HomeMy WebLinkAboutMINUTES - 05231995 - H6 BOARD OF SUPERVISORS
FROM: J. MICHAEL WALFORD,PUBLIC WORKS DIRECTOR
DATE: May 23, 1995
SUBJECT: Land Use Permit 2030-94-Appeal of Area of Benefit FeeJEast Bay Municipal Utility District Project
(Orinda Area) \
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
DENY appeal of applicant and GRANT an exception to Section 913-4.204 of the Ordinance Code, which
requires collection of an Area of Benefit fee, providing the applicant executes an agreement with the County
in a form satisfactory to County Counsel that the existing use of the property by the applicant will not
increase'and that any future increase in the use by the applicant will trigger the payment of the area of benefit
fee.
H. Financial Impact:
None if the appeal is denied and an exception and agreement is approved. If the appeal is upheld then
EBMUD will not pay area of benefit fees if they create a future impact, and the County area of benefit
program will lose revenue.
M. Reasons for Recommendations and Background:
The East Bay Municipal Utility District (EBMUD) has two issues with the County Area of Benefit fee; 1)
The fees do not legally apply to the District, and 2)the District is not increasing the number of employees
at the project site. Staff believes the fees do apply to the District and recommends that the fees not be
collected unless the District increases the number of employees at some time in the future. Staff met with
EBMUD on April 27, 1995 and discussed the legal issues and the option of agreeing to pay the fees only if
employees are added to the site. EBMUD, however, declined the option of paying the fees when.and if any
impact occurs and decided to file a formal appeal.
EBMUD has an existing maintenance and operations facility located on their property at the southerly end
of the San Pablo Reservoir in the Orinda area. EBMUD is proposing to demolish their existing buildings on
the site and construct three new structures;an administration building, a workshop/warehouse, and a vehicle
storage building. A comparison of the existing and proposed facilities is sho the next page.
Continued on Attachment: X SIGNATURE:
_RECONIlVIENDATION OF COUNTY ADNIINISTRATOR
_RECONEVIENDATION OF BOARD COIVMTTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON May 23, 1995 APPROVED AS RECOMMENDED x OTHER_
This is the time noticed for hearing by the Board of Supervisors of the appeal by East Bay
Municipal Utility District from the decision concerning the improper assessment of traffic
Area of Benefit Assessment Fee relative to the East Bay Municipal Utility District Watershed
Headquarters Improvement Project. The he was opened and Mitch Avalon of the Public
Works Department presented the staff report. Verna Bromley, 375 11th Street, Oakland,
representing East Bay Municipal Utility District presented testimony. The hearing was
closed and IT IS BY THE BOARD ORDERED that the staff recommendation is APPROVED.
VOTE OF SUPERVISORS
X UNANIMOUS(ABSENT )
AYES: NOES:
ABSENT: ABSTAIN:
RMA:cl
g:\engsvc\bo\ebmud.t5
Contact: Mitch Avalon 313-2371
Orig.Div: Public Works(E/S)
cc: Public Works
Transportation Engineering I hereby certify that this is a true and correct
Engineering Services copy of an action taken and entered on the
County Counsel minutes of the Board of Supervisors on the
CAO date shown.
Community Development-G. Slusher ATTESTED:
Building Inspection DepartmentPHIL BAT H ' O , Clerk of the Board
EBMUD o pervi s and ty Administrator
0
By Deputy
Land Use.Permit 2030-94
Page-Two
J
Building Description Existing Proposed Square Increased
Square Feet Feet Square Feet
Administration Building 3,370 7,642 4,272
Workshop/Warehouse 3,800 5,500 1,700
Vehicle Storage 2,100 3,280 1,180
Total 9,270 16,422 7,152
EBMUD has indicated that the number of employees and vehicles assigned to this upgraded maintenance and
operations facility will remain unchanged. They currently have 23 employees and 19 vehicles assigned to this
site and in the future intend to continue to have no more than 23 employees and 19 vehicles.
The area of benefit fee (AOB) is calculated based upon the increase in the square footage of the various
buildings. We have calculated the fees based upon the most favorable rate for EBMUD, and no fee was
charged for the vehicle storage area. Even though EBMUD has indicated they do not intend to increase the
number of employees or vehicles at the site,the availability of additional space could lead to a future increase
in the use of the facility. The total AOB fee calculated is $18,441.00. EBMUD paid the $18,441.00 under
protest and has appealed the imposition of the fee. A copy of their appeal letter is attached. As part of their
appeal they have provided three lines of argument. Our response to each is as follows:
1. EBMUD claims the AOB fee is an improper special assessment or tax used to defray the cost of
capital improvements associated with their project and that the District is exempt from the payment
of such fees. The District cites several court cases to support their argument. It is County Counsel's
opinion that the court cases cited by EBMUD are not applicable to the payment of the AOB fee for
their project. County Counsel will provide more detailed information separately, describing the legal
issues associated with the court cases.
