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Home My WebLink About25-Council Office -- 4- .' . c '-" ",- LAW OFFICES PARKER ANI) COVERT CLAYTON H. PARKER SPENCER E. COVERT, JR. ,., f>AHTNEH"'..,P Of f'flOfC55!ONM COHf'OHAIION~, AREA CODE 714 TELEPHONE 973 - 2137 MARGARET A. CHIDESTER P. ADDISON COVERT SUSAN l. STRAIGHT DANA W. PHilLIPS CHARLES S. SCOLASTlCO E. WALLACE DINGMAN 1901 EAST FOURTH STREET. SUITE 312 SANTA ANA, CALIFORNIA 92705 REF. OUR FILE October 24, 1985 T' , I Mayor and Common Council City of San Bernardino 300 North D Street San Bernardino, CA 92418 Re: San Bernardino City Unified School District's Appeal From the Legislative Review Committee's Decision of October 15, 1985 (Landtech Inc.) Attention: Mayor Wilcox and Honorable Members of the Common Council This firm represents the San Bernardino City Unified School District with respect to the above-entitled matter. The San Bernardino City Unified School District hereby appeals the decision of the Legislative Review Committee made on October 15, 1985 in connection with the petition of Landtech Inc. to exempt its project entitled Sun Pointe Village from payment of school facilities fees pursuant to Resolution Numbers 85-337 and 85-354. This appeal is based on the following grounds: 1. The District did not receive adequate notice of the Legislative Review Committee's hearing of October 15, 1985; and 2. Landtech Inc. has not established that it qualifies for an exemption from payment of school facilities fees. I DISTRICT DID NOT RECEIVE ADEQUATE NOTICE OF THE LEGISLATIVE REVIEW COMMITTEE HEARING OF OCTOBER 15, 1985 The Dist~ict did not receive written notice of the October 15, 1985 Legislative Review Committee hearing on Landtech Inc.'s Petition for Exemption From School Fees. _25": -- -+ - - - .1"".. LAW OFfiCES PARKER AND COVERT Hayor and Common Council City of San Bernardino October 24, 1985 Page two - ,...... ..... On October 9, 1985, the District received informal oral notice of a hearing to be held on the Landtech Inc. Petition, however, said notice was inaccurate in that the District was advised that the hearing on Landtech's Petition would be scheduled for 2:00 p.m. on October 15, 1985. The actual hearing time was 12:30 p.m. on October 15, 1985. The District received no information or communications which advised it that the actual hearing time of Landtech Inc.'s Petition was earlier than 2:00 p.m. on October 15, 1985. The failure of City to provide the District with adequate notice of the hearing scheduled for October 15, 1985, resulted in the District being denied an opportunity to present its case against Landtech Inc.'s request for exemption from school facilities fees. As the District is the real party in interest with respect to payment of school facilities fees and exemptions thereto, due process requires the District to be notified of such hearings and afforded an opportunity to rebut the evidence presented by Landtech Inc. Such failure by the City to notify the District of the Legislative Review Committee's hearing of October 15, 1985 is a denial of the District's right to due process and accordingly, the decision of the Legislative Review Committee of October 15, 1985 should be vacated by the Mayor and Common Council. II LANDTECH INC. DOES NOT QUAL! FY FOR AN EXEMPTION TO SCHOOL FACILITIES FEES The District was not present at the Legislative Review Committee hearing of October 15, 1985, however, documents provided to the District by the City of San Bernardino clearly indicate that the basis of Landtech Inc.'s request for exemption to Resolution 85-337 (school facilities fees) rests in Section 9-J of said resolution. The documents received hy the District from the City are an October 7, 1985 letter addressed to City Attorney from Landtech Inc., a September 13, 1985 letter addressed to Steven C. Miller from Nevada National Bank and a memo regarding the Legislative Review Committee meeting of Octoher 15, 1985. These documents are attached hereto' as Exhibits A, B, and C respectively and incorporated herein by this reference. - ..j. '- LAW OFFICES PARKER AND COVERT Mayor and Common Council City of San Bernardino October 24, 1985 Page three ""'" ,"-, Section 9-J of Resolution 85-337 provides for an exemption to the payment of school facilities fees if: "Residential developments for