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HomeMy WebLinkAbout6/16/2020 Item 12, Walter From:William S. Walter <wwalter@tcsn.net> Sent:Sunday, June 14, To:E-mail Council Website Cc:CityClerk; Dietrick, Christine; Johnson, Derek; Codron, Michael; Amberg, Mark; Marquart, Ben; Guzman, Manuel Subject:WALTER PROTEST HEARING -- LETTER/EXHIBITS/RESPONSE TO STAFF REPORT, AGENDA ITEM 12, JUNE 16, 2020 Attachments:WALTER PROTEST LETTER 2020-06-14_183915.pdf Dear Mayor and Council Members, Attached is my written response to the Staff Report for my Protest Hearing, Agenda Item 12, June 16, 2020, 679 Monterey St. I am sorry not to have completed this earlier, but I received some additional legal arguments after the Staff Report was prepared and the City Clerk worked very hard to provide me additional documents on Friday, June 12, 2020. I am very grateful for the Clerk and Deputy Clerks efforts at responding to my Public Records Act requests which will be determinative of the Protest. There will be some additional back-up materials sent separately. Sincerely, William S. Walter, ATF 679 Monterey St. San Luis Obispo, CA 93401 805 541 6601 805 541 6640 (fax) 1 LAW OFFICES WILLIAM S. WALTER A PROF ES510MAL CORPOPATION TELEPH❑ME I805i S4I-F5E01 THE SELL❑ HOUSE EMAIL FAC'$IMILE [$0S] S41-5640 579 M❑NTEREY STREET WWA1-TER(0)TCSN,NET SAN Luis OWSPO, CALIF'OF2NIA 93401 "After all, if a policeman must know the Constitution,, then why not a planner?" Justice William Brennan, United States Supreme Court Opinion in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, (1981). "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional wayofpaying for the change." Justice Oliver Wendell Holmes Jr., United States Supreme Court Opinion, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, (1922). J 23 1 � .-N�S.� .y. 2: �.:r- '`. i'cyl;K. - .: _ - - - -q i.,t• ?, .. a• F�s;y � i... w� r y .r 4. - x• _ r LAW OFFICES WILLIAM S. WALTER A PROFESSIONAL CORPORATION TELEPHONE [8051 541-5501 THE SELLO HOUSE EMAIL FACSIMILE 1805) 541-8540 679 M❑NTEREY STREET WWALTER@TCSN.NET SAN LUIS 082SP0, CALIFOPNIA 93401 June 14, 2020 VIA (gmailcounciNi),sloeity.org MAYOR AND CITY COUNCIL MEMBERS City of San Luis Obispo 919 Palm St. San Luis Obispo, CA 93401-3 21 S RE: NOTICE OF PROTEST FOR PAYMENT OF ENCROACHMENT PERMIT FEES AND PROTEST OF REQUIREMENT TO INSTALL A "DECORATIVE PEDESTRIAN LIGHTING FIXTURE"; CAL. GOV. CODE SECTION 66020 ASSOCIATED WITH "New Deck and Foundation Repair Permit: BLDG 1143-2018, 679 Monterey St., San Luis Obispo, CA 93401 CITY COUNCIL AGENDA, Agenda Item 1.2, June 16, 2020; Protest Hearing Dear Mayor and Council Members: I am the owner of the "Bello House" located at the above address on Monterey St. I filed this protest on April 24, 2020 pursuant to Government Code Section 66020, and Municipal Code Section 12.04-032 which also applies. This Protest is also filed on the basis of the fundamental constitutionally protected right of citizens to petition their respective governments under the United States and California Constitutions.' There are three suggested remedies which I am requesting be granted by the Council described below. I apologize that these comments were delayed due to additional legal theories advanced by the Staff not included in the Staff Report, and receipt from the City Clerk of many documents requested under the California Public Records Act about other projects and conditions of approval for the removal and replacement of street lights. I wish to express my gratitude to the very hard work 1 Request for Administrative Record is to include all emads sent and copied by City Staff, to and from Walter, including copies to City Staff during 2020. These have previously been sent to or received by the City Clerk, which are incorporated by this reference. CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 of the City Clerk and Deputies in searching for these records which are determinative of this Protest. The Staff Report is based on and fails under a simple but misdirected theory: challenging the conditions of approval should have occurred a long time ago. My response is also simple: the language of the conditions of approval do not expressly or by reasonable inference require me to remove and replace a thirty foot street light and a half dozen other exactions via post hoc, ad hoc, Staff emails. Unlike Staff, I don't think the conditions require me to do the many, time- consuming, expensive public works duties (200+hours of personal time) which staff is ordering me to do in ad hoc, post hoc, ad hominem emails quoted below (for convenience referred to as "Exaction Emails"), piling on one new condition, task, duty and expense after another, which are not to be found in or inferable from the literal language of the approved condition. All this is being done at a time of a declared health emergency and the resulting economic difficulty and stress from the COVID-19 Pandemic! Due process is violated by exaction by email in almost too many ways to list completely. One way of approaching the appeal is through the following process: 1. Are the tasks, duties and obligations which Staff is ordering me to do in the "Exaction Emails" directly mentioned in the condition of approval? Are the words the same or even similar? Does the project condition say who is responsible for the tasks? The answer is always no. Words that are in an "Exaction Email" and not in the language of the condition cannot be constitutionally imposed post hoc and ad hoc by staff level emails_ 2. Has the City always used specific conditions of approval to require property owners to do what the Walter's ("remove and replace") are being asked to do via ad hoc, post hoc staff emails? 