HomeMy WebLinkAboutT-4767 - Memo - 8/17/2006 City of
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I 1141"d Public Works Department v
City Hall 209-498-1461 Raymond G. Salazar, P.E.
2600 Fresno Street Director
Fresno,California 93721-3615
December 4, 1997 C E I V E D
Mr. Jason Compolongo D' C J J 1997
c/o WATHAN CASTANOS (;?y FRESNO
575 East Locust, Suite 104 sull_uING & SAr'ETv ERVIUS
Fresno, CA 93720
Dear Mr. Compolongo:
SUBJECT: LETTER OF OCTOBER 20, 1997 WITH RESPECT TO $200 FEE FOR
MAJOR FACILITY SEWER AND MAJOR FACILITY TRUNK SEWER
TRACT NO.. 4639—CASTLEGATE
TRACT NO. 4767—FONTANA DELFINO
TRACT NO. 4808—FONTANA DELFINO PHASE II
TRACT NO. 4676 VIRGINIA COMMONS
TRACT NO. 4606-HARVEST PARK
Thank you for the letter of October 20, 1997 on behalf of Wathen Castanos. Your letter
requests that all future permits and permits pulled within the last 180 days be flagged
as "Paid Under Protest" specifically in regards to the $200 component of the Major
Facilities Charge and the Trunk Sewer Charge imposed on five tracts and tendered
through a list of permits obtained within 180 days from the date of your letter.
Unfortunately, your protest is untimely and, therefore, not actionable for the reasons
noted herein below.
My decision is based on Government Code Section 66020 which in pertinent part
provides that a developer of a residential housing development may protest the
imposition of any fee. But, certain substantive and timing requirements must be met.
The timing requirement for the protest is that the protest must be submitted to the City
within 90 days after the date"of the imposition of the fee or fees". Coupled with that
timing requirement, the developer must provide written notice that expressly states that
the "required payment is tendered or will be tendered when due", among other
requirements.
In this particular instance, your protest was submitted on October 20, 1997. However,
the Major Facility Sewer Fees and the Major Facility Trunk Sewer Fee for each of the
five tracts were imposed more than 90 days prior to October 20, 1997. Attached is a
matrix description disclosing the acceptance date of each phase of the five tracts. The
date of imposition of the aforementioned fees was the date each tentative vesting map
was deemed complete.
Mr. Jason Compolongo
December 4, 1997
Page 2
In addition, the Fresno County Superior Court ruled in favor of the City of Fresno in the
case of Hill v. City of Fresno, Superior Court Case No. 531423-2, to the effect that"for
purposes of a developer's right to protest imposition of a fee, the protest and payment
(or guarantee of payment through reasonable satisfaction of the City) must be sub-
mitted to the City within 90 days of the date that the fee is imposed". In that regard, the
Court expressly ruled that the fee is imposed at the time it becomes an expressed
condition of the map; and that even if payment pursuant to a formal City process, is
delayed or deferred to a later event, it is the date of the imposition of the fee (imposed
as a condition to the map) as opposed to the date that payment is made, which triggers
the legal right to challenge a fee pursuant to Government Code Section 66020.
Therefore, in order to reserve or preserve a right to challenge the fee, Wathen
Castanos was obligated to make full payment or guarantee payment to the reasonable
satisfaction of the City at the time the fee or fees were imposed as a condition of the
map, to serve written notice on the City within 90 days of the date of imposition of the
fees, and to include in letter all of the requirements as set forth in Government Code
Section 66020. There is no record or reference in your letter that Wathen Castanos
met the timing and substantive requirements of Government Code Section 66020.
1 regret to conclude that I am unable to grant your request based on all of the foregoing
analysis. Thank you for your understanding in this matter.
