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CC - Developer Fees - Box 065PP 77 TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL 46 FROM: FRANK G. TRIPEPI, CITY MANAGER DATE: SEPTEMBER 1, 1987 RE: DEVELOPER FEES Pursuant to Councilman Imperial's request, staff has looked into the possibility of imposing developer fees. As stated in the attached City Attorney memo, developer fees can be imposed provided that a specific impact has occurred, such as traffic, parking, etc. There must be a reasonable need in order to justify the imposition of such fees. Staff identified in a recent mini-mall study that off-street parking was one of the major problems associated with these types of commerical devcflopments. With tough development standards, including off-street parking, these problems could be resolved. Developer fees affect all projects regardless of the amount of off-street parking provided. Attached for your review is related information regarding this issue. Attachment GDC:op/8 cc9-8 COUNCIL. AGENDA SEP 8 1987 ITEMNo. 11-8 WALLIN, {'CRESS, REISMAN, PRICE & DILKES LAW OFFICES 2800 TWENTY-EIGHTH ST4EET, SUITE 315 SANTA MONICA, CALIFORNIA 90405-2934 TELEPHONE (?131430-9S8P. FAX 213 4300 5 06 TO: PLANNING DIRECTOR FROM: CITY ATTORNEY ){!/1^ RE: DEVELOPER FEES 1 DATE: August 29, 1987 At a recent City Council meeting, Councilman imperial suggested that the City consider "developer fees". Since that suggestion, you and I have had several discussions concerning the matter. Fees targeted to some specific impact have been authorized by the California courts. For example, San Francisco has an ordinance which requires new office buildings to pay a hefty transit impact fee. If Rosemead has a definitive impact such as traffic, transit, municipal parking, etc., there are ways to impose such fees. There are several problems with such fees: 1. They must be utilized only for the purpose specified, otherwise they are a tax, subject to voter confirmation. 2. Such fees are likely to impact "good" projects that are to be encouraged as well as some of the marginal projects that are discouraged. I believe that you and I agree that the best way to insure that we have quality developments in the City is to establish tough development standards, particularly in parking, and then adhere to them. That will tend to sort out the projects on the basis of available land. As you are aware, much of the development in the City is occurring on a "cash" basis from overseas sources. The placement of a development fee on such projects would not significantly deter marginal development, in my opinion. Please contact me if this matter requires further exploration. f1ID • pail, ~ Pp Ilnl Iron, Friday, Jonaaey 30, 1987 3 1 } 9 +i THE COURT It is ordered that the opinion filed herein on December 19. 19x6, be maiifnii in The ellnecing parluml rs: AT page H, line 9, insert after the sentence ending "Ihe ulllmalc result." and before lbe heading, the follow- ing new paragraph: In expressing The view that appellate courts often should nut feel compelled to defer In trial court de'ermena- (,I,, especially of the first two crilerin In Ihe seelin. ID21.5 Is< we are only elahnrnling the sentiment express ,it in the rstinale of WilkersIn v. City of Plarentin free) JIB Gi. App 3d 435. In that case, the Fourth District , reversed a lower court and itself decided the prev.nding plaintiffs were, entitled to an avoid of attorney fee under section 101,5 (but with the amnunl, of course to h deter mined by the trial court alter remand.) In jnslif- ving its derision to determine whether the section 1021 5 crilerin had been met instead of defers Ing to the trial court, the Fnurlh District held: "Ion appears to on that where the en- tire basis for The decision Ion the attorney fee issue) is what Or men dart in This nPininn, ,I zhmdd make the decision that it qualifies as a case for granting of fees." (118 Cal.App.3d at 445, italics added.) At page 16. line 15, alter the sentence ending "All porlanl public right' "add the follow'ing'. The right In- lnrmed in this case falls within the range of significance found sufficient to warrant attorney fee awards in earlier eases. (SM. 0 g.. Daggett v. Gales. 1902. 