3 CITY COUNCIL CITY OF SAN LLUIS OBISPO June 14, 2020 The answer is always "yes". Other owners have always been given specific written conditions of approval in clear and formally adopted conditions and never through "Exaction Emails" which violate due process and equal protection, unconstitutional conditions, etc. Other owners have always known when reading the condition before approval exactly what tasks are required of them. This makes a fair process for the other owners where the owner can appeal conditions which they think go to far, or accept those conditions, but know in advance exactly what is being asked of them. The Walter's were not given this opportunity through specific project conditions communicating precisely what was to follow and be required. This is explained below, supported by the City Clerk's collected records. 3. Is it fair, or constitutional, to treat the Walter's differently via ad hoc, post hoc Exaction Emails than other property owners, for instance, the multi -million dollar Chinatown Project, concerning expressly written remove and replace conditions? Unlike large, capital intensive projects,the Walter project is a foundation repair and stair replacement project' incapable of supporting "blank check" fees and expenses which continue to enlarge day by day with continuing "Email Exactions." The answer is always "no". Fundamentally inconsistent treatment of people is a slippery unconstitutional slope which no local government should venture down. (See the unanimous U.S, Supreme Court Oleck equal protection decision discussed below.) 4. Do the "Email Exactions" meet the rough proportionality, heightened scrutiny and unconstitutional conditions cases of the United States Supreme Court? Is there rough proportionality between the impacts of repairing the foundation for the 1917 Bello House and repair/ replace two historic stairways and the Email Exaction conditions? Including a streetlight replacing an existing street light, and removing 2 All of the frontage, sidewalk, utility, curb, gutter, driveway, and other public works improvements are attached to the foundation repair and stair replacement permit. The only public works condition attached to the ADU is the one irich water meter service; the joint sewer line was previously replaced and permitted. 4 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 the existing thirty (3 D) foot street light? When the street light illuminates and is within ten feet of a City owned parking lot? The answer is always "no.'" There is no conceivable evidence to meet the rough proportionality and constitutional nexus heightened scrutiny standards from any credible or possible impact from foundation and stair repairs and removing and replacing the only street light on the same side of entire block, and paying an encroachment fee to the City to do so. The findings are final and do not authorize the Exaction Emails. REQUESTED REMEDY #1: REIMBURSE OWNER FOR EXPENSES FOR REMOVAL OF COBRA HEAD STREET LIGHT, CONTRACTOR EXPENSES, BOB'S CRAIN SERVICE, DELIVERY CHARGES TO CITY YARD, REMOVAL OF BANNER ON STREET LIGHT, AND THE COST OF THE STREET LIGHT AND INSTALLATION. DIRECT STAFF TO REVIEW EXPENSES AND DETERMINE REIMBURSEMENT AMOUNT AFTER INSTALLATION OF THE NEW DECORATIVE STREET LIGHT (UNLESS THE CITY TAKES OVER THE DUTIES) 5. Does the imposition of an encroachment permit fee to remove and replace a City owned street light, new curbs, gutters, parking meter poles, Mission style sidewalks, tiles, to be owned by the City violate the United States Supreme Court decision regarding "unconstitutional conditions" applicable to fees and demands to improve public property, and charges identified against a specific piece of property? Yes. REQUESTED REMEDY # 2: REFUND THE ENCROACHMENT PERMIT FEE PAID UNDER PROTEST UPON INSTALLATION OF THE STREET LIGHT IN THE AMOUNT OF $2036.22. REQUESTED REMEDY #3: THE COUNCIL FIND AN "EXTREME HARDSHIP" UNDER MUNICIPAL CODE SECTION 12.16.050, AND EXCUSE PERFORMANCE OF THE EXACTION EMAILS, INCLUDING THE ENCROACHMENT PERMIT FEES. 5 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 The remedies in this Protest are required by the U.S. Supreme Court decision in Koontz v. St. Johns River Water Management District (2013) 133 S. Ct. 2586, concerning heightened scrutiny of monetary and other exactions tied to a specific piece of property, and invalidated one of the District's demands that Koontz hire contractors to make improvements to District owned wetlands. (Sounds familiar.) It is settled law directly applicable to the streetlight remove and replace Email Exactions, which are "conditions subsequent." "This Court's unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See, e.g., Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U. S. 583, 592— 593. It makes no difference that no property was actually taken in this case. Extortionate demands for property in the land - use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the aright not to have property taken without just compensation. Nor does it matter that the District might have been able to deny Koontz's application outright without giving him the option of securing a permit by agreeing to spend money improving public lands. It is settled that the unconstitutional conditions doctrine applies even when the government threatens to withhold a gratuitous benefit. See e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 214. Pp. 8-11." "...Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them." (Emphasis added.) THE EXACTION EMAILS ARE UNCDNSITUTIQNAL CONDITIONS The following are numbered excepts from the various Staff emails to remove and replace the streetlight. 