Since2ND
RAYG. ALAZAR
Director
RGS/SEDP/Castanos.Ltr
Attachments
c: Robert Gabriele
Dan L.Trafican
Jim Bier
l thsew
ric Froberg
Wathen - Castanos
Date Date
Final Tentative Tentative Final Map
Tract Phase Accepted Recorded
T-4276 02115191 07129192
T-4606 011227194 07113194
T-4639 Phase V TT-4480 03117192 10105195
T-4767 03105196 07106196
T-4808 lPhase 11 TT-4767 1 03/05/96 1 05120197
Major Facilities Charge
established on 08124172; effective on 01101173
Trunk Sewer _ Charge
established on 07131190; effective on 08131190
Tentative Final Date Final
Tract Map Map Recorded
4480
Phase I T-4480 06/23/94
Phase It T-4540 11/04/94
Phase ill T-4564 11/23/93
Phase IV T-4603 03/30/94
Phase V T-4639 10/05/95
4767
Phase I T-4767 07/06/96
Phase I/ T-4808 05/20/97
SUPERIOR COURT OF CALIFORNIA,COUNTY OF FRESNO
1100 Van Neu, P.O.Box 1628
Frema,Califomia 93717-1628 JC�h
T.171E OF ACTION: SE NUMBER:
N.T. Hill vs. CITY OF FRESNO ' 531423-2
I certify that I am not a party to this cause and that a copy of the attached was mailed first class, postage prepaid, in a sealed envelope
as addressed as shown below, and that the mailing of the foregoing and execution of th' ce 'ficate occurred at Fresno, California:
on (Date): Aug. 23 , 1996 Clerk of Court. BY r
1g Deputy
City Attorney' s Office
Robert D. Gabriele
Attorney at Law
2600 Fresno St.
L Fresno, CA 93721-3602 J
Barbara A. McAuliffe V
Attorney at Law
1690 W. Shaw Ave, Ste. 200
Fresno, CA 93711
Name and'a-c-d"ress continued on reverse side.
The singular includes the plural. This certificate must be attached to the original or a true copy of the document served by mail and filed in
the action. If the copy of the document served by mail does not bear a notation of the date and place of mailing,an unsigned copy of this
certificate must accompany the document served by mail.
CLERK'S CERTIFICATE OF MAILING
SCCL%000466 CCr 1013; 1013a
I 2R531423 . jf/pn
2 L
3 AUG 2 31996
FRESy-.: —v6TY SUrr:%..n COURT
4
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
9
N. T . Hill, a California ) No. 531423-2 Dept . 53
10 corporation, dba R.J.Hill, )
11 Plaintiff, )
RULING ON DEFENDANT' S IN
12 v. ) LIMINE MOTION REGARDING
FAILURE OF PLAINTIFF TO
13 The City of Fresno, a municipal ) COMPLY WITH GOVERNMENT CODE
corporation, ) SECTION 66020 (a) (1) AND
14 ) (a) (2) (A)
Defendant . )
15 )
16 I . Facts
17 Government Code section 66020 provides in relevant part,
18 as follows :
19 " (a) Any party may protest the imposition of any fees
20 . . . or other exactions imposed on a residential housing
21 development by a local agency by meeting both of the following
22 requirements :
23 " (1) Tendering any required payment in full or pLovidin:
24 satisfactory evidence of arrangements to ensure performance of the
25 conditions necessary to meet the requirements of the imposition.
26 " (2) Serving written notice on the governing body of the
27 entity, which notice shall contain all of the following
28 information:
CDUNT: :F FRESNO 2RS31423.JT
Fresno, CA
1 " (A) A statement that the required payment is tendered,
2 or that any conditions which have been imposed are provided for or
3 satisfied, under protest . . . . "
4 On January 17, 1995, the Fresno City Council approved
5 Resolutions Nos . 95-15 through 95-18 and Ordinance 95-4 imposing
6 fees and other exactions for the installation of water filtration
7 equipment at wellhead in the amount of $1, 416. 00 per unit.
8 Hill submitted a subdivision map to create "a
9 residential housing development, " namely, Golden Dawn, a planned
10 development of 449 single family homes on approximately 109. 6
11 acres of land located in the City of Fresno . Effective March 18,
12 1995. "a local agency" (the City of Fresno) imposed the above-
13 described fee of $1, 416.00 per unit upon Hill' s development
14 (subsequently reduced to $1, 024 .00 per unit) , and imposed other
15 exactions .
