CA972270.023R1560-134 .3 r' lR �4rL,fiii uF.1 1 Petitioner and plaintiff Davidon Homes ("Davidon")by this verified petition and 2 complaint("petition") alleges: 3 INTRODUCTION 4 1. Davidon is the owner of the Reliez Valley Highlands project, an 81-home 5 subdivision in the Lafayette area of Contra Costa County, adjacent to Briones Park. The site 6 includes an area of natural oak woodland ridgeline that is preserved as open space, A total of 7 approximately 33 acres of this 70-acre site are preserved as open space,some with public access. 8 Development rights for several lots in the project are deeded to the County for scenic easements. 9 The project also includes a hiking trail dedicated to the East Bay Regional Park District and 10 constructed as specified by the Park District. Accordingly,when the County approved a 11 subdivision map for this project, it imposed numerous conditions related to various fees,but it 12 did not require any fees for parks. Now, the County is taking the position that Davidon owes not 13 only the $1,100 per-unit park fee the County could have required at the time of Davidon's 14 subdivision map approval, but that Davidon owes an increased fee of$2,000 per unit. The 15 Subdivision Map Act precludes imposing new conditions after tentative map approval, 16 particularly when the developer has vested rights as Davidon does here. Davidon accordingly 17 seeks a writ directing the County to issue building permits and certificates of occupancy without 18 requiring payment of any park fees, and to refund all park fees paid to date. 19 PARTIES 20 2, Respondent and Defendant County of Contra Costa("County)is a 21 political subdivision of the State of California organized under State law. The County is the r 22 entity charged with issuing building permits for construction in the incorporated areas of the 23 County, including the Reliez"Valley Highlands subdivision. 24 1 The true names and capacities of Respondents and Defendants Does 1 25 through 25 are unknown to Davidon,who will amend this petition to insert their true names and 26 capacities when they have been ascertained. Davidon is informed and believes and on that basis 27 alleges that at all times relevant to this action, each of the Respondents and Defendants, 28 including Does 1 through 25,was the agent or employee of each of the:remaining Respondents 2 r1G! 11 3 Pp !,,K4* N W 8175,: 1 and Defendants, and, while acting within the scope and course of such agency or employment, 2 took part in the acts and omissions alleged in this petition. Each reference to the County, 3 Respondent(s) or Defendant(s)refers to Respondent and Defendant County of Contra Costa and 4 Respondents and Defendants Does 1 through 25. 5 MAP APPROVAL AND SURSEQ,UEN'i`EVENTS 6 4. In August 1992, the Contra Costa County Board of Supervisors approved 7 a Vesting Tentative Map for Subdivision 7151,the Reliez Valley Highlands subdivision. The 8 property is located in unincorporated Contra Costa County, west of Reliez Valley Road at the 9 westerly extension of Hidden Pond Road, in the Lafayette area. The property is bounded by 10 Briones Park, the Hidden Pond Hills Subdivision, the Oakmont Memorial Park Cemetery and the I I Queen of Heaven Cemetery, 12 5. The County's approval of Vesting Tentative Map 7151 ('TTM 7151") 13 required that 32.8 acres of the 70-acre project site be preserved as open space. The open space is 14 predominately located along a natural oak woodland ridgeline at the site. The approval further 15 provided that"[a]ccess into open space areas [shall be] maintained for public or private use," and 16 that "[o]pen spaces left in their natural state shall comply with the Fire District's weed abatement 17 standards." Davidon was required to grant an easement to the public for continued emergency 18 access to Briones Park land. Davidon was also required to dedicate a hiking trail for pedestrian 19 purposes to the East Bay Regional Park District, and to ^rnstnict that trail as specified by the zu rerx rrisiric[. r�evCIQPI11CIIt it&s far three parcels were required to be deeded to the County as a 21 scenic easement. _ � t 's a "oval of 92 7151 was conditioned u on a ent of 11" I Systems Management(TSM) Ordinance, the County Child Care Ordinance., and section 92-2.006 2 of the County ace Code. jjrsoite all these spt,.-,' I to fees and compliance :1.. -y c`i )t r,�feren-e p�a z-6p.3 in arty,--)ndition of a pro- I 11: V 7,51 - Likewi s�, '.he Courq did not reference compliance with any County ordinances relating to park 6 fees in condition of approval for VTM 7151. 7 B. Prior to the expiration of VTM 7 15 1,Davidon obtained final subdivision 8 map approval for the Reliez Valley Highlands subdivision in three phases. Davidon obtained 9 Final Vesting Subdivision Map numbers 7151, 7820 and 7821. The County took more than 30 10 days to process complete applications for grading permits, design review and architectural review 11 related to final maps 7151, 7820 and 7821. Davidon submitted complete applications for 12 building permits under each final map,before the time periods specified in Government Code 13 section 66452.6(g) expired. Some of these permits have not yet expired., Included among the 14 permits that have not yet expired are permits that serve as master building approvals for the 15 models for the subdivision. 