B & P Development Corp. v. City of Saratoga

• Decision Date: 22 September 1986
• Court: California Court of Appeals Court of Appeals
• Parties: B & P DEVELOPMENT CORPORATION, etc., Plaintiff and Appellant, v. CITY OF SARATOGA, Defendant and Respondent. H000410.

Page 192

230 Cal.Rptr. 192

185 Cal.App.3d 949

B & P DEVELOPMENT CORPORATION, etc., Plaintiff and Appellant, v. CITY OF SARATOGA, Defendant and Respondent.

H000410.

Court of Appeal, Sixth District, California.

Sept. 22, 1986.

Burnett, Burnett & Allen, Douglas B. Allen, Bruce F. Allen, San Jose, for plaintiff and appellant.

Harold S. Toppel, Saratoga City Atty., Steven G. Baird, Deputy Saratoga City Atty., Mountain View, for defendant and respondent.

AGLIANO, Presiding Justice.

I

Plaintiff B & P Development Corporation, doing business as B & P Inc., appeals from an order dismissing the action after a general and special demurrer by defendant City of Saratoga was sustained without leave to amend. Plaintiff seeks a refund of various development fees expended on a subsequently abandoned condominium project. We affirm for the following reasons.

II Scope of Review

A general demurrer presents the same question to the appellate court as to the trial court, namely, whether the plaintiff has alleged sufficient facts to justify any relief, notwithstanding superfluous allegations or claims for unjustified relief. (Harnish v. Bramer (1886) 71 Cal. 155, 158, 11 P. 888; Matteson v. Wagoner (1905) 147 Cal. 739, 742, 82 P. 436; California Trust Co. v. Cohn (1932) 214 Cal. 619, 628, 7 P.2d 297; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) "[T]he allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc. § 452.)" (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 244-245, 74 Cal.Rptr. 398, 449 P.2d 462.) Pleading defects which do not affect substantial rights of the parties should be disregarded. (Code Civ.Proc., § 475; Hill v. City of Santa Barbara (1961) 196 Cal.App.2d 580, 585, 16 Cal.Rptr. 686.)

In evaluating a demurrer, we assume the truth of all material facts properly pleaded in the complaint unless they are contradicted by facts judicially noticed (Code Civ.Proc., § 430.30, subd. (a), 430.70; Saltares v. Kristovich (1970) 6 Cal.App.3d 504, 510, 85 Cal.Rptr. 866, and cases there cited) but no such credit is given to pleaded contentions or legal conclusions. (Branham et al. v. Mayor and Common Council of San Jose, et als. (1864) 24 Cal. 585, 602; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) Specific factual allegations modify and limit inconsistent general statements. (Little v. Union Oil Co. (1925) 73 Cal.App. 612, 619, 238 P. 1066; Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 422, 282 P.2d 890; Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 328-329, 253 P.2d 659.) In particular, a general description of an exhibit attached to a complaint will be disregarded where inconsistent with the exhibit. (Stoddard v. Treadwell (1864) 26 Cal. 294, 303; Ventura etc. Ry. Co. v. Hartman (1897) 116 Cal. 260, 263, 48 P. 65; Hill, supra, 196 Cal.App.3d at p. 586, 16 Cal.Rptr. 686; Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349, 353, 43 Cal.Rptr. 605.)

III The Complaint

The subject of this appeal is plaintiff's second amended complaint, filed after a demurrer was sustained by stipulation to the first amended complaint. The original had been amended as a matter of course (Code Civ.Proc., § 472) without prior demurrer. It attempts to state five causes of action, all seeking recovery of development fees plaintiff paid to defendant in the course of subdividing property for condominium units.

The first cause of action alleges: on August 21, 1980, defendant's City Council granted conditional approval for a subdivision map containing plaintiff's plan for developing condominium units on certain property located in the City of Saratoga. Both before and after obtaining defendant's approval, plaintiff paid defendant the following fees as a condition of subdividing the property: On July 8, 1980, storm drain connection fees of $6,655.70, park development fees of $26,900, engineering and inspection fees of $8,400; probably on the same date (the check copy is virtually illegible) a cash deposit regarding an improvement contract of $10,000, and on July 25, 1980, sewer connection fees of $600, and on April 1, 1982, fees for letters of credit of $641.55; ¹ all totaling $53,197.25. These fees were based on the proposed number of condominium units. Defendant subsequently abandoned the project without building any units and in early 1983, filed a governmental claim for refund of the fees, which defendant denied.