32 Cal. 3d 129 !Supreme Court reversed denial of alinrney for award where right enforeced was that police officers cannot No demoted by City of Lea Angeles N9lhout an administrative aplleall; People ex IL Seel (teach entire Officers Also. I. City el Seal Reach 11:84) 36 CaLM 591 (without remand to trial court, Supreme Court reversed the lower court on its decision on the substantive issue and ruled courT- awarded fees must to given to several public employee unions where appellate opinion enforced right bar city mu t "meet and confer" before proposing city charter amendments which would have Punished city emPlnyecs who participated in a strike): American Federation of Lahr I. Employmenl Dec. Dept IIW9) M CdlApp,3d 811 (court award of fees to large nationwide unions ruled op- prapriate where courts held unemployment insurance payments mast be continued while recipient aplxals on favorable ruling).) The petition for rehearing is denied. REAL PROPERTY City Development Fee Ordinance For Transit Purposes Is Valid Cite as 87 Daily Journal D.A.R. 400 jo,,S ER.DING PARTNERSHIP. Pmpnuff-nppdmnt. CITY AND ('OONTY OF SAN FRANCISCO, D,radanl-urspondaR: PACIFIC GATEWAY ASSOCIATES .(DINT VENTURE. PIam4D.Appellant, CITY AND COUNTY OF SAN FRANCISCO. oelendanLleespondenL CROCKER NATIONAL RANK el al. CITY ANT) COUNT' OF SAN FRANCICO. Defeod-t-HIlpnndent. Nos. Antivi A033443 &T,er Cl Nos 7M%95 789.1.5, 790 l California Court Of Appeal First Appellate District Division Five Filod January N. Pits? W, hOid that the San Framism Tra,1R Impel DrvIbP- meal Fee Ordin 1'I. it Tom the applied out ac- t'dv as to Pacific Gateway A s Its JOIST Venture. CrMker National Back and Crock properties. ' Ice In this consolidated IF T,11. fl ]toss Budding parocOmpi Thereafter TONS funding plinllf) and plain lifts Pacific Gateway Associates Joint Vonore (Pacific), Crocker Nxtiouni R. nk ICNID, and Crocker Properties. Inc., (hereafter collectively Crocker plaintiffs) appeal from a judgment uphobdug the von P ht, of San Francisco's Transit lm,,t Dmelnpment FCC Ordinance TD Ordinance). They ,MJMuJ that the trial court erred (1) trcaltng the Or dam e1 a, n dmcmpment fee and (2) in finding that if,, Or i inanee could not be successfully Ihaliroged under article XIII A and X11111 of Ihe California Cou,juStion or the equal protection and due prucess clauses Of the federal and stale Constitutions. I In May mat Ihe (7dy and County of Son Francisco (city) acted Orliemce No. 221-9) "lilo order to Ix able to Pro, vole public transit services for new development in the downtown area.. " The Ordinance requires that the n ofmdbtbngsIMi crindowntown San Fnot'It rlnrh e contain' yd. Iryd err Pr have not Pete Pit a6i(dineWire I I or adeal fin In or r sit nine to the elfmtivn into arn Of of the Ordinance pays transit le, cacan- dlllon or issuance of a cerltfhSh, of completion and occupam cy. The fee is designed to provide revenue for the San Fran- cisco Municipal Rallody System (Mcm) In Offset the am toi,c ed increased crs6 to xcenm ord-I the new elders dur- Ing peak common, hours generated by the, construction of w office sparr in [he downtown area The San Fra neisco Bmed or Sm,,visms fixed the fee to he paid by property comers It a maximum of E5 per square fool of new office spare., Under the, Ordinance The transit fee is payable by each building's owner in a Jump Bonn al the end or emeStmetim, Alternatively. Ihe owner may chase leamnrlixe the forever several ),cars and make inslallmenl pat rouLS. The amnunl of [he fee assessed Is to Cover memased 0 auxin crisis which the city prrdcl, will he generated over the 45-year Ilfe of each office building. There is no provision for adjusting the mount owed by each uwner depending ml (lie actual "life" of the building or actual transit operation costs. The hoard of Supervisors may, however, adjust the $5 perSquare -foul figure for future developers depending on changing MndAias. In May 1991. Russ Rui bring pia inter filed a class action suit against Ihe city to have the, Ordinance declared invalid on its face and I. its application. Another suit was filed against the city by Crxker plaintiffs who additionally challenged the renovative application of Ihe Ordinance. The two cases were consolidated for trial of common issues. The Trial court entered