HomeMy WebLinkAboutMINUTES - 06261990 - 2.5 a.s
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THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on June 26, 1990 by the following vote:
AYES: Supervisors Powers, Schroder, McPeak, Torlakson, Fanden
NOES: None
ABSENT: None
ABSTAIN: None
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SUBJECT: Pacheco Properties, MS 108-89
The Board received the attached report dated June 22,
1990 from Victor J. Westman, County Counsel, relative to Minor
Subdivision 108-89, Pacheco Properties.
Maurice Huguet, attorney representing the property
owner, advised that he and his client had met with County
representatives and were in the process of resolving the issues.
He requested that the matter be deferred for two weeks to allow
further review and final resolution.
Board members being in agreement, IT IS ORDERED that the
matter is DEFERRED to the July 10, 1990 Determination Calendar.
cc: Public Works Director
County Counsel
Auditor-Controller I hereby certify that this is a true and correct copy of
County Administrator an action taken rnd entered on the minutes of the
Board of Supervi on the date shown.
ATTESTED: - 0?4, /9 9D
PHIL OTCHELOR. ;ierk of the Board
of Supervisors and County Administrator
ib
COUNTY COUNSEL'S OFF/CE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: June 22, 1990
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: David F. Schmidt, Deputy County Counsel
Re: Report from County Counsel in Response to Board
Referral of June 5, 1990
Minor Subdivision 108-89 (Pacheco Properties)
On June 5, 1990, the Board received a report (see attached
copy) from the Public Works Director. The report, which
discussed the drainage fees and road fees collected from the
above-numbered minor subdivision, recommended that the Board
uphold the requirement that the developer (Pacheco Properties)
pay the fees imposed by existing ordinances . Because of the
issues raised by the developer and his attorney at the June 5
hearing, the Board referred the matter to this office for review
of the legality of the required fees . As explained below, we
conclude that the collection of drainage fees and road fees from
MS 108-89 would meet legal requirements .
Drainage Fees
As pointed out in the report from the Public Works Director,
the developer is required by Ordinance No. 88-86, which was
adopted on November 8, 1988, to pay drainage fees to Flood
Control District Drainage Area 57 for two of the lots in MS 108-
89 (Lots C and D) . The drainage fees would involve an initial
payment of about $70,000 (i.e. , $46,500 for Lot C and $23,500 for
2 acs . of Lot D) .
The first issue raised by the developer is that credit
against the drainage fees should be given for the cost of
installing two 54-inch pipes, which were installed in 1972 .
According to Flood Control staff, the two pipes in question were
installed 16 years before the formation of Drainage Area 57 and
were not included among the facilities to be constructed under
the drainage plan. On the map produced at the June 5 hearing,
the pipes are shown by a dashed line, which is the symbol for
existing facilities .
Board of Supervisors -2- June 22, 1990
Under the adopted reimbursement policy for Drainage Area 57,
the Flood Control District is required to reimburse developers
for certain costs of installing facilities shown on the drainage
plan. However, since the two pipes were not included in the
drainage plan, they are not covered by the reimbursement policy.
Assuming that the District did not otherwise make a legally-
enforceable commitment to reimburse the developer for the cost of
installing the pipes or the cost of providing right-of-way, there
is no legal obligation to credit such costs against drainage
fees . We have not been provided with any evidence of a
reimbursement commitment, and Flood Control Staff has informed us
that such a commitment was not made.
The second issue raised by the developer is that he has
already contributed substantially to drainage improvements in the
area and should not be required to contribute further. Stated
differently, the developer contends that all drainage from Lots C
and D will be adequately handled by the drainage improvements
already constructed on his property and that the property will
derive no benefit from the facilities to be constructed under the
drainage plan for Drainage Area 57 .
According to Flood Control staff, the drainage plan for
Drainage Area 57 requires the construction uphill of a detention
basin to restrain water that would otherwise flow down Pacheco
Creek by the developer's property. The drainage improvements
already installed on the developer' s property will only be
adequate to handle the drainage if the detention basin is
constructed as planned . Without construction of the detention
basin, flows down Pacheco Creek by the developer' s property would
exceed the carrying capacity of the channel and substantial
flooding would result on the developer's property. While Flood
Control staff recognizes that the developer has previously made
substantial drainage improvements, the fact remains that
additional facilities need to be constructed to properly handle
the drainage flowing by the developer's property.
Assuming that the information provided by Flood Control
staff is accurate, the developer's property would derive a
substantial benefit from the drainage area improvements . Since
the payment of fees is required for drainage facilities that
would benefit the developer' s property, this would satisfy legal
requirements . (Associated Home Builders etc . , Inc. v. City of
Walnut Creek (1971 ) 4 Cal. 3d 633, 638-640 . ) This conclusion
assumes that the drainage area facilities (e.g. , detention basin)
will actually be constructed in a timely manner and that the
costs of such facilities have been estimated with reasonable
accuracy.
Flood Control staff has explained to us that the fee
schedule and cost estimate for Drainage Area 57 assume that all
development will pay its proportionate share of the drainage area
Board of Supervisors -3- June 22, 1990
facilities . Should drainage fees be used to reimburse a
developer for facilities not shown on the drainage plan (e.g. ,
pre-existing facilities) , or should a particular development be
exempted from paying drainage fees, this would, in effect, leave
the drainage area short of funds . The only way to make up such a
shortfall would be to eliminate part of the drainage area
facilities, or to increase the drainage fees on future
development. Flood Control staff is concerned that allowing a
credit or exemption for this development could also create a
precedent for other developers who have previously installed
drainage improvements not included in adopted drainage plans and
not covered by drainage fee schedules .
Road Fees
In addition to drainage fees, the developer is also required
to pay road fees under the Countywide Area of Benefit, which was
formed by the Board on March 15, 1988 (Ord. No. 88-27 ) The fees,
which have already been paid for Lot C, amount to $1 . 60 per
square foot of gross floor area. The fees are being collected
for major road improvement projects in the Central County Region
(Martinez Subarea) , such as the planned realignment and widening
of Pacheco Boulevard.
The only argument made by the developer against payment of
road fees is that he is already being required to do frontage
improvements and other traffic improvements recommended by a
traffic engineer in connection with his development. However,
these other improvements have no connection with. the Countywide
Area of Benefit (i .e. , are not area of benefit improvements on
major thoroughfares) . Public Works staff has informed us that it
is typical for a developer to have to pay for frontage
improvements and other improvements specific to his particular
development and, in addition, to pay road fees for area-wide
improvements to major thoroughfares . According to Public Works
staff, the road fees paid by Pacheco Properties would be used for
area-wide improvements, which would benefit the minor subdivision
involved here. This meets legal requirements and the County is
.not obligated to give credit for the frontage improvements and
other project-specific improvements to be constructed by the
developer. To give such credit may create a precedent for other
development projects in this and other areas of the County.
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