2. EBMUD argues that the AOB fee cannot be imposed on the district since, in their view, the AOB fee
is not a fee which may be imposed pursuant to Government Codes Sections 6103, 53091, and 66484
or Chapter 913-6 of the County Ordinance Code. Chapter 913-6 is within Division 913 of the
Ordinance Code and provides for the establishment of areas of benefit throughout the County. This
division of the Ordinance Code was adopted pursuant to Section 66484 of the Government Code.
There is nothing within Chapter 913-6 which would exempt EBMUD from paying the area of benefit
fee. In fact 913-6.010 states that"such apportioned fees shall apply to all property within the area of
benefit."In addition, 913-4.204 states"as a condition of approval of a building permit, an owner of
property, any portion of which is located in an area of benefit, shall pay the fee established and
apportioned to that property within the area of benefit pursuant to this division . . . ". It is County
Counsel's opinion that there is no clear evidence in the Government Code sections cited by EBMUD
that would support their position that the district is exempt from paying the fees. County Counsel will
provide more information separately, which describes the referenced Government Code sections in
more detail.
3. EBMUD argues there is no reasonable relationship or nexus between the area of benefit fee and their
project. In support of their argument,they cite the transportation Section of the Negative Declaration
for the project, which states that there are no significant traffic impacts associated with the project.
EBMUD argues that since there is no significant traffic impact, then there is no nexus between the
project and the AOB fee.No significant traffic impact, however, does not equate to no traffic impact.
If EBMUD is adding capacity to their maintenance and operations facility, then there is a potential
for increased use of the facility at some future date. If EBMUD increases the use of the facility in the
future, then there is a traffic impact and a nexus for the collection of the AOB fee when the impact
actually occurs.
EBMUD is correct in that there would be no traffic impact if they do not increase the number of employees
or vehicles assigned to their site. If, however, in the future EBMUD does increase the number of employees
and vehicles, then there would be a traffic impact. Unfortunately the County would have no control over a
future increase in employees or vehicles, nor the ability to collect any area of benefit fees. Staff is therefore
recommending that EBMUD be granted an exception to paying the AOB fee providing they do not increase
the number of employees or vehicles assigned to the site in the future. To guarantee this, an agreement would
be executed between the County and EBMUD stipulating that should EBMUD desire in the future to increase
the number of employees or vehicles assigned to the site, then EBMUD would pay the appropriate AOB fee.
IV. CONSEQUENCES OF NEGATIVE ACTION
Precedent would be established where a project has created additional capacity without ensuring mitigation
of the impacts associated with the potential full use of the additional capacity.
EAST BAY
VERNAP.BROMLE
MUNICIPAL UTILITY DISTRICT Y
♦TTOA.tiE�A;.A.:
March 29, 1995 L U) C
Attention: Clerk of the Board of Supervisors
County of Contra Costa
651 Pine Street, 1st Floor, Room 106
Martinez, CA 94553-1229
Re: East Bay Municipal Utility District Watershed Headquarters Improvement Project
Appeal from Contra Costa County's Improper Assessment of Traffic Area of Benefit
Assessment Fee
To Clerk of the Board of Supervisors:
This letter shall be considered a letter of appeal pursuant to the applicable appeal and/or protest
procedures established by the County of Contra Costa for the improper imposition upon the East Bay
Municipal Utility District ("District") of a"Traffic Area of Benefit Assessment" fee.
In order to obtain the issuance of a building permit to begin construction of the District's Watershed
Headquarters Improvement Project(hereinafter referred to as"the Project")located at 500 San Pablo
Dam Road, Orinda, California, the County of Contra Costa imposed upon the District and the
District paid under protest a "traffic area of benefit" fee in the amount of$18,441:00 (hereinafter
referred to as the "AOB fee"). The stated purpose of this AOB fee is for traffic and/or street
improvements purportedly necessitated by the District's Project. On March 27, 1995, District
representatives attended a meeting with representatives of the County of Contra Costa including Mr.
Val Alexeeff,Director of the Growth Management and Economic Development Agency,and Deputy
County Counsel David Schmidt to discuss the District's objection to the imposition of the AOB fee.
Following that meeting, the District was advised to follow the appeal procedures set forth in Contra
Costa County Ordinance section 14-4.002 et seq.