0 CITY COUNCIL CITY OF SAI' LUIS OBISPO June 14, 2020 I. Email Exaction # 1: April 30 Email from Ben Marquart imposing the public works functions and exactions: "Once PGE has de -energized the street light, ... remove and transport the existing light pole as well as the current farmers Market banner. (the banner will be returned to the downtown association for the duration of the project for safe keeping ... and the pole will need to be transported to the City of San Luis Obispo's Corporation Yard (25 Prado Rd) for off-loading. ..." a_ IS THIS LANGUAGE INCLUDED IN THE PROJECT CONDITIONS? NO. b. IS THIS LANGUAGE EXPRESSLY INCLUDED IN OTHER PROJECT CONDITIONS OF APPROVAL? YES. Chinatown Mixed Use Project ARC 30-09, October 1% 2009 (Attachment 5) condition of approval clearly requires the removal of the City's thirty-foot tall existing Cobra head fixtures and the replacement fixture according to specific and mandatory standards: "25. The project shall include pedestrian -level lighting fixtures and the required appurtenances and infrastructure per City Engineering Standard # 7915 and the approved downtown lighting plans. Existing cobra head fixtures shall be removed unless otherwise deemed necessary for pedestrian and/or vehicle safety by the Public Works Director." 2. EMAIL EXACTION #2: May 4 email from Deputy City Attorney: "... the project needs to be completed ..., including ... replacement of the decorative light fixture ...... 7 CITY COUNCIL CITY OF SAN L,UIS OBISPO ,Tune 14, 2020 ". _ _contact City staff to clarify any compliance requirements, to clarify any specifications or to coordinate removal of the existing light pole by your contractor." a. IS THIS LANGUAGE INCLUDED IN THE PROJECT CONDITIONS? NO. b. IS THIS OR SIMILAR LANGUAGE EXPRESSLY INCLUDED IN OTHER PROJECT CONDITIONS OF APPROVAL? YES. Chinatown Mixed Use Project ARC 30-09, October 19, 2009 (Attachment 5) condition of approval clearly requires the removal of the City's thirty-foot tall existing Cobra head fixtures and the replacement fixture according to specific and mandatory standards: "25. The project shall include pedestrian- level lighting, fixtures and the required appurtenances and infrastructure per City Engineering Standard # 7915 and the approved downtown lighting plans. Existing cobra head fixtures shall be removed unless otherwise deemed necessary for pedestrian and/or vehicle safety by the Public Works Director." 3. EMAIL EXACTION 43: May 8 email from Mark Amberg, Temporary Deputy City Attorney: "Condition 13 of the August 1, 2018, letter of approval for your project provides, in relevant part: "This project is located within the Downtown Lighting District, and the master plan for the district shows decorative pedestrian lighting fixtures to be installed along the project frontage. These fixtures shall be installed alon the -project frontage (emphasis added)." a. IS THIS LANGUAGE INCLUDED IN THE PROJECT CONDITIONS? NO! 2 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 The legal advice being given to the City Staff concerning the other "Email Exactions" resulted from materially mis-quoting and changing the "emphasis added" language from the adopted, condition of approval. To his credit, the Deputy City Attorney apologized the serious error; but to the negative, the "legal analysis" and "conclusion" remained the same without any analysis or explanation. The legal position of the city was "result oriented" — owner pays, no matter what language applies. the error did not lead to any further legal analysis, and none is provided in the Staff Report. b. IS CLEAR AND MANDATORY LANGUAGE IN OTHER CITY CONDITIONS OF APPROVAL? YES. Even though the language above was the result of an error and doesn't appear in the conditions of approval, the City conditions of approval for other projects are very clear about who is to do what. China Town Mixed use Project ARC 30-09, October 19, 2009 (Attachment 5) contains clear and unambiguous language that the developer is to complete the improvements, and then specifies them: "23. The existing curb ramp located at the southeast corner of Palm and Chorro serves the pedestrian load from this, development and shall be upgraded per ADA and City Engineering Standards. Any street paving, utility relocations or upgrades related to this installation shall be complete by the developer." [Emphasis added.] 4. EMAIL, EXACTION #4: May 8 email from the Deputy City Attorney: "Uniform Design Criteria 10 10, which is contained in the City's Engineering Standards that were adopted by Council Resolution (No. 10889) on May 15, 2018 and went into effect on May 31, 2018, contains the requirement that all significant projects as well as any significant sidewalk replacement projects ... must "provide new pedestrian lighting" (Uniform Design Criteria 1010, page 31). a. IS THIS LANGUAGE INCLUDED IN THE PROJECT CONDITIONS? NO. 9 CITY COUNCIL CITY OF SAN LUIS OBISPO .Tune 14, 2020 b. IS THIS OR SIMILAR LANGUAGE EXPRESSLY INCLUDED IN OTHER PROJECT CONDITIONS OF APPROVAL? YES. EXAMPLE # 1. Chinatown Mixed Use Proj ect ARC 3 0-19 (Attachment 5 to City record)} expressly provided that City's Engineering Standards which may change or be applicable, and makes express reference to "pedestrian level lighting fixtures": "24. The project shall comply with the Engineering Standards in effect at the time of building pennit submittal. The City expects that new standards relating to street furniture may be in effect at the time of building permit application. These aesthetic standards include but are not limited to public benches, matching trash/ recycle receptacles, news racks, tree grates, and pedestrian- level lighting fixtures." (Emphasis added.) EXAMPLE #2. This same language was approved by the City Council in Resolution No. 10128 (2009 Series), Approving the Final Design of the Chinatown Mixed -Use Development. In addition, condition 28 expressly referred to removing the cobra head fixtures. EXAMPLE #3. Monterey Place Resolution No. ,Arch-1 QQ6-18 (April 2, 2018) also made reference to future engineering standards and the pedestrian lighting requirement in unambiguous terms: "17. All public improvements shall be designed and constructed in accordance with the City Engineering Standards in effect at the time of submittal of the working drawings. "18. Pedestrian level street lights shall be installed per City Engineering Standards and the approved conceptual Downtown Lighting Plan. The final details of how the historic granite curb will be incorporated into the new curb, gutter, and sidewalk shall be reviewed and approved to the satisfaction of Public Works Director. 