16 9. Davidon has mistakenly paid park fees for homes in the Reliez Valley 17 Highlands subdivision. Moreover, several lots remain in the subdivision for which Davidon has IS not received building permits, and the County has advised Davidon that it will require payment 19 of a$2,000-per-unit park fee. Davidon has exhausted all administrative remedies that it is 20 required to exhaust. Davidon has submitted letters to the County explaining the bases for its 21 objections. Davidon has no plain, speedy and adequate remedy in the ordinary course of law, 22 other than the relief sought in this petition. 23 THE COLN= QUIMBY ACT CONTENTIONS 24 10. Government Code section 66477, commonly known as the,"Quimby Act" 25 provides that a County may,by ordinance,require dedication of a certain amount of land or 26 payment of a certain amount of fees for park or recreational purposes as a condition to the 27 approval of a tentative subdivision or parcel map. As of the time of approval of VTM 7151, the 28 County had enacted a local ordinance under the Quimby Act,which provided that fees in the I amount of$1,100 per parcel could be imposed as a condition of tentative subdivision map 2 approval,but did not place such a condition on VTM 7151, After approval of VTM 7151, and 3 after approval of Final Maps 7151, 7820 and 7821,the County apparently amended its local 4 ordinance to provide for Quimby Act fees in the amount of$2,000 per parcel. The County 5 recently advised Davidon that it contends that Davidon must pay Quimby Act fees in the amount 6 of$2,000 per parcel based on the County's conclusion that the vested rights Davidon obtained 7 under VTM 7151 have expired. 8 11. In engaging in the acts and omissions described in this petition, the 9 County has abused its discretion and failed to proceed in the manner required by law. The 10 County has a present, ministerial duty to provide refunds for all fees mistakenly paid by Davidon 11 to date for the Reliez Valley Highlands subdivision for park purposes, and to issue building 12 permits and certificates of occupancy for all remaining lots in that subdivision without payment 13 of unlawful or unconstitutional fees for parr or recreation purposes. The County is refusing to 14 do so despite its ability to do so. 15 FIRST CAUSE OF ACTION 16 (Violation of Quimby Act) 17 (Against all Respondents and Defendants) is 12. Davidon,incorporates by reference the allegations of all preceding 19 paragraphs as though set forth in full at this place. 20 13. The County purports to impose fees on Davidon for park and recreation 21 purposes under the Quimby Act, Government Code section 66477. However,the Quimby Act 22 allows fees for parr or recreation purposes only if they are imposed"as a condition to the 23 approval of tentative map or parcel map." Because the County did not require payment of 24 Quimby Act fees"as a condition of approval" of VTM 7151,the fees are not authorized under 25 the Quimby Act. 26 14. Accordingly,with respect to the Reliez Valley Highland subdivision, 27 Davidon is entitled to refunds for all fees mistakenly paid to date for park purposes, and to 28 5 rawivwi D97r7lAPJ Alun rrnenor nrnrr W/G 1 issuance of building permits and certificates of occupancy for all remaining lots in that 2 subdivision without payment of fees for park or recreation purposes. 3 WHEREFORE, Davidon prays judgment as set forth below. 4 SECOND CAUSE OF ACTION 5 (Taking of Property and Related Violations) 6 (Against all Respondents and Defendants) 7 15. Davidon incorporates by reference the allegations of all preceding 8 paragraphs as though set forth in full at thus place. 9 16. The attempt by the County to require fees for park or recreation purposes 10 for the Reliez Valley Highlands property, and to do so not as a condition of development 11 approval, is an attempt at an unconstitutional taking of Davidon's property without just 12 compensation,treats Davidon differently from other property owners who are similarly situated 13 in the relevant respects, and is confiscatory. Moreover,the County's attempt to require such fees 14 does not satisfy the criteria for a lawful tax. 15 17. Davidon is entitled to refunds or credits for all fees mistakenly paid to date 16 for the Reliez Valley Highlands subdivision for park purposes, and to issuance of building 17 permits and certificates of occupancy for all remaining lots in that subdivision without payment 1g of fees for part: or recreation purposes. 19 WHEREFORE,Davidon prays judgment as set forth below. 20 THIRD CAUSE OF ACTIQN 21 (Violation of Govt. Code § 65961) 22 (Against all Respondents and Defendants) 23 18. Davidon incorporates by reference the allegations of all preceding 24 paragraphs as though set forth in full at this place. 25 19. Government Code section 65961 states that during the five-year period 26 following recordation of a final map for a subdivision, a county'shall not condition issuance of a 27 building permit on any conditions that the county could have lawfully imposed as a condition to 28 a previously approved tentative map. Likewise, it prohibits a county from refusing to issue a 6 CA972270.029 PETITION AND COMPLAINT ..r i'7ar R y�+ t.