The District protests and appeals from the imposition of the AOB fee against the District for all of
the following reasons:
1. The AOB fee is an improper special assessment and/or tax purportedly aimed at
defraying the cost of capital improvements allegedly associated with the Project. The District is
legally exempt from the payment of this fee. (San Marcos Water District v. San Marcos Unified
School District (1986)42 Cal.3d 154; Sacramento Municipal Utility District v. County of Sonoma
(1991)235 Cal.App.3d 726.) As reasoned by the Supreme Court in San Marcos Water District v.
San Marcos Unified School District:
375 ELE VEN7m STREET. OAKLAND . CA 94607-4240 . 1510)28701,70 . FAX x510.287.0162
E=
OF r=EC'OF_ JOHN A.COLEMAN . KATY FOULKES . JOHN M GIOIA
FRANK MELLON. NANCY J.NADEL. MARY SELKIRK KENNETH H.SIMMONS -
I
Attention: Clerk of the Board of Supervisors
March 29, 1995
Page 2
"Public entities are exempt from . . . special assessments in order to
preserve the balance in funding established by the Legislature and to
avoid unnecessary administrative costs . . . The rationale behind a
public agency's exemption from . . . special assessments is to prevent
one tax-supported entity from siphoning tax money from another such
entity; the end result of such a process could be unnecessary
administrative costs and no actual gain in tax revenues." (Ld. at
p. 167, 16 1)
2. Additionally, the District protests and appeals from the imposition of the AOB fee
as said AOB fee is not a fee which may be imposed upon the District pursuant to Government Code
sections 6103, 53091, 66484 or Contra Costa County Ordinance Chapter 913-6.
3. Additionally, the District protests and appeals from the imposition of the AOB fee
inasmuch as there is no reasonable relationship nor any nexus between the AOB fee imposed upon
the District and the impacts of the Project. One indication of this lack of nexus is the finding set forth
in the Negative Declaration for the Project approved by the District's Board of Directors on June 22,
1993 and approved by the Community Development Department of the County of Contra Costa on
or about May 31, 1994, which states that there are no significant traffic impacts associated with this
Project. As set forth in the County's environmental checklist, "existing transportation systems or
parking facilities will not be significantly impacted by the proposed Project." (Contra Costa County
Environmental Checklist - page 11). Therefore, because there is no traffic impact caused by the
Project, there is nothing for the AOB fee to mitigate. Thus,there is no nexus between the Project's
impacts and the AOB fee.
For all of these reasons, the District has paid the AOB fee under protest and appeals the County's
imposition of the fee upon the District. The District also files herewith a Claim for Money or
Damages pursuant to Government Code section 900 gt seq. for recovery of the AOB fee paid in the
amount of$18,441.00. If the filing of a Claim is premature while this protest and appeal is pending
before the County, please so indicate.
In accordance with the County's procedure-for the processing of this appeal, we request that this
matter be set for hearing before the County Board of Supervisors at the earliest available date.
Attention: Clerk of the Board of Supervisors
• March 29, 1995
Page 3
Please do not hesitate to contact me at(510)287-0170 should you have any questions or request any
additional information concerning the above.
Respectfully submitted,
vj'-4A f&" na-4
Verna P. Bromley
VPB:pdt
cc: Val Alexeeff, Director, Growth Management and Economic Development Agency
Dennis Barry, Deputy Director, Community Development
Mitch Avalon, Assistant Public Works Director
David Schmidt, Deputy County Counsel
VERIFICATION
I, Dennis Diemer declare :
I am the Director of Engineering and
Construction, an Officer of the EAST BAY MUNICIPAL UTILITY
DISTRICT. I have read the foregoing EBMUD' s Appeal from
Contra Costa County' s Improper Assessment of Traffic Area
of Benefit Assessment Fee and know the contents
thereof and the same is true of my own knowledge except
for matters therein stated on information and belief, and
as to those matters, I believe them to be true .
I declare under penalty of perjury under the laws
of the State of California that the foregoing is true and
correct .
Executed this Z-� day of March, 1995 in
Oakland, California.
Dennis Diemer
I
I
Attention: Clerk of the Board of Supervisors
County of Contra Costa
651 Pine Street
Martinez, CA 94553-1229
Claim for Money or Damages Against Contra Costa County Pursuant to
Government Code Section 900 et seq.
Pursuant to Government Code section 900 et seq., East Bay Municipal Utility District ("the
District") presents the following claim:
(a) Name and post office address of the claimant: East Bay Municipal Utility District,
375 Eleventh Street, Oakland, California 946074240.
(b) Post Office Address To Which the Person Presenting The Claim Desires Notices To
Be Sent: Verna P. Bromley, Office of General Counsel, East Bay Municipal Utility District,
375 Eleventh Street, Oakland, California 946074240, P. O. Box 24055, Oakland, California 94623-
1055.