10 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 In my case, the Engineering Standard merely identifies the product and does not create a duty independent of the formally adopted conditions of approval. My conditions contain no reference to Engineering Standards related to pedestrian - level lighting fixtures with which the developer "shall comply." C. IS THERE A FINDING IN THE CONDITIONS OF APPROVAL THAT THE SIDEWALK REPLACEMENT IS "SIGNIFICANT"? NO. d. IS THERE ANY HEIGHTENED SCRUTINY NEXUS FINDING OR ROUGH PROPORTIONALITY BETWEEN A FOUNDATION AND STAIR REPAIR AND THE NEED TO REMOVE AND REPLACE A CITY OWNED STREET LIGHT? NO. The only finding in the condition of approval relates to the deteriorated condition of the sidewalks which, although not the owner's responsibility, is remedied through repairing those defects: "Because of the extent of damaged or displaced curb, gutter, and sidewalk, non -compliant ADA slopes and surfaces, and utility work, com lete frontage irn rovements will be required. (emphasis added)." (Quoted by Dep. City Attorney email.) The final conditions of approval provides no support for the Exaction Emails, procedurally or substantively, since there is no "nexus" or "rough proportionality" between "damaged or displaced curb, gutter and sidewalk, non -compliant ADA slopes and surfaces, and utility work" and removing and replacing a City streetlight. There is no finding that the existing lighting is inadequate. The fixture would not be visible from the new accessory dwelling unit. The Email Exactions are not supported by the original project findings, and therefore, substantively unconstitutional. As the Staff Report acknowledges, it is too late to now change those findings which are final and binding on and preclude the City's post hoc, ad hoc Email Exactions. 11 CITY COUNCIL CITY OF SAN LUIS OBISPO .tune 14, 2020 4. DOES PROJECT CONDITION 8 EXPRESSLY REQUIRE THE REMOVAL AND REPLACEMENT OF THE STREET LIGHT? No. The May 8 email from Deputy City Attorney seeks to tie the street light removal and replacement to Condition 8 of the conditions of approval which requires "complete frontage improvements": "The letter of approval also contains the following conditions: (Condition 8) Projects involving the construction of new structures require that complete frontage improvements (driveway approach with ADA extension, damaged or displaced curb, gutter or sidewalk) be installed or that existing improvements be upgraded per city standards. [Municipal Code] 12.16.050. Because of the extent of damaged or displaced curb, gutter, and sidewalk, non -compliant ADA slopes and surfaces, and utility work, complete fronia e improvements will be required. (emphasis added)." There is nothing in my Condition 8 which mentions removal and replacement of streetlight explicitly. Municipal Code Section 12.16.050 makes no reference to removing and replacing a streetlight. 5. DO OTHER PROJECT CONDITIONS TREAT "COMPLETE FRONTAGE IMPROVEMENTS" AS INCLUDING REMOVING AND REPLACING STREET LIGHTS? NO. The City Attorney's interpretation of "complete frontage improvements" as including removing and replacing streetlights is not consistent with other City conditions of approval, where the use of the term "complete frontage improvements" must be expressly ssupplemnted by expressly referencing removing and replacing a street light. EXAMPLE NO. 1. Review of the Monterey Place Mixed Use Project, Feb. 4, 2014, conditions of approval, expressly identify new streetlights because 12 CITY COUNCIL CITY OF SAN LLUIS OBISPO June 14, 2020 "complete frontage improvements" does not include "new pedestrian level streetlights": "18. Projects involving the construction of new structures generally requires that complete frontage improvements be installed or that existing improvements be upgraded per city standard. MC 12.16.050 "19. New curb, gutter, sidewalk, curb ramps, bulb -outs, street parking, signage, striping, parking meters, street tree plantings, street lighting, demolitions, etc. shall be completed as a condition of the project. Except where standard streetlights are required, the frontage improvements shall include new pedestrian level streetlights per the approved master plan and City Engineering Standards." (Emphasis added.) The Monterey Place Project "complete frontage improvements" language was supplemented with "shall include new pedestrian Ievel streetlights per the approved master plan and City Engineering Standards." No similar language is in my condition of approval and none can be implied from merely using "complete frontage improvements." if complete frontage improvements is always interpreted by the City as including street lights, then it would not have been necessary to spell it out for the Monterey Place Project. EXAMPLE #2: The City Council Review of the Monterey Place Mixed Use Project (Feb. 4, 2014) also referenced the following similar conditions: "19. All public improvements shall be designed and constructed in accordance with the City Engineering Standards in effect at the time of submittal of the working drawings. "24. Pedestrian level streetlights shall be installed per City Engineering Standards and the approved conceptual Downtown Lighting Plan. The final details of how the historic granite curb will be incorporated into the new curb, gutter, and sidewalk shall be reviewed and approved to the satisfaction of Public Works Director. EXAMPLE #3: Resolution No. Arc-1007-12, Architectural Review Commission, Monterey Place Project conditions: 13 CITY COUNCIL CITY OF SAN LUIS OBISPO .Tune I4, 2020 "19. All public improvements shall be designed and constructed in accordance with the City Engineering Standards in effect at the time of submittal of the working drawings. The current 2010 City Engineering Standards are expected to be updated and adopted by the City Council iin early 2013. "20. Pedestrian -level street lights shall be installed per City Engineering Standards and the approved conceptual Downtown Lighting Plan. .. " (Emphasis added.) EXAMPLE #4. Resolution No_ PC-55990-13, October 23, 2013, Planning Commission Use Permit Approval for Monterey Place Mixed -Use Project, adopted the same conditions as in Example #3 above. EXAMPLE #5. Resolution No. 10493 (2014 Series), City Council Granting Final Project Approval for the Monterey Place Mixed Use Project, included the conditions of approval from Example 3 above. 