16 Hill filed its complaint March 28, 1995, and met one of
17 the requirements of section 66020 by protesting payment of the fee
18 by letter dated April 28, 1995. The section 66020 protest was
19 submitted in a timely manner, that is, within 90 days after
20 March 18, 1995.
21 In pertinent part, the letter of protest states as
22 follows :
23 On January 17, 1995, the City Council approved
24 resolutions No. 95-15 through 95-18 and Ordinance 95-4 prescribing
25 wellhead treatment fees for such projects in the amount of
26 $1, 416. "
27 "Please consider this letter a protest of the
28 imposition of such fees . . . pursuant to Government Code section
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Frg3G7, CA -2-
1 66020 for the following . reasons : (thereafter setting forth five
2 reasons] . "
3 No fee was tendered with the letter . Evidence of other
4 satisfactory arrangements were not made. No written statement was
5 submitted representing that these requirements had been met. Hill
6 admits it did not pay the fee until June 1966--more than a year
7 later. Whether the fee was paid under protest is disputed by the
8 parties, but is not relevant to the outcome of this motion.
9 The City of Fresno (City) asks that this Court find that
10 petitioner failed to meet the requirements of 66020, and
11 accordingly a judgment should be entered for City and against Hill
12 for failure to exhaust this administrative remedy. The Court so
13 finds and so orders .
14 II . Failure to Comply with Section 66020
15 Hill argues that it was not required to pay the fee at
16 the time of the protest because the fee was not a "required
17 payment" as provided in section 66020 because it was not yet due .
18 Such a construction of the language of 66020 would render
19 meaningless the language under subsection (a) (1) mandating the
20 tender of payment in full = making other satisfactory arrangement
21 as a condition of protest. That is, assuming arguendo, that the
22 payment was not yet due and thus not "required, " the statute
23 provides that its mandates are met by either tendering payment "or
24 providing, satisfactory evidence of arrangements to ensure
25 performance (Emphasis added. ) In short, if the payment is
26 not made (arguably because it is not yet due) , then satisfactory
27 arrangements must be made. One or the other requirement must be
28 met . Petitioner met neither.
C0171iT: ERESNO 21k531423 JF
Eros_:. CA -3-
1 In making "satisfactory evidence of arrangements" the
2 developer might offer, for example, to deposit the funds into an
3 escrow account with instructions ensuring payment in a manner
4 satisfactory to the City, or to bond the payment of the fee, or
5 otherwise satisfactorily guarantee future payment of the fee .
6 Admittedly, none of these alternatives were pursued by Hill .
7 It would seem apparent that the word "required" is
8 synonymous with the word "imposed." The subdivision does not
9 provide that the payment is to be made "when otherwise due." The
10 word "required" should not be interpreted to provide some type of
11 loophole to tender the fee at some later time. That
12 interpretation would not be consonant .with the clear purpose of
13 the statute, which is that either the fee must be tendered or
14 satisfactory arrangements must be made at the time of the protest
15 Hill argues that the basis of its contention that the
16 fees are not yet due is Fresno Municipal Code section 12-4 . 510D.
17 (Brief of Plaintiff, page 3, lines 19-20 . ) This argument is
18 somewhat misleading. Municipal Code section 12-4 . 510 (D) require.
19 that such fees "shall be payable prior to recordation of any fina
20 subdivision or parcel map . . (Emphasis added. ) It is true tha
21 such fees need not be vaid until .the moment before recordation.
22 Also, however, it is equally true that such fees are payable
23 anytime prior to the recordation. Thus, the mandate of section
24 66020 requiring tender of payment in full at the time of protest
--------------
25 did not compel Hill to pay the fees before they were "due, "
26 because they were "due" any time before recordation of the final
27 subdivision map--it only precluded Hill from paying the fees afte
28 the protest.
COUNTY OF FRESNO 2PS31423.JE
Fcosno, GA -4-
I In conclusion, the clear intent of the section 66020 is
2 that as a condition of a residential developer availing hims elf .of
3 the right to challenge the imposed fee or other imposed exactions,
4 he must tender performance or make other satisfactory arrangements
5 at the time of the protest, even though, absent a protest, the fee
6 might not have to be paid and the conditions might not have to be
7 performed until some later -time.