judgment in favor of the city, fin- ding that The Ordinance was not a lox and was a 'dehalahlY rational" development fee. It also found that The retroactive appiicaliun of the Ordinance as against the Crocker plain lifts Nos Ieg Appeals were taken se been colimn the Trial court's jndgm enis and the casts have hen consolidated for appeal before this court 1 Both sets of plaintiffs argue that the transit impact fee is col a legitimate development fee hecau,e the Is,per- ,,me,fout fee exceeds the reasonable cost of the neuron M services to h pinvided, and thus is a "special ma" which most be approved by two-thirds Of the doefinne pursuant to Califmnin Comstitulion arndr XIU A, BMITnn 4(hrreafter f Inferred to as section 4). Whether the transit In is n develop' 1 eelfee aspecial tax Isanissueoflaw. IScegenerally; Iimkendari I. denl San Marion (IA96) 42 Cats 311491, 497. ) Typica Try, a development fee isexaction To ad, as ones are commonly for the privilege of developing the TO Stich fees are imposed on developers by (Mai gnverm meets in order to lessen lh adverse impact of , id population generated by the evelopment. (5ee Candid Car Inc. v. Grossanned eral impact Unpin High Schema Hiss. ad UR Uposne t99 efc.. I c. I. CRY of Crick AFM rioted Ilome G Rild) rrs etcUrt¢or f ,are fee iI4 IdGhcinn or land for park k space t fee in lieu tCal h,rw I This isna of DO munsubjMLSOfI (IS line Power const In in m 1gldati (See rM.t Trent Mi1r n Ine.v.Citytit (lxn entity 1 1 that 317,315 1 'Tho Position of the public licentity is that This arrangement is only ly fair, . The developer has and burden on created anew, cumulatively overwhelming, Ioei government cili'pcs, and therefore h he should offset the add'' d ro,mport il'lil r of t uctchom (them hl'agency ivy a i .fs, of lde(' p . en an payment of d teas, all needed ' I. B the new gr e. , . * " Ub and d services required by the new decelopevelopmentnt fe o which te 's is how doe1 s the trarSA nsit fee The questin imposed here differ from a a "special tax"wcn [lie mom Ing of seeOOn m4 'The itt,, y blurred bc Lr eawomle a ( a tax and other ex- aw ferent coour riffcrn- in ntItex(Sts. Our Supreme fic tto. taxes a 'ouri has s dnbo png in n different fie "specii tai' in an ac "lolaced Icvicd for Mci nd to fee purpnne or general th than a le vv purred in our (City naod to f Sa for emmcnml 12 CSI. rc - (City and r nnty Thencral of San n.(,,, Firnmkin . Caw vPoell11MRp22 47, 5 ItJIll 01 1. t ad al roan I. ('ity of San Marina srrlr 42 Cu must reaching This conclusion, the court t held that the term m mull The von,tTuNI tresnlvrrsnas Ter limit the sib [bus to which fix, -le_d d, r e.u1 t 2 Cal applies (Cllya IC ty SF hiSao and 11 (IMG) n (aLar 47, 1T1)oeourlreaF Frt l reasoned That asiridfiu lace.'tine was r was necessary because the try a rajre of the that the tax must be approved boved by y a supe snpermapri ty ly n the elect ri ee in While the he Ordinance in t this sloe Pros plod aterfena spa d,lu,us by cost of on Tureens al ridorsl-t caused development pmentmenl - TTIhe I ryiry in wwffirc ma lh-t ar.litit dfintiou i rail 11 makes the [Odran s,,a hlOre-n t (3 t(tax, of mrs only. TO Te the transit f strict wet t'urn's the pu,cs, hwhether pnrpnse hund nd sedia 4 sing the sled mlerprem(ion ap- prarth announced in Farrell. A California Ceal prlp article Sit A was rllacled to Pro, vide effect reel property l relief - "I S Iecitons 1 a ad 4 ad 4 combine to place reslndi OS upon the io of arch ra, tares. ICdy and (.on my of San Francisco v s Farrell. alp. 499. ) In Trrmmal PlaraCorp, CID, and County of San Fran- cisco U9015) 177 CSLApp ad INC the city enacted an ordinarce which required residential hotel owners to make a one for one replacement of residential units which were lost lhieught conversion or demolition as a condition for Obtaining a building permit. In distinguishing this vxa„ment from a special tax the court emended that "fee nol exceeding the D d., at p. MI6.) Oxnard, supra, 114 Cal.App.ad al P. 328,) Developers have been required to pay Inc sheen, sewers, parks and lightsis a condition den the pnvillge of developing a InoticaUr Parcel. There is little difference between Ilaae public imprmGnrnls and the vocii 1. I I Ihe PON r from I he increased! ireresil sir vices paid for by the Imusi( fee I. all loam Ores, there is an increased bums en no huhlic improvements by virtue of the development. Moreover, such a construction .111 col lerbec with giving voters effective properly lax relief, non central Poulson hrned maid, XIII A Of the California Con- siitutim. (City and County of San F'renme. v. F'-Mil. supra. 