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Home My WebLink AboutR-11134 denying a protest of payment of Permit Fees for Encroachment Permit ENCR-0780-2020, and denying a protest of a condition of approval for a decorative pedestrian lightR 11134 RESOLUTION NO. 11134 (2020 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, DENYING A PROTEST OF PAYMENT OF PERMIT FEES FOR ENCROACHMENT PERMIT ENCR-0780-2020, AND DENYING A PROTEST OF A CONDITION OF APPROVAL REQUIRING THE INSTALLATION OF A DECORATIVE PEDESTRIAN LIGHTING FIXTURE AS 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 letter associated with ARCH-1236-2017 (679 Monterey); and WHEREAS, the project’s Conditions of Approval required the construction of complete frontage improvements, including new curb gutter and sidewalk, installation of a decorative pedestrian light fixture, driveway approaches, a tree wells, and other miscellaneous improvements within City right-of-way along the frontage of the property; and WHEREAS, Municipal Code 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 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 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 is based 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 Resolution No. 11134 (2020 Series) Page 2 R 11134 WHEREAS, Encroachment Permit fees are included in the current Master Fee Schedule; and WHEREAS, the California Supreme Court held in Barratt Am. Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685 that fees imposed to 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 imposed on a development project” that are subject to protest under Government Code Sections 66000 and 66020 of the California Mitigation Fee Act; and WHEREAS, Municipal Code Section 4.56.020’s definition of “impact fee” mirrors the definition of “fee” under the California Mitigation Fee Act (Government Code §§ 66000–66025) that was analyzed by the California Supreme Court in Barratt American Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685; and WHEREAS, on April 24, 2020, Mr. William Walter submitted a protest to the City regarding the cost of his encroachment permit fee in the amount of $2,036.22 and regarding Condition of Approval Number 13 identified in the City’s August 1, 2018 decision letter for 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 which Mr. 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 permits are not subject to protest because such fees do not constitute an “impact fee”/ “fee” under the California Mitigation Fee Act or Municipal Code Chapter 4.56. b) The established fees for encroachment permits are determined through an 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. Resolution No. 11134 (2020 Series) Page 3 R 11134 c) The fee 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 the City on August 1, 2018. b) Municipal Code 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. 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 of a 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 fixture was 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. Resolution No. 11134 (2020 Series) Page 4 R 11134 SECTION 3. Action. Based on the foregoing recitals, which are adopted as the findings of 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 Council Member Christianson, seconded by Council Member Stewart, and on the following roll call vote: AYES: Council Member Christianson, Stewart and Mayor Harmon NOES: None RECUSED: Council Member Pease and Vice Mayor Gomez The foregoing resolution was adopted this 16th day of June 2020. ____________________________________ Mayor Heidi Harmon ATTEST: ____________________________________ 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