(c) The Date. Place and Other Circumstances Of The Occurrence Or Transaction Which
Gave Rise To The Claim Asserted: On or about March 30, 1995,and in order to obtain a building
permit for the construction of the District's Watershed Headquarter Improvements Project located
at 500 San Pablo Dam Road, Orinda, California,the County of Contra Costa assessed and the District
paid under protest a traffic area of benefit assessment fee in the amount of$18,440.96. Said fee was
improperly imposed upon the District, a public agency for the reasons set forth below.
(d) General Description Of The Indebtedness. Obligation. Injury. Damage Or Loss
Incurred: On or about March 30, 1995, and in order to obtain a building permit for EBMUD's
Watershed Headquarter Improvements Project, 500 San Pablo Dam Road, Orinda, California, the
County .of Contra Costa assessed and the District paid under protest a traffic area of benefit
assessment fee in the amount of$18,440.96. Said fee was and is improperly imposed upon the
District, a public agency. The traffic area of benefit assessment fee is an improper special assessment
and/or tax from which the District is exempt (San Marcos Water District v. San Marcos Unified
School District (1986) 42 Ca1.3d 154; Sacramento Municipal Utility District v. County of Sonoma
(1991) 235 Cal.App.3d 726). Additionally, the traffic area of benefit assessment fee is not a fee
which may be properly imposed upon the District pursuant to Government Code sections 6103,
53091, 66484 or Contra Costa County Ordinance Chapter 913-6. Additionally, there is no reasonable
relationship between the traffic area of benefit assessment fee imposed upon the District and the
impacts of the District's Project. As set forth in the Negative Declaration for the Project approved
by the District's Board of Directors on June 22, 1993 and approved by the Community Development
Department of the County of Contra Costa on or about May 31, 1994, there are no significant traffic
impacts associated with the Project. As set forth in the County's environmental checklist for the
Project,"existing transportation systems or parking facilities will not be significantly impacted by the
proposed Project." (Environmental Checklist -page 11).
w•:Vmisc\%pb\claimdmg 1
(e) Name(5)Of The Public Employ=(s) Causing The Injury, Damage Or Low: The fee
was imposed by the County of Contra Costa through its Growth Management and Economic
Development Agency, Mr. Val Alexeeff, Director.
(f) Amount Claimed: The District has paid the improperly assessed fee in the amount of
$18,440.96. Jurisdiction over this claim would rest in Municipal Court.
Dated: March 30, 1995 EAST BAY MUNICIPAL UTILITY DISTRICT
OFFICE OF GENERAL COUNSEL
By
Verna P. Bromley
Attorneys for Claimant
EAST BAY MUNICIPAL UTILITY DISTRICT
w:\misc\vpb'%claimdmg 2
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINE7.,CALIFORNIA
Date: May 18, 1995
To: J. Michael Walford, Director of Public Works
Attn: R. Mitch Avalon, Engineering Services Division
From: Victor J. Westman, County Counsel
By: David F. Schmidt, Deputy County Counsel
Re: Applicability of Road Fees to EBMUD Watershed Headquarters Improvement Project
(LUP #2030-94)
Summary: You have asked us to advise you whether the above-named project, which is being
constructed by EBMUD, is exempt from the payment of road fees to the County. As explained
below, we advise that whether EBMUD is required to pay road fees to the County for the facility
in question depends on how Government Code Section 53091 is interpreted. If the plain language
of Section 53091 is applied, EBMUD would be required to pay non-discriminatory road fees
imposed by County ordinance. A narrower interpretation of Section 53091 to require payment
of only those fees required by County building and zoning ordinances would lead to an opposite
result.
Discussion: On March 9, 1993,the Board of Supervisors established the Central County Regional
Area of Benefit and adopted Ordinance No. 93-22 imposing fees pursuant to Government Code
Section 66484 for the construction and improvement of major thoroughfares in the Central County
area. The East Bay Municipal Utility District (EBMUD)has applied to the County for a land use
permit to construct the above-named project, which would involve the expansion of an office/
warehouse/maintenance facility on San Pablo Dam Road. Since the proposed project is located
within the boundaries of the Central County Regional Area of Benefit, road fees would normally
be payable under Ordinance No. 93-22. Based upon the actual increase in floor area, Public
Works staff has calculated a fee of $18,440.96.