• ,n r- �, 1 building permit on these grounds. This statute is commonly called the"one bite of the apple 2 rule,"because it gives local agencies only one opportunity, at tentative map approval,to impose 3 conditions of approval. After tentative map approval,the County is precluded from imposing 4 new or additional conditions that could have lawfully been imposed earlier, 5 20. The County could have lawfully imposed a condition on VTM 7151 6 requiring payment of a fee for park or recreation purposes. Because the County did not do so,it 7 cannot impose such a condition as a condition of issuance of a building permit or certificate of 8 occupancy. Moreover, even if the County had imposed a condition requiring payment of park 9 fees at the rate of$1,100 per dwelling unit(which the County contends it did), it could not now 10 require payment of park fees at the rate of$2,000 per unit. 11 21. Accordingly, with respect to the Reliez Valley Highland subdivision, 12 Davidon is entitled to refunds or credits for all fees mistakenly paid to date for park purposes, 13 and to issuance of building permits and certificates of occupancy for all remaining lots in that 14 subdivision without payment of fees for park or recreation purposes. Alternatively, Davidon is 15 entitled to a refund of excess park fees paid and issuance of building permits and certificates of 16 occupancy with imposition of park fees that do not exceed$1,100 per unit. 17 WHEREFORE,Davidon prays judgment as set forth below. 1s FOURTH CAUS , OF ACTION 19 (Violation of Vested Rights) 20 (Against all Respondents and Defendants) 21 22. Davidon incorporates by reference the allegations of all preceding Z2 paragraphs as though set forth in full at this place, 23 23. When the County approved VTM 7151, it granted vested rights to 24 Davidon to develop the Reliez Valley Highlands project in substantial compliance with the 25 ordinances,policies and standards in effect at the date the map application was complete. The 26 Quimby Act ordinance the County had in effect at that time provided for fees for park and 27 recreation purposes in the amount of$1,100 per dwelling unit. 28 7 CA872270.023 PFTITIr)N ANn nnanvi AWAIT 1'I 1 24. Therefore, even if the County had lawfully required, as a condition of 2 tentative map approval, fees for the Reliez Valley Highlands subdivision for park or recreation 3 purposes, those fees would have been limited to $1,100 per dwelling unit. 4 25. Accordingly,with respect to the Reliez Valley Highland subdivision, and 5 as an alternative to other remedies sought in this petition,Davidon is entitled to refunds for all 6 fees in excess of$1,100 per dwelling unit that Davidon has mistakenly paid to date for park 7 purposes, and to issuance of building permits and certificates of occupancy for all remaining lots 8 in that subdivision without payment of fees for park or recreation purposes in excess of$1,100 9 per dwelling unit. 10 WI-TEREFORE,Davidon prays judgment as set forth below. 11 FIFTH CAUSE OF ACTION 1z (Declaratory Relief) 13 (Against all Respondents and Defendants) 14 26. Davidon incorporates by reference the allegations of all preceding 15 paragraphs as though set forth in full at this place. 16 27. An actual controversy has arisen and now exists between the parties to this 17 action. Davidon makes the contentions set forth above. Davidon is informed and believes and 1$ thereon alleges that the County denies them and contends that Davidon was lawfully required to 19 pay Quimby Act fees in the amount of$1,100 per dwelling unit previously, and that Davidon is 20 now required to pay Quimby Act fees in the amount of$2,000.per dwelling unit. A judicial 21 declaration is necessary and appropriate at this time so that Davidon and the County may 22 ascertain their rights and duties with respect to the Reliez Valley Highlands subdivision, and 23 avoid a multiplicity of actions. 24 WHEREFORE,Davidon prays relief as follows: 25 28. For a peremptory writ of mandate or other appropriate order directing the 26 County to: 27 28 8 GA972270.023 PETITION AND COMPLAINT P. 31 mc 0 IN W/0 P, 15/16 (a) Refund all park- fees Davidon has paid for the Reliez Valley 2 Highlands subdivision, and issue building permits and certificates of occupancy without 3 requiring payment of park fees; or, alternatively, 4 (b) Refund all park fees Davidon has paid for the Reliez Valley 5 Highlands subdivision that exceed$1,140 per dwelling unit, and issue building permits and 6 certificates of occupancy without requiring payment of park fees.that exceed$1,100 per dwelling 7 unit; 8 29. For an alternative writ of mandate directing the County to do the things set 9 forth in the immediately preceding paragraph or show cause before this Court why it should not 10 be required to do so; 11 30. For judgment in the amount of fees to be refunded to Davidon; 12 31. For a judicial declaration of the matters specified in this petition; 13 32. For Davidon's costs of suit; and 14 33. For such other legal or equitable relief as the court deems proper. 15 DATED: August 19, 1997. 16 McCUTCHEN,DOYLE,BROWN&ENERSEN 17 Is 19 By: 20 Ge6ffrey L.Robinson Attorneys for Petitioner and Plaintiff 21 Davidon Homes 22 23 24 25 26 27 28 9 CA972270.023 CP. jF ' No. 07 5 P. 1J/ 1 'VERIFICATION 2 3 I,the undersigned,declare: 4 I am an officer of Davidon Homes, a California corporation, and am authorized to 5 execute this verification on its behalf. I have read the foregoing petition and complaint and know 6 its contents, I am informed and believe that the matters stated therein are true and, on that 7 ground, allege that they are true. 8 I declare under penalty of perjury that the foregoing is true and correct. 9 Executed this day of August, 1997, at Walnut Creek, California. 10 11 ' 1 12 Dennis Razzari 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 CA872270=3 PETITION AM rnUPI ABUT