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HomeMy WebLinkAboutMINUTES - 05171988 - 2.5 orn q TO: BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY AND AS GOVERNING BOARD OF CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR DATE: May 10, 1988 SUBJECT: Letter from Mr. Robert Rice Requesting Special Consideration in Payment of Drainage Fee, West Antioch Area Specific Request(s) or Recommendation(s) & Background & Justification I. RECOMMENDATION A. DENY request of Mr. Robert Rice for waiver of drainage fees for the Andover Commons Senior Citizen Project in the West Antioch Creek Watershed based on the following: 1) The impervious surface drainage fee represents a uniform distribution of the necessary drainage infrastructure cost to all developments, and 2) The proposed senior citizen housing project will add storm water runoff into the drainage system, and will contribute to the need for downstream improvements, and 3) The impervious surfaces created by this development are no different from those created by other developments, and 4) This development's failure to pay its fair share would require all other developments in the watershed to be assessed a higher fee, and 5) Failure to treat all properties in an equitable manner undermines the validity of the ordinance. Continued on attachment: X yes Signature: Recommendation of County Administrator Recommendation of Board Committee Approve Other: Signature(s) : Action of Board on: May 17, 1988 Approved as Recommended X Other Vote of Supervisors I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN X Unanimous (Absent — ) ACTION TAKEN AND ENTERED ON Ayes: Noes: THE MINUTES OF THE BOARD OF Absent: Abstain: SUPERVISORS ON DATE SHOWN. Attested Orig. Div. :Public Works (FC) PHIL ABATdHELOR, cc: County Administrator CLERK OF THE BOARD County Counsel OF SUPERVISORS AND Community Development COUNTY ADMINISTRATOR Public Works Flood Control MFK:and Robert Rice BO: 3 .t5 qf(PBy UTY CLERK B. DIRECT staff to measure the amount of impervious surfaces to be created by the Andover Commons Senior Citizen Project, to determine if said amount is consistent with the category of Multi-Family use, and to collect the fee based on the actual amount of new impervious surface if the quantity is significantly less. II. FINANCIAL IMPACT The fee due on the property in question, APN 72-011-052 , is estimated to be $15, 300 based on the old County Service Area Ordinance for Area D-3 , or $105, 000 based on the new Impervious Surface Ordinance for Drainage Area 55 which will be in effect starting May 7, 1988. III. REASONS FOR RECOMMENDATION/BACKGROUND Attached is a memo from County Counsel discussing the legal implications of waiving drainage fees and the necessary evidence that must be present to justify such an action. Consistent with the comments in the memo, the past and present drainage fee ordinances uniformly spread the cost of drainage infrastructure to all of the developing properties on an acreage basis, or on a square foot of new impervious surface basis. We believe the New Impervious Surface Ordinance is the most equitable method. In developing the new ordinance, care was taken to maintain fair treatment for all developing properties. This fair treatment is documented in our report of January 5, 1982 , "Report on Impervious Surface Drainage Fee Ordinance. " Senior citizens ' housing may have significantly less impact on many infrastructure needs, i.e. , traffic, domestic water, sanitary services. Unfortunately, in the case of drainage, the impact is in direct proportion to the amount of impervious surface being added to the watershed. Rainfall has the same affect where it falls on senior citizen housing rooftops as it does on rooftops on commercial buildings. To the extent that the senior citizen units are smaller than normal multi-family units, an adjustment in the fee should be made. We recommend that the Andover Commons Project be compared to our land use impervious surface standards to insure that the appropriate fee is charged. It is possible that the total amount of impervious surface being created is below the standard amounts used for multi-family. IV. CONSEQUENCES OF NEGATIVE ACTION Failure to implement the intent of the Drainage Fee Ordinance and its basis for equitably spreading the infrastructure cost to all developing properties, would undermine the ordinance and result in many requests of the Board for exceptions. COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY Dare: April 25, 1988 MARTINEZ, CALIFORNIA To: Board of Supervisors From: Victor J. Westman, County Counsel By: David F. Schmidt, Deputy County Counsel U Re: Legality of Exemption of Senior Housing from Drainage Fees SUMMARY: Drainage fees are required by state statute to be fairly apportioned on the basis of benefits conferred on the involved properties. Any decision to waive or reduce drainage fees for the Andover Commons project (or senior housing in general) would have to be based upon evidence convincing the Board that drainage from such development would be less than that from other development charged higher drainage fees. Absent evidence of this type, a decision to waive or reduce drainage fees for the Andover Commons project (or senior housing in general) might be subject to legal challenge by other property owners or developers in the area on the basis that drainage fees are not being fairly apportioned-.i.