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Home My WebLink About6/16/2020 Item 12, Dietrick Council Agenda Correspondence City of San Luis Obispo, Council Memorandum Date:June 15, 2020 TO:Mayor and Council FROM: Christine Dietrick, City Attorney Markie Jorgensen, Assistant City Attorney VIA:Derek Johnson, City ManagerDJ SUBJECT:Alternate Resolution for Item 12 -Review of a Protest for Payment of Encroachment Permit Fees, William Walter, 679 Monterey St. For Item 12 on your June 16, 2020 agenda, staff have drafted an alternate resolution for your review.Changes from thepreviously published version are in redline. Attachment: Alternate Resolution for Item 12 -679 Monterey RESOLUTION NO. _____ (2020SERIES) ARESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA,DENYING A PROTEST OF PAYMENT OF PERMIT FEESFOR ENCROACHMENT PERMIT ENCR-0780-2020,AND DENYING A PROTEST OF A CONDITION OF APPROVAL REQUIRING THEINSTALLATION OF A DECORATIVE PEDESTRIAN LIGHTING FIXTUREAS REQUIRED BY ARCH-1236-2017 WHEREAS,Mr. William Walter, owner of the property located at 679 Monterey Street, filed a planning application for the construction of a new studio dwelling unit behind an office building, and the addition of a deck to the office building on the subject property(“Project”); and WHEREAS,City staff reviewed the application, determined that the Project did not require review by the Architectural Review Commission, and responded with a decision letter, dated August 1, 2018,granting approval of the Project subject to specified Conditions of Approval as stated in the decision letterassociated with ARCH-1236-2017(679 Monterey); and, WHEREAS,the project’s Conditionsof Approval required the construction of complete frontage improvements, including new curb gutter and sidewalk,installation of a decorative pedestrian light fixture,driveway approaches, atree wells, and other miscellaneous improvements within City right-of-way along the frontage of the property; and, WHEREAS, MunicipalCode Section 17.126.020 provides that appeals of a decision of any official body must be submitted withing ten (10) calendar days of the rendering of a decision which is being appealed. Pursuant to Municipal CodeSection 17.126.020,Mr. William Walter had ten (10) calendar days to submit an appeal regarding any of the Conditions of Approval identified in the City’s August 1, 2018 decision letter, including the condition to install a decorative pedestrian light fixture, but no appeal was submitted within ten (10) calendar days from August 1, 2018; and, WHEREAS,work within City right-of-way requires that the contractor performing the work obtain an Encroachment Permit from the City Public Works Department; and, WHEREAS, an Encroachment Permit, number ENCR-0780-2020, for work to be performed for the Project in the City right-of-way was issued on April 27, 2020, with a calculated permit fee in the amount of $2,036.22; and WHEREAS,the City’s Master Fee Schedule is reviewed through a Fee Study which is conducted approximately once every five years, most recently through a Council Study Session on February 21, 2017, and a Public Hearing on April 18, 2017; and WHEREAS,the current Master Fee Schedule isbased on the 2017 Fee Study, and updated annually, most recently through the adoption By City Council of Resolution No. 11026 on June 18, 2019; and, R ______ Resolution No. _____ (2020Series)Page 2 WHEREAS, Encroachment Permit fees are included in the current Master Fee Schedule; and, WHEREAS, the California Supreme Courtheld in BarrattAm. Inc. v. City of Rancho Cucamonga(2005) 37 Cal.4th 685 that fees imposedto defray administrative and enforcement costs of a local regulatory program, such as building permit fees, plan review fees, and inspection fees, do not constitute “fees imposedon a development project” that are subject to protest under Government Code Sections 66000 and 66020 of the California Mitigation Fee Act. WHEREAS, Municipal Code Section 4.56.020’s definition of “impact fee” mirrors the definition of “fee” under theCalifornia Mitigation Fee Act (Government Code §§ 66000–66025) that wasanalyzed by the California Supreme Court in BarrattAmerican Inc. v. City of Rancho Cucamonga(2005) 37 Cal.4th 685. WHEREAS,onApril 24, 2020, Mr. William Walter submitted a protest to the City regarding the costof his encroachment permit fee in the amount of $2,036.22and regarding Condition of Approval Number 13 identified in the City’s August 1, 2018 decision letterfor ARCH-1236-2017 (679 Monterey), requiring installation of a decorative pedestrian light fixture; and, WHEREAS,a Public Hearing was conducted during the City Council meeting of June 16, 2020,during whichMr. Walter communicated his items of contention and protest; and, WHEREAS, the City Council of the City of San Luis Obispo has duly considered all evidence, including the testimony of the applicant, interested parties, and evaluation and recommendations of staff, presented at said hearing; and, WHEREAS, notices of said public hearing were made at the time and in the manner required by law. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo, based upon all the evidence presented,that the protest submitted by Mr. William Walter is denied pursuant to the following findings: SECTION 1.Encroachment Permit Fee. The City Council finds that the fee charged for Encroachment Permit ENCR-0780-2020 in the amount of $2,036.22 is an appropriate fee based on the following: a)The established fees for encroachment permitsarenot subject to protest because such feesdo not constitute an“impact fee”/ “fee” under the California Mitigation Fee Act or Municipal Code Chapter 4.56. a)b)The established fees for encroachment permits are determined throughan appropriate public process and are established by Council,based on that process in the City’s Master Fee Schedule, most recently adopted by City Council by Resolution No. 11026 on June 18, 2019. R ______ Resolution No. _____ (2020Series)Page 3 b)c)Thefee for Encroachment Permit ENCR-0780-2020 was correctly calculated in accordance with the City’s Master Fee Schedule. SECTION 2.Condition of Approval No. 13 ARCH-1236-2017 (679 Monterey). City Council finds that the protest of Condition of Approval No. 13 is untimely and invalid based on the following: a)The decision letter approving the Project with conditions of approval, including Condition No. 13 requiring installation of a decorative pedestrian light fixture, was issued by theCity on August 1, 2018. b)Municipal Code Section 17.126.020provides that appeals of a decision of any official body must be submitted withing ten (10) calendar days of the rendering of a decision which is being appealed. The ten-day period to appeal was stated in the City’s August 1, 2018, decision letter. Pursuant to Municipal Code Section 17.126.020, Mr. William Walter had ten (10) calendar days to submit an appeal regarding any of the Conditions of Approval identified in the City’s August 1, 2018 decision letter, including Condition 13 requiring installation ofa decorative pedestrian light fixture, but no appeal was submitted within ten (10) calendar days from August 1, 2018. c)Mr. William Walter’s protest of Condition No. 13 requiring installation of a decorative pedestrian light fixturewas submitted on April 24, 2020, which is beyond the ten-day period allowed for appeals of conditions of approval under Municipal Code Section 17.126.020. SECTION 3.Action. Based on the foregoingrecitals, which are adopted as thefindingsof the City Council,and evidence in the record, the City Council does hereby deny the protest submitted by Mr. William Walter regarding the fee charged for Encroachment Permit ENCR-0780-2020 and the protest submitted by Mr. William Walter regarding Condition of Approval No. 13 ARCH- 1236-2017 (679 Monterey). Upon motion of _______________________, seconded by _______________________, and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this _____ day of _____________________ 2020. ____________________________________ Mayor Heidi Harmon ATTEST: R ______ Resolution No. _____ (2020Series)Page 4 ____________________________________ Teresa Purrington,City Clerk APPROVED AS TO FORM: _____________________________________ J. Christine Dietrick,City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, on _____________________. ____________________________________ Teresa Purrington,City Clerk R ______