8 III . First and Fourth Causes of Action
9 Hill argues that under the first and fourth causes of
10 action there is no requirement to meet the mandates of section
11 66020, because 66020 is not applicable. (Hill admits the
12 remaining causes of action are governed by 66020 . [Brief of
13 Plaintiff, P. 7, lines 2-3] ) Hill contends this is true because
14 these two causes of action do not challenge the imposition of the
15 fee, rather they challenge the validity of the applicable
16 resolutions and ordinance. In the language of Hensler v. City of
17 Glendale (1994) 8 Cal .4th 1, 22, the first and fourth causes of
18 action should be deemed a "facial" challenge, as opposed to an
19 "applied" challenge .
20 Petitioner and respondent have cited many cases to the
21 Court in this matter. In the latest round of arguments, these
22 cases were, Balch Enterprises, Inc. v. New Haven Unified School
23 District (1990) 219 Cal .App.3d 783, California Building Industries
24 (CBI) v. Governing Board (1988) 206 Cal .App. 3d 212, Erlich v. City
25 of Culver City (1966) 12 Cal . 4th 854, Hensler v City of Glendale
26 (1994) 8 Cal. 4th 1, North State Development Co. v. Pittsburgh
27 Unified School District (1990) 220 Cal .App. 3d 1418, Ponderosa
28 Homes, Inc. v. City of San Ramon (1994) 23 Cal.App . 4th 1761, San
COUNTY OF FMI.1O 2M31423.JF
Fros:o, CA -5-
1 Marcos Water District v. San Marcos Unified School District (1987)
2 190 Cal .App . 3d 1083, Shappell Industries v. Milpitas Unified
3 School District (1991) 1 Cal .App. 4th 218, Sutco Construction Co.
4 v. Modesto High School Dist. (1989) 2.08 Cal .App. 3d 1220 and Trend
5 Homes Inc. v. Central Unified School District (1990) 220
6 Cal .App. 3d 102 . These cases have been read and analyzed with the
7 result that this Court found no language which provided precedent
8 for the issue at hand.
9 The issue at hand is whether or not a developer of a
10 residential subdivision, who files a complaint within the statute
11 of limitations time frame prescribed by 66020 (120 days) , 66022
12 (120 days) , 65009 (120 days) and 66499.37 (.90 days) , can protest
13 the imposition of fees and exactions by a local agency by a facia:
14 challenge to the validity of the enabling ordinance imposing thosE
15 fees and exactions, without satisfying the mandates of section
16 66020 .
17 This Court holds that section 66020 mandates must be me'
18 because the gravamen of Hill' s challenge, as contained in the
19 first and fourth causes of action, is to the imposition of the
20 fees and exactions . In the alternative, •the Court holds that as a
21 matter of law, 66020 controls under the undisputed facts submittec
22 in this motion.
23 These undisputed facts are set forth in the verified
24 pleadings and affidavits submitted by both parties with this
25 motion. They are that Hill seeks to challenge the validity of the
26 resolutions and the ordinance imposing fees and other exactions
27 upon its residential housing development, that Hill wrote -a lette
28 of protest pursuant to section 66020, but, with that protest, Hil.
COUN17 OF FRESNO 2RS31423.J7
Fresno. CA -6
1 did not tender the fees or performance of exactions or make
2 alternate satisfactory arrangements . In addition, at the time the
3 protest was filed, Hill did not submit a written statement that
4 these matters had been accomplished.
5 Hill contends that the first cause of action simply
6 challenges the legality of the City' s action in adopting the
7 resolution "imposing" new water fees on Golden Dawn under section
8 66498 . 1 Subdivision Map Act (Brief of Plaintiff, page 5) . As to
9 the fourth cause of action, Hill "challenges the water fees" unde
10 Government Code section 66013 (Brief of Plaintiff, page 6) . Thus,
11 the language in Hill' s brief points to the true nature of the
12 challenge, namely, the imposition of the fee and other exactions .
13 Hill argues it is merely challenging the facial validity of the
14 resolutions and ordinance, and thus the requirements of 66020 do
15 not apply. Such an argument misses the true nature of the
16 challenge. For the sake of argument, it can be assumed that indee
17 Hill is challenging the validity of the resolutions and ordinance
18 But these resolutions and this ordinance are the means, or, if yo
19 will, the legislative vehicles by which the fee and exactions are
20 imposed. Without these resolutions and this ordinance, there woul
21 be no fee and no exactions . Thus, in reality, what Hill is doing
22 is challenging the imposition of the fees and exactions, and
23 nothing more.
