Branciforte Heights v. City of Santa Cruz

• Decision Date: 19 April 2006
• Docket Number: No. H028864.,H028864.
• Citation: 42 Cal.Rptr.3d 96,138 Cal.App.4th 914
• Court: California Court of Appeals Court of Appeals
• Parties: BRANCIFORTE HEIGHTS, LLC, Plaintiff and Respondent, v. CITY OF SANTA CRUZ, et al., Defendants and Appellants.

42 Cal.Rptr.3d 96

138 Cal.App.4th 914

BRANCIFORTE HEIGHTS, LLC, Plaintiff and Respondent, v. CITY OF SANTA CRUZ, et al., Defendants and Appellants.

No. H028864.

Court of Appeal, Sixth District.

April 19, 2006.

John G. Barisone, Santa Cruz and Jeffrey E. Barnes, San Francisco and Atchison, Barisone, Condotti & Kovacevich, Santa Cruz, for Appellant.

Edward L. Chun and Bosso, Williams, Santa Cruz, for Respondent.

ELIA, Acting P.J.

In this Subdivision Map Act (Map Act) (Gov.Code, § 66410 et seq.)¹ case, appellant City of Santa Cruz (City) challenges the superior court's issuance of a writ of mandate directing the City to allow a private open space credit against the park fees exacted from respondent Branciforte Heights, LLC (Branciforte), a limited liability company, the developer of the Branciforte Heights subdivision. Section 66477, which is also known as the Quimby Act (§ 66477, subd. (g)) and is part of the Map Act, generally authorizes local governments to require, by ordinance, parkland dedication or in lieu fees as a condition to the approval of a tentative or parcel map. (§ 66477, subd. (a).) Section 66477 contains a provision creating eligibility for a credit "for the value of private open space within the development which is usable for active recreational uses." (§ 66477, subd. (e).)

The central substantive question in this case is whether subdivision (e) of section 66477 imposed a duty on the City to provide a private open space credit against the park and recreation fees assessed against Branciforte. The City maintains that it retains discretion under subdivision (e) of section 66477 to decide whether to include a private open space credit in its park fee ordinance and the City may "eschew private open space credits in favor of a policy and ordinance intended to advance public parkland development." The City additionally claims that the open space amenity was provided "in consideration for the project's PUD permit," which authorized a development plan not permitted under conventional zoning and, therefore, the provision of open space was not an aspect of subdivision permit approval against which such a credit could be applied. The City also asserts that respondent's petition was procedurally barred.

As we will discuss below, the City's procedural claims are not established by the appellate record. As to the substantive merits, we hold that subdivision (e) of section 66477 does not create the direct right to receive a private open space credit that is enforceable by a traditional writ of mandate under Code of Civil Procedure section 1085. Consequently, the trial court erred in issuing a writ compelling the City to allow a credit for private open space in the absence of a local ordinance providing for such a credit.

A. Procedural History

On June 16, 2004, Branciforte filed a petition for writ of mandamus and administrative mandamus and a complaint for declaratory relief. In its prayer for relief, Branciforte sought, among other things, a writ directing the City and the City's Director of the Planning Department (Director) to issue a credit in "an amount equal to the value of the land held as open space useable for recreational purposes and the improvements made," which allegedly totaled at least $118,250.

By order filed on April 26, 2005, the superior court issued a writ of mandate "compelling the City of Santa Cruz to allow a credit against the park fees for the value, at the time the fee was imposed, of that portion of the private open space in the development that is suitable for active recreational use." A formal judgment with the identical language was filed on May 5, 2005. The City and its Director appealed.

B. Administrative Record

The owners of property located at 1430-1438 North Branciforte Avenue applied for a conceptual planned development permit to demolish four existing units and construct 10 single-family, two-story dwellings. By resolution adopted on September 7, 1999, following a public hearing to consider the permit, the Santa Cruz City Council (City Council) made certain findings and approved a conceptual planned development permit subject to attached conditions of approval and to a reduction of the subdivision to nine units "to accommodate guest parking and a higher level of amenity of common open space."² One condition of approval required the tentative map and design permit application to be submitted within six months. Another condition specified in part: "The property lines for the Tentative Map shall be reconfigured to provide a common area in the front yards adjacent to the street. The common area shall be landscaped and maintained by the Homeowners Association."