6. MY CONDITIONS OF APPROVAL CANNOT BE SUPPLEMENTED BY STAFF EMAIL EXACTIONS BECAUSE NO REASONABLE INTERPRETATION OF THE LANGUAGE OF THE CONDITION SUPPORTS THOSE OVER -REACHING EXACTIONS. The Staff Report does not quote the actual language of the conditions relating to the pedestrian streetlight which appears in two locations. There are two separate sections in the approval, one of which is a "recommendation." (ARCH- 1236-2017 (679 Monterey) includes the following language: "Additionally, thePublicWorks Department -offers the following comme for your consideratxp dg�r: motion of f nal plans for this ro' ec - - —p -J 14 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 "Pe' lighting fixtures. This project is located within the Downtown Lighting District. The master plan shows that decorative pedestrian lighting fixtures are proposed along the project frontages). The installation of these lighting fixtures and related infrastructure is recommended with this redevelopment project. The Downtown Association has discussed implementing a donation and commemorative light program to help promote the installation of these lighting fixtures. Contact the City Engineering Development Review Division at (805) 781-7201 to discuss whether City beautification funds are available for a new fixture or contact the Downtown Association at (805) 541-0286 for questions on the status of any assistance ro am_" (Balding added.) - - This "recommended with" language is in stark contrast to Paragraph 5 of the Public Works Department language which is not a recommendation, but mandatory:Milm aW " Public Works knew how to write mandatory ~language and chose not to do so with regard to the recommendation regarding the remove and replace decorative light fixture. This "recommendation language" is the most the City could do since there was no rational nexus under NolanlDollan "heightened scrutiny" to make it an enforceable exaction. The Exaction Emails are not supportable by anything in Resolution No. 10889 effective May 31, 2018 which is inapplicable to pending applications before its effective date. The condition of approval as written did not cite or refer to those standards because they would not be applicable to this project, even though. IF they were to apply, they must have been referenced in the conditions of approval, and they are not. The other project conditions cited above expressly provided for prospective application of Engineering Standards anticipating them application at the time of construction. The standard identified by City Staff has been complied with under protest, so the issue does not support the Staff position. The approved conditions are entirely silent on City Staff s efforts requiring me remove the existing 30 foot street light, remove a half -ton of concrete base, recycle the old lamp post at my expense, arrange and pay for its removal, arrange and pay for its transportation to the City yard, and then remove the Downtown SL4 Banner and arrange for an inspector to pick it 15 CITY COUNCIL CITY OF 5AN LUIS OBISPO .Tune 14, 2020 up and return it. There is no language in any condition which requires me to bear these unconstitutional and disproportionate obligations. Applying the servitude duties on a the private property owner presents serious due process, equal protection, unconstitutional conditions, temporary takings, and 42 USC Section 1983 issues. 7. THE LANGUAGE OF CONDITION 12 DOES NOT AUTHORIZE THE STAFF'S EXACTION EMAILLS 12. This project is located within the Downtown Lighting District, and the master plan for the district shows decorative pedestrian lighting fixtures to be installed along the project frontage. These fixtures and related infrastructure shall be installed with this project. Note that the Downtown Association has discussed implementing a donation and commemorative light program to help promote the installation of these �,.-`eyiew hting fixtures. You may contact the City Engineering Development Division at (05) 781-7201 _ to- disk s ibe availability of City beautification funds for a new fixture, or the Downtown Association at 541-0286 for informatia about any vat a stance��ro ram, (Bolding added.) (a)The "installed with this project" langua e must be given its plain meaning. The dictionary defines ` as "accompanied by another person or thing." The only other "person" who can act "with" me is the City. In this case, the language of the condition contemplated that the new lamp and the removal and disposal of the old 30 foot lamp would not be the sole responsibility or mandatory duty of the 16 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 owner, and if the work was to be done, it would be done "with" meaning "accompanied by" the City removing the existing street light, concrete base, and replacing it with a new street light. My only duty is to place the bolts and wiring for your new decorative lamp. That is the meaning of "with." (b) The condition did not use the words "installed by" the property owner. The dictionary defines "by" as "identifying the agent performing an action." If the remove and replace condition was imposed upon me, the condition would have used "by" and not "with," and even then would have remained vague. Condition 12 did not the "mandatory" conditions language, i.e. which state that the applicant is required to do certain things which are mandatory; they identify who must do it, what must be done, and never implied by word "with". (c) There are many conditions in building a project which must be accomplished 'M the City or other