24 As stated in Hensler v. City of Glendale ( 1994) 8
25 Cal . 4th 1 at p. 23, "To determine the statute of limitations whic
26 applies to a cause of action it is necessary to identify the
27 nature of the cause of action, i .e. , the `gravamen' of the cause
28 of action. [Citations . ] ` [T]he nature of the right sued upon and
COUNTY OE EF.8SI10 :R531423.JE
Fresno, CA -7-
1 not the form of action nor the relief demanded determines the
2 applicability of the statute of limitations under our code . "' The
3 "nature of the right sued upon" in this case is the right of a
4 developer to proceed with the construction of the residential
5 subdivision, but without payment of the fees or performance of the
6 exactions, or the making of other arrangements, as required by
7 section 66020.
8. As to the first cause of action, the Court notes the
9 following allegations : (1) paragraph 13 alleges that the City
10 Council failed to act in accordance with the mandates of section
11 66498 . 1, and thus the "decision to impose the fees on the Golden
12 Dawn Project constituted prejudicial abuse of discretion . . . "
13 (emphasis added) , (2) followed by paragraph 14 wherein the
14 allegation is that "Hill filed a timely protest to those
15 conditions under Government code 66020 (emphasis added) .
16 These allegations are significant in determining the gravamen of
17 the cause of action, that is, whether the challenge is to the
18 imposition of the fees and whether section 66020 is applicable.
19 Similarly, the language of the fourth cause of action
20 challenges the "imposed" fees (paragraphs 30 and 31) . Also, after
21 stating at length the various errors allegedly committed by the
22 City, paragraph 32 concludes, "Thus the Council' s decision to
23 impose the fees on the Golden Dawn Project constituted a
24 prejudicial abuse of discretion . . . ." (Emphasis added. ) This is
25 followed with the allegation that "Hill has or is in the process
26 of complying with the requirements of Government Code section
27 66022 (emphasis added) (paragraph 33) .
28 This key language points clearly to the gravamen of bot7
COUNTY OF FUSNO 2P.531423.JF
Fr*ano, CA -8
1 these causes of action. Regardless of the form of the action, and
2 regardless of the insertion of other code sections into the
3 pleadings, we return to the fact that, in the end, Hill wants the
4 right to continue construction without payment of the required
5 fees or performance of the required exactions, and without making
6 satisfactory alternate arrangements and to delay their imposition
7 by protesting them.
8 To hold that this is a legally correct procedure would
9 be to permit developers to avoid the requirements of section 66020
10 by simply incorporating the provisions of the Subdivision Map Act
11 (Government Code sections 66410-66499 . 37) or Government Code
12 section 66022, into their complaints challenging fees or other
13 exactions imposed upon residential housing developments by local
14 agencies . Such a holding would totally negate the balanced purpose
15 of 66020 . This section permits, on the one hand, the developer to
16 legally challenge the conditions imposed by a local agency upon
17 its residential subdivision, yet proceed with project construction
18 under protest so that construction loans and other financial
19 commitments may be met on a timely basis . "Before the enactment
20 of this statute in 1985, a developer could not challenge the
21 validity of fees imposed on a residential development without
22 halting work on the development." Trend Homes, Inc. v. Central
23 Unified School Dist. (1990) 220 Cal.App. 3d 102, 111 .
24 On the other hand, 66020 contains specific provisions
25 for the benefit of the local agency. Even though the local agency
26 is prohibited under subdivision (b) from withholding the approval
27 of any map, plan, permit, zone change or license because of the
28 protest, the developer' s payment of the necessary fees and
COUNTY OF FRESNO 2R531423.JF
FrQ34O, CA -9-
1 performance of the conditions are guaranteed. Thus, the local
2 agency is not left in the lurch with a completed project, but
3 without payment of development fees, and without any dedications
4 or reservations, and without performance of other imposed
5 exactions--or any guarantee thereof.