The owners of the property located at 1430-1438 North Branciforte Avenue applied for a tentative tract map, design permit, and demolition authorization to demolish the four existing units and construct nine single-family, two-story dwellings. By resolution adopted on October 24, 2000, following a public hearing, the City Council approved "Permit 00-052 requesting approval of a Tentative Map, a Design Permit and Demolition Authorization" subject to numerous conditions of approval. Condition No. 2 included: "The final map of the subdivision shall be submitted showing compliance with all the provisions of Title 23 of the Santa Cruz Municipal Code, or with approved exceptions thereto." Condition No. 11 stated: "The specified common area shall be designated as a public utility easement."

By resolution adopted on July 22, 2003, the City Council approved the Final Map for Tract No. 1435, the Branciforte Heights Subdivision, and authorized and directed the City Manager to execute the Branciforte Heights Subdivision Agreement with Branciforte. The following day, the City and Branciforte entered a subdivision agreement regarding the performance of the work and agreeing, among other things, that Branciforte Heights would "pay all fees and taxes required by law."

In a letter dated September 11, 2003, to the City's Chief Building Official, William Thurlow on behalf of Branciforte asserted: "As per 23.28.020.1 of the Santa Cruz Municipal Code, the Branciforte Heights subdivision is dedicating usable open space for the purpose of providing park and recreational facilities to serve the subdivision. In doing so, the subdivision is not required to pay Park and Recreation `in lieu' fees."

Section 23.28.020.1 of title 23 of the Santa Cruz Municipal Code requires a subdivider to dedicate land and/or pay in lieu fees as a condition of approval.³ Title 23 contains no provision for a private open space credit.

In a letter dated December 16, 2003 to the City's Planning Department Director, Thurlow thanked the director and his staff for considering his request for a private open space credit and acknowledged that the request had been "denied based on Planning Staff's reading of the Park Dedication Ordinance (23.28.020.1) of the Santa Cruz Municipal Code." Thurlow asserted in his letter that the "Branciforte Heights subdivision as a planned development is eligible to receive a Park Dedication Fee Credit for the 4040 square foot common area provided on Parcel A."

Branciforte began to obtain building permits for various lots and pay the assessed park and recreation fees. On December 18, 2003, a $6,000 park and recreation fee was imposed and paid in connection with issuance of a building permit for 20 Camille Lane. On January 13, 2004, a $6,315 park and recreation fee was imposed and paid in connection with issuance of a building permit for 10 Camille Lane and a $6,315 park and recreation fee was imposed and paid in connection with issuance of a building permit for 30 Camille Lane. On January 21, 2004, a $1,011 park and recreation fee was imposed and paid in connection with issuance of a building permit for 35 Camille Lane and a $7,005 park and recreation fee was imposed and paid in connection with issuance of a building permit for 40 Camille Lane.

In a letter to Thurlow dated January 21, 2004, Director Eugene Arner responded to Branciforte's demand for a private open space credit. Director Arner stated that open space amenity was related to the approval of Branciforte's planned development, which permitted deviations from standard zoning. He explained that Branciforte had provided "4,040 square feet of common open space, within the development as well as a common landscape area along Branciforte Avenue" in exchange for certain variations and increased density. He noted that only six or possibly seven lots would otherwise have been allowed under standard requirements rather than the nine lots authorized in the planned development process. He concluded that "the open space should not be credited towards the required park land dedication fees" because "otherwise, the Planned Development designation would basically be illusory as a means of obtaining a waiver of strict zoning criteria." Director Arner also stated that private open space credit would have been reflected in the conditions of approval if such credit had been contemplated.

In a letter to Director Arner dated February 12, 2004, a law firm representing Branciforte asserted that the City had erred in refusing to give an open space credit and the City was required to provide such credit. Director Arner stated in his responding letter, dated March 12, 2004, that it was the City's position that "State law does not mandate park fee credit. . . ." He explained: "The approval of a Planned Development is based on a higher level of amenity than would be required under a typical subdivision. The use of open space within the Branciforte Heights Planned Development is one of the amenities that allowed the project to be approved. In exchange for the higher level of amenity, the applicant received a higher density than what could have been approved under the R-1-5 lot standards." He also provided a legal memorandum from the City Attorney.

The law firm representing Branciforte...