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CITY COUNCIL AGENDA ITEM NO. 13

Meeting Date:  April 25, 2000

Subject/Title:   Blackhawk-Nunn’s Application For Fee Exception as set forth In Resolution 97-117 and related actions

 Submitted by:   Dennis Beougher, City Attorney

Approved by:     Jon Elam, City Manager 

RECOMMENDATION        

Staff recommends that City Council approve the following: 

(1)   Grant Blackhawk-Nunn’s application for an exception to the East Contra Costa Regional Fee and Financing Authority’s Subregional Transportation Fee (“ECCRFFA Fee”), filed January 1998, pursuant to the provisions of Resolution 97-117;  

(2)   Direct staff to refund, as appropriate, money still retained by the City that is an  overpayment of the ECCRFFA fee to Blackhawk-Nunn; and 

(3)   If Blackhawk-Nunn submits an application for an amendment to PD-27 that limits building permits that pay the ASR can only be used for age restricted units, as defined by Civil Code Sections 51 and 51.3, staff is directed to expedite this application.          

PREVIOUS ACTION

The City Council has approved the major terms of the settlement in  Beinke, Blackhawk-Nunn et al. v. City of Brentwood (Yolo County Superior Court ).   The current tolling agreement between the City and the litigants will expire on May 1, 2000.  Rather than have staff request an authorization to execute a new tolling agreement, staff believes that the above stated actions will negate the need for the tolling agreement as well as set into motion actions required in the proposed settlement agreement.     

BACKGROUND

Blackhawk-Nunn (“Developer”) owns land that has been granted approval for various subdivisions, generally referred to as the Summerset Project, consisting of age restricted residential homes.   The Developer believed that an exception to the fees, particularly the traffic fee, was not roughly proportionate with the impacts created by homes with age restricted owners.   On January 22, 1998, the Developer applied for an exception to the ECCRFFA subregional fees applicable to ASR units, as adopted by Resolution 97-217.   At its February 10, 1998 meeting, the City Council considered the Developer’s appeal and application for an exception to the ECCRFFA fee.  The City Council approved the Developer’s appeal and conditionally approved its vesting tentative subdivision map, subject to a letter agreement.  The letter agreement provided that the City would conduct a study and adopt a separate fee category for active adult senior housing, or ASR fee.   The letter agreement further provided that the East Contra Costa County Regional Fee and Financing Authority (“Authority”) and City would cooperate in the study to determine if the Developer’s requested adjustment and new ASR fee category was justified under the Authority’s rules and regulations. 

On May 2, 1998, in accordance with the letter agreement, City did adopt a new ASR fee category using traffic generation numbers from an ITE Manual.   The Developer disputed the adoption of the ASR fee and protested the fee when it was paid.  

In order to resolve the dispute, the City commissioned a new study, prepared by Fehr & Peers Associates, at the Developer’s expense.    The Fehr & Peers Associates study concluded that each active adult senior housing unit generated 0.44 trips in the p.m. peak as compared to 1.01 trips generated by a single family detached home that is not age restricted.   Developer contends that it is entitled to a refund of a portion of its roadway fees paid since October 22, 1997, based on this study and the letter agreement.   

Based on the Fehr & Peers Associates study, the City Council adopted Resolution 99-179, revising the development fees to create a ASR fee and to have ASR units pay 43.56% of the fees charged for traffic as that a single family residential unit that is not age restricted. 

During the course of these events, the Developer filed a lawsuit against the City seeking a refund and damages for breach of the letter agreement.  In addition, Developer has applied for entitlements to develop the Bacchini/Borello site as a phase of the Summerset Project with 245 units of active adult senior housing and to develop the CBN site in accordance with the existing General Plan and zoning ordinance. 

By adopting the actions provided above, the City will begin the process of implementing the proposed settlement and development agreement.          

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD GRANTING BLACKHAWK-NUNN’S APPLICATION FOR AN EXCEPTION TO ECCRFFA FEE, DIRECTING STAFF TO REFUND MONEY STILL RETAINED BY CITY THAT IS AN OVERPAYMENT OF THE ECCRFFA FEE TO BLACKHAWK-NUNN, AND IF BLACKHAWK-NUNN SUBMITS AN APPLICATION FOR AN AMENDMENT TO PD-27 THAT LIMITS BUILDING PERMITS THAT PAY THE ASR FEE CAN ONLY BE USED FOR AGE RESTRICTED UNITS, STAFF IS DIRECTED TO EXPEDITE THE APPLICATION     

WHEREAS, the City Council has approved in concept the major terms of the settlement in Beinke, Blackhawk-Nunn, et al. v. City of Brentwood and the tolling agreement will expire on May 1, 2000;  

WHEREAS, a new tolling agreement will not be needed or requested if the actions provided in this resolution are adopted;  

NOW, THEREFORE BE IT RESOLVED,

1.         Grant Blackhawk-Nunn’s application for an exception to the East Contra Costa Regional Fee and Financing Authority’s Subregional Fee (“ECCRFFA Fee”), filed January 22,1998, pursuant to the provisions of Resolution 97-117. 

2.         Direct staff to refund, as appropriate, money still retained by the City that is an overpayment of the ECCRFFA Fee to Blackhawk-Nunn; and 

3.         If Blackhawk-Nunn submits an application for an amendment to PD-27 that limits building permits that pay the ASR can only be used for age restricted units, as defined by Civil Code Section 51 and Section 51.3, staff is directed to expedite this application.    

            PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the   2000 by the following vote: 

AYES:         Councilmembers

NOES:        

ABSENT:    

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