12 Cal.lul St P. 56.) In Reaumnnl brceslo,, v. Ilraumnnb('berry Valley Water UpsL Them) 165 CaLAPQ.311227, the reviewing CmR' had to dccidewhrlhrr n"facilities fee" imposed for connfe- lion to the local water district's system was a special lax. 1'hr developer argued that the fee e.Mvded the reasonable cast of anshudinn of be water system improvements To quned by the development and is a special (ax. The review Ingcourt agreed. ltrelied an (:evernmenl Code. cetion SMn6- Thal section was Part Of legislation Cnacted to implement article Xor A Of the California Consl ilulion. Thna sedan Pro aides: "AS used II this no arlide r I tai shall oat indnde on f on Is n ion ~ Win the 6urvlre nr regummri rbvhi, Inc which Ihe fee 1 I, IT ris IT and Which IS Ton ev..Afor gearai reVcone Fur- / poses." s. IW9r e""' mndue t.1 11 ff~c F Pk tai IN m sustain their burden of prortng l ctthe mellitus lee did not 11,1111 the reasonable valve .11 he s1r coM, for,Inch it was curveted. (Beaummint IS, lows. copra. alp. i?3B) I,vs Oder akin Unlike Reaumat investors, thy' v numencia§tgdjss and has held Public hearings to determine lh-e- artsnable cost of the increased lransd_erv11.'Ri` end the cilYMrM~1aTa~o`prolttT a~ and calls of tonsil servi,ls. Similarly. in.t. R'..Innra ('nn'Pamirs - v. City of San the benefit assessment" an NIvIloped t pN i Prmo prt, "faninglriari of obtaining building unde Pearty a as a financedvarious which lac Rally financed v various Publie c services vicmvpces b built in serv e the These I IT public ipd Rincluded by development. lThese public mproverovemen nt included sewe, er, street ' and Iranspnr- win, s rvpcrs.amnng others. The url. rnnrlndrd this was n t +h I s` rte.'' pnnpmPlr- tyw)-d as bem'Ited by the llbllrf 1'f Dq_aI, 754.1 Whether wr term the transit ill in special assessment m a dewlopm,m f,e, as applied in This cmdext Ihe charge Icvicd is directly' related and Ipmilyd lO the cool of increas- edmunicipal trnnspnrmlion servirrs engenrlerrvl by the ol s liculanlevdopmentgnd it is cal a "spxrial tai' (or purMSas or section 4. ' It '}nM'ml Plaintiffs also contend Ihe' Ihe basil fee on of mS,v within the mmnmg If California Cmxtiluton nde XIII It noel le subject to it,, limitations. "flat prnvesino 'laces limits it The growth of appre,imstse, at both due 'Into and local government levels, and ngwres well mom ons, Tom, to he returned by a revilon Of the tax rate er fee schedules within the next two Mall, (Cal. cast out BUT R. § 2: see l:nunly of Plart, I. Coin (C) 113 (:i.AP11 36 443 AA (The, "I pl - d fTaxes subject', the limitation I F da,'BitL eland the lrM N, FenColit, of government from 0) regulatory licenses, user charges. and user foes to the extent that such proceeds exceed the costs reasonably bone by such entity in providing Ihe regnm lien, product or urvire...." (Cat Cmisl., nit X111 IT § e hr! (JJ Plaintiffs claim that the Transit fee imposed by Una Ordinance is a user charge or lee abject to the l'nnita ton We dpsag"o The'mnsl lee' ta.rc. Il 'O nthen ing M SMT.no 4 and Isar within Iheanlt fCaliforniaConstilu - her, article XIII A, and therefore is not ]he hour of cruuel intended IO So Mnlmllfd by mtide XIII D of Ihe Cal Ton rnslihrt' --1 iD"tad as Metric lon IT dC rnl of .cal mO_rly, h¢ d a fir n aloe' gh FOr Iheer ,ca-heI if .acs r ) M ed n with! iTO at I meaning of ore Ic hIII B (See • I ( 1, 1 nun v, .uOi JOB) 146 Cal App.Sd 320, 314335.) II A Plnindiffs claim that the Ordinance discrindalrs mismnst owners of office buildings constructed after 1979. demdng them aces, to government hnehLS on the same bowing as owners of pro-1979 buildings, and that it arbitrarily single' our commercial buildings while giving rdail stones in Ilm downtown area a free ride. Tinder an equal prof etionanalyses, the transit fee as an economic regulation is pM hued to toccrebtut'onal.(('a. did Enterprises Inc v Grossmonl Union High School Dill.