which verified, firm commitments for financing are in place and recorded within 30 days following the date of the adoption of this resolution." Thus, an exemption under Section 9-J is proper only where the residential developer establishes that verified, firm commitments for financing are in place and recorded within 30 days following the date of adoption of Resolution 85-337. Resolution 85-337 was adopted on August 19, 1985 and thus, verification of a firm commitment for financing must be in place and recorded before Septemher 18, 1985. District is advised that the only substantive documents presented by Landtech Inc. at the hearing of October 15, 1985 to substan- tiate its exemption pursuant to Section 9-J is Exhibit B. (No documents other than Exhibit A, Band C were presented to the District on its request for copies of the documents presented at the Legislative Review Committee hearing of October 15, 1985 with respect to Landtech Inc.'s request for exemption.) Clearly, Exhibit B, does not indicate on its face that it has been recorded nor is there any other evidence that said letter or any other document constituting a verified, firm commitment for financing was recorded prior to September 18, 1985. Consequently, Landtech Inc. does not qualify for exemption pursuant to Section 9-J. Moreover, the September 13, 1985 letter does not constitute a verified, firm commitment. The September 13, 1985 letter states that financing is conditioned upon "review and approval by lender's senior loan committee at lender's sole discretion". Such conditional language is inconsistent with Section 9-J's requirement that "firm commitments for financing" are in place prior to September 18, 1985. Notwithstanding the fact that Landtech Inc. did not establish a recorded document evidencing verified, firm commitments of financing in place as of September 18, 1985, the Legislative Review Committee in its hearing of October 15, 1985 acted as follows: "Committee recommends approval of Landtech's request for exemption giving Landtech 30 days to complete all necessary documents." (Exhibit C) .... +- #"'" ,- ""'. LAW OFFICES PARKER AND COVERT Mayor and Common Council City of San Bernardino October 24, 1985 PaRe four '~,;p' -.. This action taken by the Legislative Review Committee is not consistent with Section 9-J in that it allows Landtech to put financing in place subsequent to September 18, 1985 and allows the document evidencing such financing to be recorded subsequent to September 18, 1985. Thus, the Legislative Review Committee is acting in excess of the authority granted to it by Resolution 85-337. Finally, the City Attorney has determined that the letter of September 13, 1985 does not qualify Landtech Inc. for an exemption to payment of school facilities fees pursuant to Section 9-J. (Exhibit D) CONCLUSION For the above stated reasons, San Bernardino City Unified School District respectfully requests the Mayor and Common Council to vacate the October 15, 1985 decision of the Legislative Review Committee. Respectfully submitted, PARKER AND COVERT (?j fh /~ ~ / l,cL~.J -tL e' CHARLES S. SCOLASTICO, Attorneys for San Bernardino City Unified School District CSS: ijdl155 cc: City Attorney's Office Attn: John Wilson San Bernardino City Unified School District . + -.. - v c \., "-" ",. '"'''''' DL1~~ I \ \ ~~~ ~:~ ~~ . ~\~\.<\-~ ~\~~cl~~ -+\'L-', \\\\\.\.\"\\\"" ~ ~ ~l~) ~ ~ ~~~ ~~~\N1~\ ~\\.\ ~S\.' ~ ~ ~~ ~c:i'\~~ ~a~ '{,~~('. <:\ . y '\ _\\ ~C\~ ~\. \I;;$~""~ ~\ \C\~ . +>~<<,-a.~ ~~~ ~~~~~~ ~~~~ 'f-\~~ ~~ ~~~~ ~ ~~~("\ ~ ~ ~~\.\<\~~~ ~ ~ ~ ~ C\~~~ <\\.~C\ , ~~~~ ~,,\~~ ,~~~~cl. "(\~~ ..\~~..0- ~ \\~\\~ ~n~ ~ \. - . .s<)O\.... ~ U\\ ~~ ~ ~~~~. Or ~~~ ~ ~\'~(\~ ~ ~ill'\ ~~ ~t:s<'\~~ ~~~\~ ~""\.~~ ~ ~~~ ~'t\ ~ ~~~ ~~ r'\~~ ~ ~~~,.) ~ ~ ~\.rr\~ ~~C\~~~ ~ ..C'\\~ ~t'~"\.[\.~~ , . ~~~~ ~ ~~ ~ ~ \S$'-\\~ \f\\ ~\ ~ ~ ,.rm~ ~~"' ~~~ ~ ~ P'~, ' \. . .j..- \,..,.,. "'. ,,; . ~~~ \ ~ m ~ ~\.~~~~-l,;;"l:\r\ ~. - , ~~ ~~~CL. ~~~~, <t::,~ "A- '-\ \ ~ \ -- - .-r---' ,_. . \..- ~ . r.