The second cause of action alleges that after obtaining defendant's subdivision map approval, on September 16, 1980, plaintiff paid defendant $12,750.76 in building permit fees, which were based on the proposed number of condominium units. Defendant subsequently abandoned the project without building any units and, in early 1983, filed a governmental claim for refund of the fees, which defendant denied.

The third cause of action alleges that in connection with the fees described in the first cause of action, plaintiff is informed and believes that in 1983 defendant rezoned the subject property, which extinguished plaintiff's development rights under the approved subdivision map. Defendant has refused plaintiff's claim for a refund and is unjustly enriched.

The fourth cause of action alleges the rezoning had the same effect as described in the third cause of action on the building permit fees described in the second cause of action.

The fifth cause of action alleges defendant has unlawfully taken plaintiff's development rights by rezoning the property as described in the third and fourth causes of action.

IV Subdivision Map Act Fees

We now examine the statutory basis for the fees in order to locate any refund provisions.

A. Park Fees

Some of the development fees which are the subject of the first, third and fifth causes of action were imposed pursuant to provisions in the Subdivision Map Act. (Gov.Code, Tit. 7, Div. 2, § 66410.) ² We observe in general a city cannot, as a condition of granting subdivision map approval, exact general revenue fees not specifically authorized by the Map Act. (Kelber v. City of Upland (1957) 155 Cal.App.2d 631, 638, 318 P.2d 561; Santa Clara County Contractors etc. v. City of Santa Clara (1965) 232 Cal.App.2d 564, 572-578, 43 Cal.Rptr. 86 ³, 63 Ops. Cal. Atty. Gen. 64 (1980).)

The $26,900 park development fee was authorized by section 66477, which provided in 1980 (Stats.1979, ch. 1192, § 7, pp. 4694-4695): "The legislative body of a city or county may, by ordinance, require the dedication of land, the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a final map or parcel map, provided that: ... [p] (c) The land, fees, or combination thereof are to be used only for the purpose of providing park or recreational facilities to serve the subdivision. ... [p] (e) The amount ... of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision. [p] (f).... Any fees collected under the ordinance shall be committed within five years after the payment of such fees or the issuance of building permits on one-half of the lots created by the subdivision, whichever occurs later. If such fees are not committed, they shall be distributed and paid to the then record owners of the subdivision in the same proportion that the size of their lot bears to the total area of all lots within the subdivision...."

Defendant City had a subdivision ordinance ( § 13.8) in effect at the time which authorized collection of park fees.

B. Storm Drain and Sewer Connection Fees

We presume the statutory basis for the $6,655.70 storm drain connection fee and the $600 sewer connection fee is section 66483, which provides: "There may be imposed by local ordinance a requirement for the payment of fees for purposes of defraying the actual or estimated costs of constructing planned drainage facilities for the removal of surface and storm waters from local or neighborhood drainage areas and of constructing planned sanitary sewer facilities for local sanitary sewer areas, subject to the following conditions: ..." The drainage and sanitary sewer fees must be no greater than necessary and used to construct facilities to benefit the subdivision. ( § 66483.)

When there is a surplus, no more than 5 percent of such unexpended funds may be transferred to the city's general fund. ( § 66483.1, subd. (a).) Otherwise it must be used to improve the facilities within the affected area ( § 66483.1, subd. (b)) or refunded ( § 66483.1, subd. (c)). The refund goes to the current lot owners and then, if unclaimed, to the city. ( § 66483.2.) ⁴

Defendant City's subdivision ordinance ( § 4) imposed a storm drainage fee. Defendant City characterizes the sewer connection fee as really a performance bond, but recognizes that the record does not support this contention. Based on the allegations of the complaint, we must presume it is related to the storm drainage fee.

C. Performance Security Fees

The $10,000 cash deposit was part of the security to guaranty plaintiff would perform certain improvements, such as building and maintaining streets, which was authorized by sections 66499, et seq. Presumably the $641.55 expended for letters of credit was also part of the security. The security may be partially or wholly released upon the subdivider's promised performance. ( § 66499.7.) Defendant City's subdivision ordinance ( § 17) required such a security.

D. Engineering and Inspection Fees

Defendant City has not directed us to any statutory basis for the $8,400 engineering and inspection fee, other than its own subdivision ordinance ( § 4), which provides in pertinent part: "The inspection fee to be paid on filing of improvement plans shall be a percentage of...