entities. They do not mean that the applicant bears sole responsibility for the condition or expense. For example: (1)the water meter cannot be installed by the property owner because the City installs the meter when Z provide the meter box and connecting water lines, water service is accomplished "M the City; (2) the electrification of the street lamp can only be done the City since PG&E must connect to the new lamp, the City must pay the metered electrical charges; (3)the new power service requires me to replace meters and extend underground conduit, and it is done ` " PG&E and approved by City Inspectors and PG&E "pulls the wire through the conduit." (4) My new meter for the existing Bello House and solar array required me to install the upgraded meter box, but it could not be activated apart from working the City to approve it and PG&E who pulled the new wire from the old box through the underground conduit which was already in place. 17 CITY COUNCIL CITY OF SAN LUIS oBISpo .Tune 14, 2020 (5) The language of the condition "help promote" suggests not a mandatory duty imposed solely upon the property owner. (d) Based upon a Public Records Act response from the City, there is nothing in the Downtown Lighting District documents which requires or even seems to contemplate that the new lighting improvements will be imposed as an exaction paid for by private property owners, especially for foundation repairs and stair replacements for a relatively small historic property. The conditions cite no such language or requirement in the Downtown Lighting Plan because it was aspirational, not a document serving as the basis for an exaction from private owners. The two staff reports produced by the City Clerk contain no such authorization for imposing the decorative light fixture on a private applicant through conditions of approval, no doubt because of the constitutional difficulty in imposing those exactions and implementing a uniform replacement of lights through the "District." The finding in Condition 12 does not find that the Plan carries any force of law and imposes any requirement on a private property owner, or specifically me as the applicant/property owner of adjacent property. (e) The same documents response from the City Clerk includes only one set of plans for the decorative light fixtures and those plans were prepared by the City Public Works Department for Garden. Street, and is a public project — not a small private project. This supports the conclusion that it is the City which is to implement the plan; not a private property owner who happens to have the only 30 foot street lamp on his side of the block. That's common sense. (f) The response to a Public Records Act request to identify any Private project (let alone a small one like mine) which has been required at a private owners sole expense to remove an existing 34 foot light post, it's half -ton concrete base, remove the Downtown SLO Banner, call the inspector to reclaim the banner, recycle the lamp post or take it to the City yard, install a new electric street light power box, arrange for the electrification of the new fixture, etc. etc., buy and install a new 18 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2024 decorative light fixture, and the other things now being demanded through ad hoc staff emails from Public Works Department staff. The recently received PRA documents shows that the only similar conditions was for the multi -million dollar Chinatown Project. There no similar condition adopted by theCity for a project for a foundation repair and stair replacement permit for a 100 year old building, or the construction of a small secondary dwelling unit which by State statutes confer limited authority to extract ad hoc, non -nexus supported exactions. Being singled out for this ad hoc condition via post hoc staff emails implicates Section 1983 equal protection liability for a "class of one" ("spiteful intent"}. Village of Willowbrook v. Olechon (2000) 528 U.S. 562 (2000) (per curium opinion). (9)The interpretation of Condition 13 must also be compared to other conditions which used mandatory language imposing a clear and unambiguous duty upon the owner; e.g., IN Condition 1, Conformance to apRroved plans, uses mandatory language, " ' and "must be. " _ _ (2) Condition 2 "Colors and materials" uses "hall clear Condition 3, "Archeological monitoring," unambi ous lan a e: " _ -_uses clear and -- -- g - applicant shall provide ari archeological manitoring plan," which "shah include _ .. ", "shall specify methods and procedures for", "shall identify --the qualified professional", "shall be included with". - (4) Condition 4 "Parking hn-lieu Fee," "the applicant _' -4, pay...." - - - - - (S)Condition 5 "Ni ht _ Sky -- - - - - -- --- - - - �-- - -_-� Preservation ""shall information" - - (h) The language in the condition recognizes that public funds may be available for paying for expenses acknowledging the applicant working "with"' the City and others if the project condition is to be implemented; in fact that was a fraud and no such funnds existed at the time and never had existed. forr .ors ever. - - - - - - - - - - - if 19 CITY COUNCIL CITY OF SAN LUIS oBISpo June 14, 2020 8. If the condition required the owner to bear all of the expense of removing the existing 30 foot public lamp post and replacing it, the project approval would have adopted nexus findings supporting the heightened scrutiny required for the exaction to demonstrate that same impact of the project rationally required the Exaction Emails. I am not and never have challenged the Condition 13 as written, or the Public Works condition language "recommending" a new decorative street light. My objection is to over -reaching beyond the scope of the condition, piling on of costs, duties, time, stress, economic losses, delays, not required by the condition or supported by any of its findings. If the condition had required all of these expenses and exactions, it would have been supported