By Joel Ellinwood, AICP Although we are only entering the second quarter of 2006, it is safe to predict that the just published case of Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 will be one of the top ten land use cases for the year. The decision includes discussion of critical issues for litigation of cases involving the Subdivision Map Act (Gov. Code, § 66410 et seq.), the Quimby Act (the section of the Subdivision Map Act limiting park fees and dedications, Gov. Code, § 66477), the Mitigation Fee Act (Gov. Code, § 66000 et seq.), and the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). Once again a court is required to parse the obtuse and conflicting statutory language adopted by the legislature to provide some semblance of clarity in these areas of California development law. The petitioner in this case (Branciforte fn1 Heights, LLC) applied to the City of Santa Cruz for a planned development permit to demolish four existing buildings and re-subdivide into 10 single family lots. The City approved, but with a reduced density of 9 lots and the requirement of a 4,040 square foot common open space adjacent to the street to be landscaped and maintained by a homeowners association but designated a “public utility easement”. It is unclear whether the area would be open for the use by the general public, but the holding in the case assumes that it is private property held in common by a homeowner’s association. The City also required the developers to pay park and recreation “in lieu” fees upon application for building permits. The developer objected, claiming credit for the required dedication of usable open space. The City denied the request stating that the open space was a “higher level of amenity” that allowed the PUD to be approved at higher than otherwise permissible density for the underlying zone, and therefore it was not eligible for fee credit. The developer paid a total of $39,966 in park fees and filed a petition for writ of mandate to compel the City to refund the amount wrongfully collected. The trial court ruled for the developer and ordered the City to allow a private open space credit against the park fees extracted from the developer. The City appealed. The City claimed the suit was barred on three grounds: expiration of the statute of limitations, failure to present a claim under the Tort Claims Act, and failure to exhaust administrative remedies. The key rulings of the Court of Appeal are: * Statute of limitations for an action protesting failure of the City to grant fee credits for private open space is governed by Mitigation Fee Act, not the Subdivision Map Act provision for challenging conditions of approval. * The 180-day statute of limitations for actions for fees or actions under protest under the Mitigation Fee Act only begins to run when and if the local agency gives the 90-day notice of right to pay under protest pursuant to Government Code section 66020 (d)(1). Since no notice was given, the 180-day statute of limitations could not be determined. The action would only be subject to equitable defense of laches. * No Tort Claims Act (Gov. Code, § 810 et seq.) compliance is necessary for actions under the Mitigation Fee Act, since the plaintiff is seeking refund of its own money alleged to have been wrongfully extracted, and the policy of presentation of a claim prior to filing suit was met through the Mitigation Fee Act “payment under protest” procedure. * The City cannot impose failure to apply for the equivalent of a zoning variance (as contended by the City) in order to exhaust administrative remedies in fee or exaction protest cases. * The Quimby Act does not mandate the City to grant open space credit for private open space in common interest developments. It is within the discretion of the City to determine whether or not, or under what circumstances credit should be given for private open space. The City may have a duty to adopt an ordinance to establish standards and criteria for the eligibility for fee credits to govern its exercise of discretion in this decision, but the developer did not seek that remedy. The developer in this case got past the procedural hurdles that stymied payment under protest claims in other reported cases. See, e.g. Capistrano Beach Water District v. Taj Development Corporation (1999) 72 Cal. App. 4th 524; Utility Cost Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185; California Psychiatric Transitions, Inc. v. Delhi County Water District (2003) 111 Cal. App. 4th 1156; Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal. 4th 685. See, also “Water and Sewer Connection Fees Payment Under Protest”. Unfortunately, the door slammed shut on the substantive claim, given the court’s interpretation of the admittedly ambiguous language of the Quimby Act. The developer and its attorneys should at least be awarded a public service prize for obtaining greater clarity in a wide scope of legal issues in development law. Somehow I suspect that is scant satisfaction. fn1 The name derives from Villa Branciforte, named for the viceroy of New Spain, the Marques of Branciforte, an early California failed real estate development. It is described as the least successful of the early pueblos in Spanish California. It was founded in 1797 and is now incorporated into the present-day City of Santa Cruz. The concept was to found a new type of secular pueblo in California using retired soldiers and their families. The soldiers would become self-supporting colonists and also provide a ready reserve of additional military forces to defend the province. Unfortunately, no retired soldiers could be induced to come to California. The site for the new pueblo also was problematic. The governor selected a location adjoining the lands of Mission Santa Cruz, but the missionary priests bitterly objected (California’s first NIMBYs). Also the funds for founding the town were hopelessly inadequate. Nearly all of the forty original settlers of the pueblo were men convicted of petty crimes elsewhere in New Spain and banished to California. Not surprisingly, the pueblo did not flourish. In 1802 the government suspended all further support for Branciforte. See Branciforte is also Sicilian for the nickname “strong-claws.” Joel Ellinwood, AICP is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.