-.... '-' f1fiJ ..... ,-,j / Nevada National Bank September 13, 1985 ~ Mr. Stephen'C. MIller LendTech Inc. 6133 Brl~tol perk.ey 1270 ~ Culver CIty, CA 90230 RE: Sunpolnte Vlllege Deer ~Ir. Mill er: Pleese be edvlsed thet Nevede NatIonal Bank (herein "Lender") has approved f Inanc'lng on the above referenced epartment development In eccordance .lth the fol lowIng terms and condItIons: LOAN AKlUHT: S2,500,000 TERM: ItlTEREST RATE: 12 Months 2.00% In excess of Lender's PrIme Rate adjusted dally. BQP.ROWER : The borrower shall be a JoInt venture comprised of Young AmerIcan Development of Nevada end LendTech Inc. FEES: 1.50% (S37,500) plus additional co~t~ of establishment of a constructIon control account to be determIned. SECVRITI: The loen shal I be unsecured. .' GUARAtlTOR ( S): Norm Peterson, Jack LIbby. Robert Bugbee, Arnold Darlnl and theIr .Ives. The above commItment Is subject to rev Ie. and approval by Lender's SenIor Loen Committee at Lender's sole dIscretIon. Steve, please feel free to call me If you need any addItIonal InformatIon or have any que tlons. ;:],~cer~I~' ''(/ I /.. Rob . AssIstant VIce PresIdent cc. Young AmerIcan Development EXHIBIT B BY fEDERAL EXPRESS R.ol Eslolr D.porlm.nl 233 South Fourth SI,. P.O, Bo% 18415 Los V.gos. N'IJodo 89114 / Phon,,702/386-3719 ... . ... .1 "'..._.l_ ,,'...:"'...., R....,.,.,f"'9'\..._.:"" -- -40-- -'- - - 'l" c LEGISLAT''''''E REVIEW COMY""'TEE -- '-~ , ~J October 15, 1985 ATTENDEES: Councilman Jack Strickler, Councilman Jack Reilly, Councilman Gordon Quiel, Council Executive Assistant - Phil Arvizo, Mayor's Administrative Assistant - Richard Bennecke, Pinance Director Warren Knudson, Deputy City Attorney- John Wilson, Deputy City Administrator Ray Scbweitzer, Purchasing Agent - Dean Meech, Park Superintendent - James Parker, Public Buildings Supt. - Wayne OVerstreet, Planning Director - Prank Schuma; Building 'Safety Supt. - Jack Rosebrough, GTE Representative - Pat Leather, Land Tech and Allied Pinance Representatives. 1. UTILITY TAX EXEMPTIONS - Discussion ensued on the possibility of originating a program that will automatically (on anniversary date) furnish an application to citizens who are eligible for a Utility Tax Exemption. Issue was referred to Mr. Warren Knudson for study, coordination with the ut~~anies and report back within thirty days. ~ L~~TECB, INC. RE SUN POINTE VILLAGE - SCHOOL IMPACTION Committee recommends approval of LandTech's request for exemption giving LandTecb thirty days to complete all necessary documents. 3. ORDINANCE GRANTING THE AUTHORITY TO MAKE EMERGENCY PURCHASES - Item tabled. ORDINANCE ELIMINATING REQUIREMENT OF OF BIDS AND AUTHORIZING PURCHASING AGENT TAIN LIST OF SUPPLIERS AND TO MAIL REQUES'!' tabled. SECOND PUBLICATION TO ESTABLISH/MAIN- FOR BIDS - Ite~ 4. ORDINANCE - INCREASING EXPENDITURE LIMITATIONS, FROM $4,000 TO $5,000, FOR PUBLIC PROJECT WHICH MUST BE CONTRACTED FOR - Committee recommended approval. 5. REVIEW OF MUNICIPAl. CODE SECTIONS 19.62.050 AND 19.62.060 RE FENCES, HEDGES, WALLS - Item referred to Plan- ning Director for review and recommendation to Committee. EXHIBIT C '~'P'...::",",.."'~", ~:"5lI{-":~""""'1~~~......,.~......_.. -...-----.,.- ..~_._""-'" _.__..___ ~""""'."_"_____.,_ __ ._._ __,. _. ~._~_..._ ,~ - ~. "5:::;::':':- C', , \ ., I ,0.,.., ~ _,:,Y~$~~; _I - ~'.-:J- ,....- \:.:, CI'JiY~P.,SAN BERNARDINO :'\.' .~~-.' I':J~ - \- '. ',' .- ":\ - - .....--- . ....,(..,' \'\. .'..... /(... - ... c.' C ~I~., "\ tHE t!O'" ,'.-. "- '-" ..+'" 300 NOR1H "D" SlREEl, SAN BERNARDINO, CALIFORNIA 924'8 RALPH H, PRINCE CITY AT10~NEY September 27, 1985 14.9917 Gary W. Smith Attorney at Law Suite 408 First American ~uilding 323 Weat Court Street San Eernardino, California 92401 Re: Sunpointe Village (LandTech, Inc.) Dear Mr. Smith: I am in receipt of your letter of September 23, 1985, aski~g whether the letter of the Nevada National Bank dated September 13, 1985, approving financing for Sunpointe Village complies with the exemption provisions of Subsection 9J of Resolution No. 85- 337, the "school impaction" fee resolution. The financing is conditioned by the following language in the letter: "The above commitment is subject to review and approval by Lender's Senior Loan Committee at Lender's sole discretion." Thus, it was a conditional and not, in my judgment, a verified firm commitment for financing in place and recorded as required by Subsection 9J, 2S was previously determined by John ~ilson, Deputy City Attorney on September 16 and on September 19, 1925. VC"Y ,trul: YOujr,s'O CJ /UpYf>7---;:U~U-/ RALPH H. PRINCE City 'Attorney RHP:ca cc: Frank Ayala John Wil son (' " \..' <. \';', , EXHIBIT D