by adequate findings and evidence to satisfy the California administrative law requirements of the California Supreme Court To an a Can on Case: (1) adequate specific findings and (2) supported by substantial evidence (3) meeting the legal requirements for the decision (e.g_, a variance or an exaction). The Supreme Court decisions in Nolan and Dollan exercised heightened scrutiny based upon nexus findings of project impacts even though they failed constitutional muster. Here, there were no identified impacts from the repairing a foundation project and the "remove and replace at the owners sole expense" condition for an unrelated street light. The pre-existing Cobra Light Fixture could have been left in place as the existing Street light in place and cut the sidewalk tiles around the pole as adjacent to the Children"s Museum. There are serious due process faults if the condition is so vague and unspecific, without nexus findings as to fail to provide notice to the applicant of what Staff may later ultra vices assert as being required of him or her as a costly exaction. I am being asked to remove the only existing street light on my side of the Block in the Downtown Core which benefited other properties including the City's own Parking Lot 1 S; replace it with a decorative light fixture as the only fixture on my side of the block, which has not been completed with the mission tile sidewalk design. 20 CITY COUNCIL CITY of SAN LUIS OBISPO June 14, 2a2Q 9. MY LETTER TO PUBLIC WORKS DATED MARCH 12, 2020 IS CONSISTENT WITH THE ONLY CONSTITUTIONAL INTERPRETATION OF THE CONDITION My letter of March 12, 2020 is included as an attachment to my April 24, 2020, "NOTICE OF PROTEST FOR PAY MW OF ENCORACH.VIENT PERMIT FEES AND PROTEST OF REQUIREMENT TO INSTALL A DECORATIVE PEDESTRIAN LIGHTING FIXTURE; CAL, GOV. CODE SECTION 66020." It reflects my understanding of what I was obligated to do under the conditions and had agreed to do: "when installing the required curbs, gutters sidewalks (downtown Mission standard), street tree, etc., we will install a new street light box, base and bolts ready for the City to remove the existing light standard and attach the `decorative' light fixture," There was no written response from the Engineering Development Review Division. The first emails from Staff did not reject having the City remove the Cobra Street Light, but soon morphed into the Exaction Emails. There are Staff emails which never challenge or dispute this understanding submitted as attachments. 9• CONDITION S DOES NOT REQUIRE THE REMOVAL OF THE EXISTING STREET LIGHT AND REPLACE IT WITH A DECORATIVE LIGHT FIXTURE. Staff has asserted that Condition S requires removal of the 30 foot street light and replacement with a decorative street light based upon Municipal Code Section 12.16.050. That section only requires "that a standard concrete curb, butter, sidewalk and street pavement as determined by Council resolution be installed on all street frontages of such property by 21 CITY COUNCIL CITY OF SAN LUIS OEISI'o June 14, 2020 the owner of such property or the person in possession of the property prior to granting of occupancy or final approval." There is no mention in that section of removing a City owned 30 foot street lamp and replacing it with a decorative feature. The reference in the Condition referencing the specific code section limits its scope and precludes the "remove and replace" Email Exactions. The Protest should also be affirmed to implement the provisions of Municipal Code under Section 12.16.050 for an exception and "defer or temporarily waive all or portions of these requirements if they jointly agree that they will cause extreme hardship or serve no useful Purpose." Attaching perhaps $40,000 (or more depending upon additional delays caused by the City's actions) to a foundation and stair replacement Permit for a 102 year old building and an exempt accessory dwelling unit per state law is certainly a hardship. The fact that I did not do so cannot justify the continuous "piling on" of one more requirement, one more fee, one more expense, one mor delay after another Given these ad hoc and post hoc email exactions, I ask that the Council now find an "extreme hardship" under Municipal Code Section 12.16.050 , and excuse performance of the Exaction Emails, including the encroachment permit fees. It is a hardship to collect an encroachment permit fee of more than $2,000 for the "privilege" of replacing the sidewalks, to Mission style requirements, street tiles, install a street tree, expensive tree grate, replace dilapidated City owned curbs, gutters and sidewalks (per project findings). That fee was also paid under protest. I have paid many encroachment permit fees relating to specific improvements which solely benefit my property w such as a new water line — a new sewer line. However, I object to piling on fee after fee after fee to construct public works improvements which are the City's responsibility after long deferred maintenance. I was not required to pay any encroachment fee to install a new fire line by the Fire Marshall because they required it not for any project of mine, but solely because the City had placed a dedicated fire line in Monterey St. to which T was required to connect at my oven expense. Encroachment permit fees to construct expensive public improvements are illegal and unconstitutional. The encroachment fee is in 22 CITY COUNCIL CITY OF SAN LUIS OBISPO .Tame 14, 2020 reality a tax and not a fee, since it fails to meet the standard of the Mitigation Fee Act which must meet reasonable relationship requirements (between both the fee's use and the type of development and between the type of development and the need for the public facility), that ad hoc fees must also meet a reasonable ,relationship requirements between the amount of the fee and the cost of the facility, and that fees and exactions must not exceed the cost of providing the service or facility for which they are imposed. Cal. Gov. Code