6 Thus, pursuant to Hill' s argument, by the simple device
7 of pleading the above mentioned code sections within the
8 applicable statute of limitations time frame, the developer would
9 be permitted to continue construction without satisfying the
10 requirements of section 66020 . Under such an interpretation of the
it applicable law, one may ask what developer would not invariably
12 protest the conditions imposed by any local agency by the simple
13 device of pleading 'a challenge under the Subdivision Map Act, thus
14 avoiding the requirements of tender or satisfactory arrangements
15 as set forth in subdivision (a) of 66020, and thus delaying either
16 payment or performance, or both, until there is a final judgment
17 compelling performance. The planet Earth could pass through such
18 a loophole. This result would impose an intolerable burden on
19 local agencies .
20 "Protests against the imposition of fees, dedications
21 or other exactions by a local agency on a residential housing
22 development are governed by section 66020 . " Ponderosa Homes, Inc.
23 v. City of San Ramon (1994) 23 Cal .App. 4th 1761 at 1768 . The
24 legislative intent of section 66020 to govern exclusively this
25 factual situation is expressed in its own language in subdivision
26 (d) . That subdivision provides, "Any party who files a protest
27 pursuant to subdivision (a) (requiring tender or satisfactory
28 arrangements] may file an action to attack, review, set aside,
COUM OF FRESNO 2R531423.JF
Fresno, CA -10-
1 void, or annul the imposition of the fees, dedications,
2 reservations, or other exactions imposed on a residential housing
3 development by a local agency within 180 days after the date of
4 the imposition." (Emphasis added. ) Thereafter, "notwithstanding
5 any other law to the contrary, " that party is barred from
6 recovery. The inference to be made from this language is clear .
7 Compliance with subdivision (a) of 66020 is a prerequisite to any
8 action to "attack, review, set aside, void or annul" any
9 resolution or ordinance imposing fees or other exactions upon a
10 residential housing development, regardless of the form of action
11 or relief demanded.
12 In addition, the above-mentioned statutes pled by Hill
13 in the first and fourth causes of action (other than section
14 66020) , are statutes providing general relief; whereas section
15 66020 is a statute which specifically applies to this case, i . e . ,
16 the imposition of fees and exactions upon a residential
17 subdivision. As to the first cause of action, Hensler v. City of
18 Glendale 8 Cal. 4th at page 23, notes that "section 66499 . 37
19 applies by its terms to any action involving a controversy over or
20 arising out of the Subdivision Map Act. " (Emphasis original . )
21 Similarly, as to Hill' s fourth cause of action, we have a
22 challenge brought under the more general or all-encompassing
23 section 66022 . In this respect, the language of North State
24 Development Co. v. Pittsburgh Unified School Dist. (1990) 220
25 Cal .App . 3d 1418 at page 1425 is controlling:
26 "By enacting section 66008 [now section 660201 , the
27 Legislature unambiguously established the specific procedure for
28 challenging the imposition of residential development fees; the
COUNTY OF .-'1iE517O 2A511427.JF
Fr*snc, CA -11-
3
1 more general section 54995 [now 66022] does not govern the
2 development fee imposed. Where a special and a general statute are
3 in conflict, the special stature controls . " Thus, any remaining
4 doubt is eliminated as to whether or not section 66020 or the more
5 general statutes pled in the first and fourth cause of action
6 control.
7 In summary, first, Hill has not complied with the
8 mandates of section 66020, subdivisions (a) (1) and (a) (2) (A) ,
9 because of a failure to provide the required tender and the
10 failure to make other satisfactory arrangements (and the failure
11 to 'provide a written statement that this has been done) . Second,
12 even though Hill contends that the first and fourth causes of
13 action do not challenge the imposition of fees upon a residential
14 subdivision, the specific allegations in those causes of action
15 belie that contention. Third, section 66020, by its own language,
16 indicates a clear and unambiguous legislative intent to govern
17 this action. An analysis of the history and practical effect of
18 section 66020 supports this conclusion. Fourth, should there be
19 conflict between the applicability of the more general statutes
20 (66499 .37 and 66022) and the more specific statute (66020) , the
21 more specific statute governs .
22 Wherefore, judgment in favor of the City of Fresno is
23 hereby granted upon the City' s affirmative defense that Hill
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F9*3o01 CA -1 2
1 failed to comply with the mandates of section 66020 of the
2 Government Code, subsections (a) (1) and (a) (2) (A) as to all cause
3 of action. Defendant is to recover costs .
4 DATED this day of August, 1996
5
6
JOHN F TCH
7 Judg of the Superior Court
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