In a series of letters and meetings, EBMUD representatives have objected to payment of the road
fee and have claimed that EBMUD is exempt from payment of the fee pursuant to Government
Code Section 6103.7 and certain case law (San Marcos Water District v. San Marcos Unified School
District(1986) 42 Ca1.3d 154; Sacramento Municipal Utility District v. County of Sonoma (1991) 235
Cal.App.3d 726). To avoid delaying the project, EBMUD has obtained a building permit by
paying the road fee under protest. Following payment of the fee, EBMUD filed a formal appeal
with the Board of Supervisors, which has been set for hearing on May 23, 1995.
Memo to R. Mitch Avalon
May 18, 1995
As.explained to EBMUD representatives at a meeting held on March 27, 1995, Government Code
Sections 6103 and 6103.7 do not exempt EBMUD from payment of road fees. Those sections
provide exemption from certain fees charged for "the performance of any official service."
However, the road fee in question is not charged for the performance of an official service by the
County, but rather is charged for the construction of regional road improvements. (40 Ops. Cal.
Atty. Gen. 15, 20-21 (1962).) Therefore, Sections 6103 and 6103.7 do not apply here, and they
provide no exemption to EBMUD.
As an additional ground for their appeal, EBMUD relies on the San Marcos and Sacramento cases
cited above. The Sacramento case is not applicable because it involved the imposition of a tax,
not a fee or assessment. The San Marcos case, by contrast, involved the imposition of a fee—a
sewer capacity fee to defray costs of capital improvements. In that case, the California Supreme
Court held that fees collected for capital improvements are special assessments and that public
entities are subject to the payment of such assessments only when the Legislature so provides.
(42 Cal.3d at 164-165.)
Given the court's decision in the San Marcos case, the road fees collected by our County may be
treated as special assessments, because they are used for the purpose of making capital
improvements. In that event, road fees could only be collected from EBMUD if the Legislature
has so authorized by statute. The only potential authority that we have been able to locate is the
following language, which appears in Government Code Section 53091:
"Bach local agency required to comply with building ordinances and zoning ordinances
pursuant to this section . . . shall be subject to the provisions of the applicable ordinances
of a county or city requiring the payment of fees but the amount of such fees charged a local
agency . . . shall not exceed the amount charged under the ordinance to nongovernmental
agencies for the same services or permits. Building ordinances of a county or city shall not
apply to the location or construction of facilities for the production, generation, storage, or
transmission of water, waste water, or electrical energy by a local energy."
Based upon the information that we have been given, EBMUD's project does not fit within the
exception referred to in the last sentence of Section 53091 and is subject to County building and
zoning ordinances. (City of Lafayette v. East Bay Municipal Utility District (1993) 16 Ca1.App.4th
1005.) In a situation like this, where a local agency's project is subject to County building and
zoning ordinances, Section 53091 provides that the local agency (e.g., EBMUD) is also subject to
applicable County ordinances requiring the payment of fees, so long as the fees are charged at
the same rate as those charged to nongovernmental agencies. From the plain language of Section
53091, it would appear that EBMUD is required to pay the non-discriminatory road fees imposed
by Ordinance No. 93-22.
-2-
Memo to R. Mitch Avalon
May 18, 1995
An argument could be made to more narrowly construe the above-quoted language in Section
53091 to require payment of only those fees provided in building and zoning ordinances, such as
permit application, plan-checking and inspection fees. However, such a construction would make
the above-quoted language useless or surplus, in that public entities, such as EBMUD, are already
re4uired under other statutes to pay County fees for inspection and plan-checking (see
Government Code Sections 6103.6 and 6103.7). Such a narrower construction would also appear
to conflict with Sections 6103.6 and 6103.7, in that those sections exempt public entities from the
payment of permit application fees, whereas Section 53091, as narrowly construed,would require
the payment of such application fees. Normally, a construction that would render part of a statute
useless or that would conflict with another statute is disfavored.
Section 53091 has been in force since 1960 and it could have been cited in the San Marcos case.
For whatever reason, Section 53091 was not discussed in the San Marcos case, and we have been
unable to locate any case in which a court has discussed the meaning of the above-quoted
language in Section 53091 relating to fee payment. We also have not been provided with a
legislative history of Section 53091, including the amendments in 1977 and 1984,which might shed
some light on the language in question. As a result, the most we can now say is that whether
EBMUD is required to pay road fees to the County for the facility in question depends on how
Section 53091 is interpreted. If the plain language of Section 53091 is applied, EBMUD would
be required to pay the non-discriminatory road fees imposed by Ordinance No. 93-22. A narrower
interpretation of Section 53091 to require payment of only those fees required by County building
and zoning ordinances would lead to an opposite result.
DFS/
cc: Val Alexeeff, Director, GMEDA
Julie Bueren, Transportation Engineering Div.
-3-