-on the basis of drainage generated or benefits conferred. BACKGROUND: On 1-27-88, the developer of the Andover Commons Retirement Complex in the City of Antioch applied to the Flood Control District for exemption from, or reduction in, the drainage fees applicable to the project. The project, which is designed for active seniors, will contain 211 residential units contained in 4 three-story buildings , all connected to, a two-story community building. The project is. located in an area which was recently converted from a County service area (County Service Area D-3) to a drainage area (Drainage Area 55) . Under the existing fee ordinance, which calculates .drainage fees by theacre, the Andover Commons project would pay $1-5:,300 in drainage fees. Under the new fee ordinance (Ord. No. 88-24) , which will take effect on May 7 , 1988, the drainage fees for the project would be $105, 000. Drainage fees under the new ordinance are based upon the average area of impervious surface created by different categories of development (e.g. , single family residential, multi-family residential, etc. ) . Fees are payable upon recordation of a subdivision map or upon issuance of building permits, whichever occurs first. Board of Supervisors -2- April 25, 1988 On 4-5-88, the Board requested a further report from the Flood Control District on the proposal to exempt or reduce drainage fees. In addition, the Board requested that this office submit an opinion on the legality of exempting or reducing drainage fees for senior housing. This memo responds to the Board' s request. DISCUSSION: The drainage fees imposed and collected by the Flood Control District are authorized by section 63-12. 2 of the Water Code - Appendix, which provides: "Fees may be collected pursuant to this section for payment of all or any portion of any such drainage facility costs if the costs, whether actual or estimated, are based upon findings by the board, that development of property within the planned drainage area will require construction of the facilities described in the drainage plan, and that fees are fairly apportioned within the local drainage area on the basis of benefits conferred on property within the area. The fee as to any property within the drainage area may be charged as a condition precedent to the development of such property, and no building permit therefor shall be issued or the final map for a subdivision approved until payment thereof, and such fee shall not exceed the pro rata share of the amount of the total actual or estimated costs of all such drainage facilities within the drainage area which would be assessable on such property if such costs were apportioned on a uniform fee schedule , excluding, however, such property within the area as, in the opinion of the board, is incapable of development from fees. " The language just quoted does not expressly authorize that fees be waived or reduced, except where the board determines that property is incapable of development. Moreover, the statute requires that drainage fees be fairly apportioned on the basis of benefits conferred. The,._statutory requirement that drainage fees be fairly apportioned is <similar to the rule which requires that rates and fees for sewers and drains be reasonable, fair , equitable, uniform and without discrimination against particular property owners. (Boynton v. City of Lakeport Municipal Sewer District (1972) 28 Cal.App. 3d 91, 94; 11 McQuillin, The Law of Municipal Corporations (rev. ed. 1983 ) Sewers and Drains, § 31. 30a, pp. 221-222. ) Under the existing (but to be amended 5-7-88) drainage fee ordinance, drainage fees are calculated based upon the acreage of the property being developed. Evidently, the underlying rationale Board of Supervisors -3- April 25, 1988 for this method of. fee apportionment is that the larger a parcel is , the more drainage it will generate and the higher the fee should be. Under this method of fee apportionment, any decision to waive or reduce drainage fees for a particular project or class of projects (e.g. , senior housing) would have to be on the basis that the project or projects will generate a lesser amount of 'drainage than other comparably-sized properties. As we understand the Andover Commons project, it will include a substantial amount of parking and other impervious surfaces that tend to generate surface drainage. If our understanding is correct, it may be difficult to establish that the drainage impacts from the Andover Commons project would be less than those from other comparably-sized projects or properties . Under the new drainage fee ordinance (No. 88-24) , which will become effective on May 7 , 1988, drainage fees are calculated based upon the average impervious surface area to be added by different categories of development (e.g. , single family residential, multi-family residential, etc. ) . Materials prepared by the Flood Control District state that there is a close connection between the amount of impervious surface area and the amount of drainage generated by development. (See "Report on . . .Impervious Surface Drainage Fee Ordinance" December 198.1.: and revised January 5, 1982. ) These materials support the proposition that any decision to waive or reduce drainage fees for a particular project or class of projects should be based upon the Board' s