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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: AUGUST 15, 2006
SUBJECT: REQUEST FOR WAIVER OF THE APPLICATION FEE FOR A LANDSLIDE MORATORIUM EXCLUSION REQUEST FOR SIXTEEN (16) VACANT LOTS IN THE “ZONE 2” AREA OF THE PORTUGUESE BEND COMMUNITY (PLANNING CASE NO. ZON2002-00043)
Staff Coordinator: Kit Fox, AICP, Associate Planner
Deny the requested fee waiver.
The property owners involved in the Monks case have submitted additional materials to complete their landslide moratorium exclusion request, and have also requested a waiver of any additional fees to cover City costs to complete the review of this application. Staff believes that the applicants’ request is not consistent with the fee waiver criteria specified in the Municipal Code and should be denied.
On January 18, 2002, a group of property owners in the “Zone 2” area of the Portuguese Bend community submitted a request for a landslide moratorium exclusion for fourteen (14) vacant lots (Planning Case No. ZON2002-00043). The request included the payment of the fees for a landslide moratorium exclusion, environmental assessment and geologic review that were in effect at that time, totaling $5,750.00. Two of these fees were trust deposits to cover actual Staff costs for the review of the landslide moratorium exclusion request by Planning Staff and the City’s geotechnical consultant. The application was deemed incomplete on February 18, 2002, pending the submittal of additional information and geologic studies. The group of property owners subsequently filed suit against the City.
On May 29, 2006, attorneys for the property owners and the City drafted a settlement agreement. Among other things, the agreement called upon the property owners—now increased to encompass sixteen (16) vacant lots—to complete their application, including submittal of a geotechnical report. Additional information to complete the application was submitted to the City on July 3, 2006, July 13, 2006, and July 17, 2006. Based upon the remaining funds in the two (2) trust deposits and the estimated time needed for the City to review these additional materials, the property owners were asked to submit an additional $20,000 to replenish the trust deposits. On July 20, 2006, the property owners submitted a check for $20,000 to cover the City’s costs associated with the review of this request by Planning Staff and the City’s geotechnical consultant. They simultaneously requested a waiver of these fees (see attached letters). At the applicants’ request, this matter was continued from the August 1, 2006, City Council meeting.
Pursuant to Section 17.78.010(B) of the Rancho Palos Verdes Municipal Code (RPVMC), the City Council may grant a request to waive the fees associated with a development application if it finds that:
1. The applicant or the beneficiary of the use or activity proposed by the applicant is a nonprofit corporation registered with the State of California; or
2. The use or activity proposed or the activities of the beneficiary of the use or activity proposed are charitable, educational or otherwise provide a substantial benefit to the public; or
3. The applicant has demonstrated a financial hardship, as determined by the City Council, on a case-by-case basis.
The letter from the property owners’ attorney of July 14, 2006, states that “[the] imposition of the $20,000 fee at this stage appears contrary to our joint good faith efforts to resolve this matter. Moreover, since there is only one report by Leighton & Associates covering all 16 lots, we cannot see how $20,000 in fees is anywhere close to the amount that it will take to review and process this application. Request is hereby made that this fee be waived in the spirit of achieving the settlement that the parties toiled to hard and so long to achieve.”
Despite the reference to the settlement/standstill agreement, there is no provision in that agreement that obligates the City to assume the cost of processing the landslide moratorium exclusion applications, and until now, this issue has not been presented to the City Council for its consideration. In addition, Mr. Richards, who is representing the City in the Monks case, advised the City Attorney that the issue of the responsibility for the cost of processing the landslide moratorium exclusion applications was not discussed at the mediation. Thus, the provisions of the standstill agreement do not obligate the City to approve the request that is before the City Council this evening. For the reasons discussed in this report, the basis for the requested waiver is not consistent with any of the three (3) criteria of RPVMC Section 17.78.010(B).
On February 21, 2006, the City Council adopted the most recent Master Schedule of Fees and Charges for City Services (Resolution No. 2006-12). The fee for a landslide moratorium exclusion request was established as a trust deposit with no fixed base amount. In the discussion on trust deposits in Section 7 of Resolution No. 2006-12, the City Council resolved that “each applicant shall be responsible for the full cost of services provided on behalf of the City by outside consultants that have been retained by the City to render services specifically in connection with the processing of the application. Each applicant shall be required to pre-pay, in the form of a trust deposit with the City, the estimated amount of the cost of any such services to be provided in connection with the processing of the application. The trust deposit shall be remitted to the City prior to commencement of covered services.” Section 7 also notes that “trust deposits shall include the costs of extraordinary services, including, but not limited to, geological reviews, preparation of environmental impact reports and other environmental documentation, and special services by the City Attorney that arise directly from the particular application and are not within the scope of services that are routinely provided to the City. In the event the trust deposit exceeds the actual costs incurred for a particular application, the City will refund the surplus. If, conversely, the actual costs will exceed the amount on deposit, the City shall notify the applicant in writing that additional funds are required to replenish the trust deposit. The applicant shall replenish the trust deposit within ten days of receipt of notice from the City that additional funds are needed. However, in such cases, the applicant shall replenish said trust deposit accounts in amounts requested by the City, based upon an estimate by City Staff of the cost of services that will be provided by the City during the next 90 days. If an applicant fails to timely replenish a trust deposit, the City shall suspend all processing of the application until such time as the applicant remits the required additional funds.”
Staff has estimated that an additional $5,000 will cover the costs of Planning Staff review and an additional $15,000 will cover the costs of the City’s geotechnical consultant. Staff believes that the estimated fees reasonably reflect the additional costs that will be incurred by the City for the processing of this application. If the property owners are ultimately correct in their assertion that it will cost less than $20,000 to complete the review of their application, they will receive a refund of any unexpended funds from these trust deposits. Therefore, Staff believes that the applicants’ request for a waiver of the processing fees is unwarranted and should not be granted.
The applicants have been advised of the City Council’s consideration of this request at tonight’s meeting, and have been provided with a copy of the Staff report.
Staff believes that the applicants’ request for a waiver of the processing fee associated with the landslide moratorium exclusion request (Planning Case No. ZON2002-00043) is not warranted, based upon the required findings under RPVMC Section 17.78.010(B). Therefore, Staff recommends that the City Council deny the applicants’ request.
The approval of the requested fee waiver will result in the City bearing all costs associated with the processing of the landslide moratorium exclusion request once the current trust deposits are depleted. As of the date of this report, the initial $3,620 trust deposit for Planning Staff review had been reduced to $2,421, and the initial $900 trust deposit for geotechnical review had been totally depleted.
In addition to Staff’s recommendation, the alternatives available for the City Council’s consideration include:
1. Approve the requested waiver of the processing fee.
2. Grant a reduction of the processing fee, in an amount to be determined by the City Council.
Fee waiver request