Link to recording of June 26, 2014 RTMF meeting

Here's the link to this file:
https://www.hightail.com/download/ZUcxWWVzR3NvQUkxZXNUQw

This appeal was initially heard by the board and denied on October 25, 2012. It was heard a second time pursuant to court order on June 26, 2014 during which the Board heard appellant’s presentation and staff’s rebuttal. The Board closed the hearing to further argument and began its deliberations. The Board continued the hearing to this meeting to continue its deliberation.  

Summary: Clovis-Herndon LLC is appealing a staff determination their project is subject to the fee. The project is the shopping center development on the northeast corner of  Herndon and Clovis Blvd (Clovis Crossing). Appellant represents there is approximately 238,337 sq. ft. of commercial retail in this development owned by Clovis-Herndon Center, LLC subject to this appeal calculated at $467,141, not including the $25 handling fee.  The appeal includes only property owned by Clovis-Herndon, LLC and not property for other owners in the shopping center subject to the fee.  

At the initial October 25, 2012, the Board heard appellant’s presentation and staff’s rebuttal. A motion was made and seconded to the effect that the RTMF did not apply to the Clovis Crossing project. That motion failed, however a motion was never passed to affirmatively deny the appeal and no Findings of Fact were adopted describing the reason for such a denial. Clovis Herndon LLC subsequently filed suit in Fresno Superior Court and the hearing was held January 15, 2014.  The judge ordered the “Fresno County Regional Transportation Mitigation Fee Agency to hold a new hearing on petitioner’s appeal, make a new determination on petitioner’s appeal, and make appropriate findings in support of whatever order it may make on that hearing. Any review of subsequent findings shall be initiated by petition for writ of mandate.” The order addressed the technical absence of any formal finding of fact and did not address merits of the appeal or the Boards reasons for not granting the appeal.  

At the June 26, 2014 RTMF Board meeting, after hearing appellant’s presentation and staff rebuttal, the Board closed the hearing to further argument and began its deliberations. The Board continued the hearing to this meeting to continue its deliberation. 

A link is provided containing the initial 10/25/2012 appeal.

The staff rebuttal, verbatim transcripts to the 10/25/2012 hearing and a  May 20, 2014 letter from  Caswell Bell and Hillison LLP detailing the Clovis Herndon LLC position is enclosed in the agenda.

A separate link is provided containing a digital recording of the entire proceeding of the June 26, 2014 hearing (See Item I Minutes above).

County Counsel recommends in the event the Board again determines to deny the appeal, they direct County Counsel to prepare a Findings of Fact consistent with their determination, to be brought back to the board for adoption at a subsequent meeting.

Action: Staff recommends the appeal be denied and offers the following reasons. 

1. The Measure “C” Ballot approved by voters in 2007 established the Regional Transportation Mitigation Fee (RTMF) would apply to all development not specifically exempted by the ballot measure.
2. Regional Transportation Mitigation Fee Agency Resolution 2009-01 as amended by Resolution 2010-01 provides;

a.       Section 3: L. “Development” means any work or improvement that requires a building permit or development approval.
b.       Section 3: M. “New Development” means any development on vacant land or additions or expansions on existing development wherein square footage of the development, in the case of non-residential use, or the number of dwelling units, in the case of residential use, is increased, or where the use is changed.
c.       Section 4: A. Fee. All new development in the Cities and the County shall be responsible for paying the RTMF unless otherwise exempted by this Resolution.
d.       Section 4: E. Applicability. The RTMF shall apply to all new development within the Cities and the County effective January 1, 2010, unless otherwise exempt hereunder. None of the exemptions in Resolution 2009-01 apply to Clovis Crossing Shopping Center nor does appellant make such a claim of exemption.

3. Language in the RTMF Administrative Manual Informational Summary regarding the applicability of the fee to all new development is consistent with language in Resolution 2009-01.
4. Clovis Crossing Shopping Center required a building permit and falls within the definition of “New Development” as defined in Resolution 2009-01 as amended by Resolution 2010-01.
5. The building permit for Clovis Crossing Shopping Center was approved February 27, 2012 therefore Clovis Crossing Shopping Center has no common law vested right because it did not obtain a building permit prior to the implementation of the Regional Transportation Mitigation Fee on January 1, 2010. Clovis Herndon LLC makes no claim to having vesting rights of any sort.
6. The final approval of Clovis Crossing Shopping Center, approved by the Clovis City Council on June 29, 2009, including SPR2005-17 and CUP2005-34 does not provide an exemption to the fee per adopted Regional Transportation Mitigation Fee policy or state law.
7. Condition 94 of the Site Plan Review, SPR 2005-017, incorporated into the final approval of the Clovis Crossing development by the Clovis City Council on June 29, 2009 specifically provides “Additional fees may be assessed and must be paid prior to issuance of subsequent development permits…Additional fees payable to the City or other agencies (FMFCD) may become due as supplemental information regarding the project is received by the City.”
8. The RTMF fee is levied to mitigate traffic impact to components of the State Highway System and therefore does not duplicate or overlap fees paid to mitigate local traffic impacts.
9. The RTMF applies to the Clovis Crossing Shopping Center.

LINK TO APPEAL:

A. Items from Staff

B. Items from Members

A.   Public Presentations

This portion of the meeting is reserved for persons wishing to address the Board on items within its jurisdiction but not on this agenda.  Note:  Prior to action by the Board on any item on this agenda, the public may comment on that item.  Unscheduled comments may be limited to 3 minutes.