conviction that impervious surface area or drainage from the project or projects will be less than that from other projects or classes of projects subject to higher drainage fees. It is our understanding that the Andover Commons project will include a substantial amount of parking and other impervious surfaces, but we do not know how these areas compare with the average or assumed figures applicable to the multi-family residential category. If the actual impervious surface area of the Andover Commons project (or senior housing in general) is less than that assumed for multi-family residential development, the drainage fees could be adjusted accordingly ( i.e. , reduced to reflect actual impervious, surface area or drainage impacts) . . I.f the impervious surface area is not less, a decision to waive or reduce the drainage fees might be subject to legal challenge by other property owners or developers in the area. In researching this matter, we have reviewed and considered an ordinance currently being considered by Contra Costa County Sanitation District No. 7-A. (See Ordinance No. 34 ; copy attached. ) Under the Sanitation District ordinance, the sewer connection fees for the project may be reduced by 75 percent, subject to certain conditions. Given the generally lower water Board of Supervisors -4- April 25, 1988 usage of senior citizens, a board could validly conclude that impacts from a senior housing project on a sewer system would be lower, thus justifying lower connection fees. While such a finding may possibly be made in the case of sewer usage, a similar finding in the case of drainage impacts may not be valid. We have also. considered .Government Code section 65915 and other statutes which reflect a. legislative policy to promote low and moderate income housing and senior housing. (See Civ. Code, §§ 51. 2 and 51. 3; Health & Saf. Code, §§ 19900, 19901, 50670, 50736, 51450-51471. ) None of these statutes waives, reduces or limits drainage fees charged by flood control districts or other drainage entities. However, Government Code section 65915 does authorize the granting of density bonuses and other financial incentives to assist low and moderate income housing. Presumably, the City of Antioch could grant such incentives to the Andover Commons Project, and the incentives could offset the drainage fees charged by the Flood Control District. DFS:tb Attachment cc: J. Michael Walfo.rd, Public Works Director Attn: Milton F. Rubicek, Administrative Services Division Phil Batchelor, County Administrator Attn: John T. Gregory, Management Analyst 3-14-88 draft ORDINANCE NO. 33 BEFORE THE BOARD OF DIRECTORS OF CONTRA COSTA COUNTY SANITATION DISTRICT NO. 7-A AN ORDINANCE ALLOWING REDUCTION OF CONNECTION FEES AND DEFERRAL OF PAYMENT The Board of Directors of Contra Costa County Sanitation District No. 7-A ordains as follows: SECTION 1. Section 6 of Ordinance No. it is amended to read as follows: "SECTION 6. Connection and Development Fee adjustment. A. The Board of Directors may reduce the Development Fee or Connection Fee required herein by 75%, when one or more of the following conditions have been satisfied: V "(1) The propertyVserved by the connection islused exclusively for physically or mentally handicapped persons, in accordance with the provisions of Welfare and Institutions Code section 5116. "(2 ) The property served by the connection has received a density bonus or ;j ether incentive by the in agency with u G jurisdiction, pursuant to Government Code sections 65915-18. ta �C 4 . : "(3) The property- served by the connection consist of senior citizen housing, in accordance with the provisions of Civil Code section 51.3. "(4) It appears from the application f filed with.'the District that the main sewers { to be constructed allow for future connection- -to the District lines from properties other than those to be served as shown in the Y. application. "B. Before any reduction is granted by the Board of Directors under Paragraph A. , the developer shall enter into a contract with the District. The contract S shall provide that if the use of the property is subsequently. changed.so ' that none of . the above conditions applies to the pp property, the developer or current owner, or both, shall pay forthwith to the District the difference between the connection fee paid 2 C Q�a and the full connection fee which was applicable at the time of connection. " "C. The Board of Directors may defer payment of the Development Fee or Connection for up to ten years, when one or more of the conditions set forth, in Paragraph A. have been satisfied. Before such a deferral is granted, the developer shall enter into a contract with the. District. .The contract shall provide that if the use of the property is subsequently changed f so that none of the above conditions applies to the property, the developer or current owner, or both, j shall pay the fee to the District forthwith." . . ''SECTION 2. . EFFECTIVE .DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of Directors voting for and against it in the Pittsburg Post Dispatch and Antioch Daily Ledger, newspapers published in this County and circulated in the District. PASSED on , 1988; by the following vote: AYES: 3 NOES: ABSENT: ABSTAIN: ATTEST: Ronald A. Tsugita, District Manager/Engineer and Chair, Board of Directors Secretary to the Board of Directors 4