Sections 66001, 66005; Ehrlich, 12 Cal.4", at 864- 867. The fees and the costs of the street improvements far exceed the costs of the foundation repairs, for instance. More fees are an unlawful tax. 10. THE ENCROACH PERMIT IS SUBJECT TO LAWFUL AND STATUTORY PROTEST PER MY APRIL 241,2020 GOVERNMENT CODE SECTION 66020 PROTEST The Staff has attempted to justify the Exaction Emails under the terms of the encroachment permit. That permit, of course, and the fees and duties of the Exaction Emails is the subject of this protest, which is independently authorized by the Municipal Code Section. This protest is pursuant to City's Municipal Code Section 4.56.060 with which i complied. Ministerial acts, such as building and encroachment permits, cannot control or supersede quasi-judicial project conditions and findings; they cannot be a substitute for nexus and rough proportionality standards imposed by the California and United States Constitutions. 11. THE BUILDING PLANS DO NOT IMPOSE A DUTY CONTRARY TO PROJECT CONDITIONS Staff has also asserted in the administrative record that the building plans impose a condition to remove and replace the streetlight_ The Building Plans (which quote the conditions verbatum) do anything more than identify things to be done — not by whom and at whose expense. Same as above, the plans show a water meter; the City installs it; the plans show electrical boxes and PG&E pulls 23 CITY COUNCIL CITY OF SAN LUIS OBISPO June 14, 2020 the wires through the conduit, etc. etc. Moreover, the Plans reproduce and expressly incorporate the accurate language of Condition No 13, 12. STAFF HAS CITED RESOLUTION No. 10889 effective May 31, 2018 (Engineering Standards): However: • WOULD NOT APPLY TO THIS PROJECT WHICH WAS PENDING AND IN PROCESS WHEN City's ENGINEERING STANDARDS BECAME EFFECTIVE; NO RETROACTIVE APPLICATION • IS NOT REFERENCED IN THE CONDITIONS OF APPROVAL AS WITH ALL OTHER CITY PRECEDENTS (Chinatown Project, Monterey Place, etc.); • MANDATES NOTHING INDEPENDENT OF THE PROJECT CONDITIONS. • THE CONSTRUCTION COMPLETED AND PLANNED UNDER PROTEST IS COMPLIANT WITH THE STANDARD The Conditions of Approval for my project do not include any reference to engineering standards, which by its terms apply to major public works projects since the Resolution findings refer to advertising public works projects to which the standards apply. Nowhere is there any finding, evidence, or condition referencing these inapplicable standard or the document itself. This leads to the inescapable conclusion that the prior standards (which are also not cited in the findings) do not contain a "remove and replace" condition now imposed ultra vices, post hoc, and ad hoc emails. 13. STAFF'S JUSTIFICATIONS FOR 1WOSING THE REMOVE AND REPLACE EXACTION ARE NO LONGER GOOD LAW. Staff explained the imposition of the remove and replace mandate based on law which is inapplicable or superseded. 24 CITY COUNCIL CITY OF SAN LUIS CBISPO June 14, 2020 "The requirement that you remove and replace the light fixture does not in any way diminish the value of or interfere with the use of your Property and does not constitute a taking. if anything 9 installation of a new decorative light fixture in front of your propey that conforms to current City standards likely enhances the value of your property „ The United States Supreme Court in Koonz held the opposite and established the basis for this protest. "In this case, moreover, petitioner does not ask us to hold that the government can commit a regulatory Ong by directing someone to spend money. As a result, we need not apply Penn CentraPs "essentially ad hoc, factual inquir[y]," 438 U.S. at 124 98 S.Ct. 2646 [including effect on fair market value] at all, much less extend that 'already difficult and uncertain rule" to the "vast category of cases" in which someone believes that a regulation is too costly. Eastern Enter rises 524 U.S, at 542 118 S.Ct. 2131 tp inion of KENNEDY J.. Instead, petitioner's claim rests on the more limited proposition that when the government commands the relinquishment of funds linked to a specific, identifiable property interest such as a bank account or parcel of real property, a "per se [takings] approach" is the proper mode of analysis under the Court's precedent. Brown v. 1.e al Foundati Dash., 538 U.S. 216 235 123 S.Ct. 1406_ 1 SS T Fri ')A -2-7K rnnn °n "Finally, it bears emphasis that petitioner's claim does not implicate " considerations about the wisdom nonnative of government decisions." Eastern 2I31 Enter rises 524 U.S. at 545. 11 S S_Ct, o inion o-r KENNEDY J.. We are not here concerned with whether it would be "arbitrary or unfair" for respondent to order a landowner to mare Improvements to public lands that are nearby. -[c., at 554, 118 S.Ct• 2131 (BREYER, 3., dissenting). Whatever the wisdom of such a policy, it would transfer an interest in property from the landowner to the government. For that reason, any such demand would amount to a per se taking similar to the taking of an easement or a lien. C£ Dolan 512 U.S. at 384 114 S.Ct. 2309; Pollan Og U.S. at 831 107 S.Ct. 3141." 25 CITY COUNCIL CITY OF SAN L,UIS OBISPO .Tune 14, 2020 It is respectfully requested that the Council uphold this Protest and Petition. Very truly yo ` F WILD AM S. WALTER, ATF Cc (VIA Email): City Manager City Clerk City Attorney Enclosures PLEASE SEE ATTACHED PHOTOGRAPHS AND DOCUMENTS IN THE FOLLOWING PAGES 26 TELEPHONE [gpSl 541-SGOI rA4ZSIMILE {Bp5) 541-e640 LAW OFFICES W I LLIAM S. WALTER A PROFESSIONAL CORAORATIOH THE BELL,p HbVSE 67S MONTEREY STREET 5A,N LUIS OBISPd, CAiLIFORNFA g3401 EMAIL WWALTER(O1TCSN NET "Our decisions in those cases reflect two realities of the permitting process. The first is that land -use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would life to take. By conditioning a building pen -nit on the owner's deeding over a public right-of-way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. 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