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Cll ". OF SAN BERNARDI: ) - REQU[ T FOR COUNCIL AC'.. ~ON
From:
Ralph H. Prince
Subject: Hearing on Claim of Exemption
from School Impaction Fees by
Landtech, Inc.
Dept:
City Attorney
Date: January 23, 1987
Synopsis of Previous Council action:
Various hearings prior to December 8, 1986, at which time the
court issued an order that findings of fact and conclusions of
law be determined by the Mayor and Common Council with regard
to Saab v. City, San Bernardino Superior Court No. 234561.
(Landtech)
12/22/86 adopted Resolution No. 86-515 approving and adopting
the findings of fact and conclusions of law in the matter of the
request for exemption of Landtech, Inc: from the payment of school
impaction fees.
Recommended motion:
Set date and time for court-ordered hearing on claim of exemption
from school impaction fees by Landtech, Inc.
/r::;~~~
/ Signature
I..."
Contact person:
John F. Wilson
FUNDING REQUIREMENTS:
Amount:
None
Phone: 5162
Ward: N/A
Sou rce: N/A
Finance:
Supporting data attached:
Yes
Council Notes:
75-0262
Agenda Item No.
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CI'. OF SAN BERNARDI~ _ J - REQUE T FOR COUNCIL AC\. ..ON
STAFF REPORT
Re: Hearing on LandTech, Inc.
On December 8, 1986, Superior Court Judge Bob M. Krug remanded
the matter of Saad v. City of San Bernardino to the San
Bernardino City Council. The case arose from the claim of
exemption from the payment of school impaction fees made by
LandTech. The judge issued the following instructions with
respect to the remand.
"What I'm going to do is remand the
matter back to the City/respondent for the
purpose of conducting a further hearing to
clarify, number one, whether the exemption
is granted, which is the only decision that
is now in existence, or whether it is denied
by further action of the City Council.
And they simply can't table it and do
nothing. They have got to take some action
on it and make a decision. They are going
to grant it or deny it.
And when they talk about whether they
should deny or grant it, I want them to keep
in mind what the constitutional provisions
of this section require, because if it comes
back before the Court and that aspect has not
been taken into consideration, I have already
explained to you I don't think the ordinance
is worth the paper it is written on as far
as the constitutionality of it is concerned,
but I'm not going to make that finding now.
I merely stated that to give you some
indication of what the problem is as far as
I'm concerned.
And in the reconsideration of whether
a final decision as to whether the exemption
is granted or denied, the City Council should
set forth in the record a basis for their finding
as to the requirement of 'verification,' and
'in place,' 'firm,' and 'recorded,' specific
findings on those requirements of the ordinance,
and with that record, then we can decide, I suppose,
whether the whole thing is unconstitutional if
it comes back before the court.
But I need that. That has got to be in
the record."
Pursuant to the above, it is recommended that the Mayor and
Common Council schedule a hearing in this matter and that
1/23/87
75.0264
notice be given to all parties of the date and time of such
hearing. The hearing should be limited to the taking of new
evidence and to responses to the proposed findings of fact and
conclusions of law. These proposed findings and conclusions
will be in the form previously adopted by the Mayor and Common
Council as Resolution No. 86-515, a copy of which is attached
hereto.
1/23/87
1
RESOLUTION NO. 86-515
2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING AND
ADOPTING THE FINDINGS OF FACT AND CONC~USIONS OF LAW IN THE
3 MATTER OF THE REQUEST FOR EXEMPTION OF LANDTECH, INC. FROM THE
PAYMENT OF SCHOOL IMPACTION FEES.
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. The Mayor and Common Council of the City of San
7 Bernardino do hereby approve and adopt the Findings of Fact and
8 Conclusions of Law in the matter of the request for exemption of
9 LandTech, Inc. from the payment of school impaction fees, a copy
10 of which is attached hereto, marked Exhibit wAw and incorporated
11 herein by reference.
12 I HEREBY CERTIFY that the foregoing resolution was duly
13 adopted by the Mayor and Common Council of the City of San
14 Bernardino at a n i'lnjonrnp..n rp..gnl i'lr
meeting thereof, held on
15 the
Dp..r.p..mhp..r
, 1986, by the
22nn day of
16 following vote, to wit:
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AYES:
Council Members Estrada. Reilly. Hernandez
Marks. Ouiel. Frazier. Strickler
NAYS:
None
ABSENT:
None
~~6d/~
/ City Clerk
12/12/86
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1 The foregoing resolution is hereby approved this ~~- day
2 of
December
, 1986.
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Approved as to form:
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8 City A torney
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12/12/86
1 In the matter of the
exemption of LandTech, Inc.
2 from the payment of school
impaction fees pursuant to
3 Subsection 9J of San
Bernardino Resolution No.
4 85-337
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FINDINGS OF FACT AND
CONCLUSIONS OF LAWS IN
SUPPORT OF DENIAL OF
EXEMPTION FROM SCHOOL
IMPACTION FEES
6 INTRODUCTION
7 On December 8, 1986, the Petition for Writ of Mandate filed
8 by LandTech, Inc. was heard in the Superior Court of San
9 Bernardino. The court remanded the matter to the Mayor and
10 Common Council for further proceedings. Pursuant to the
11 instructions of the Court, the Mayor and Common Council now make
12 the following findings of fact and conclusions of law.
13 FINDINGS OF FACT
14 1.
At all times pertinent hereto, Section 9J of San Bernardino
15 Resolution No. 85-337 (hereinafter -exemption-) provided:
-The provisions of this resolution shall
not apply where the residential development
is:
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24 2.
Residential developments (sic) for which
verified, firm commitments for financing
are in place and recorded within thirty
days following the date of the adoption
of this resolution.-
That the purpose of the exemption was to provide relief
25 from payment of school impaction fees to those persons who,
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acting without notice of the school impaction fees, had reached
an extremely advanced stage in the financing and processing of
12/12/86
EXHIBIT A
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1 applications related to the development of a residential housing
2 project on the effective date of the resolution.
3 3. -Verified- as used in the exemption means that all
4 documents respecting such commitment appear to have been executed
5 by the borrower and lender in the usual course of business.
6 4. -Firm commitment- as used in the exemption means that such
7 commitment was given without notice of the requirement for school
8 impaction fees, and the terms, conditions and circumstances of
9 the financing agreed upon by the borrower and lender are such as
10 to make it reasonably foreseeable that there would be a
11 substantial financial hardship, or loss of ability to proceed in
12 a timely manner with the construction of the residential housing
13 development project, incurred by the borrower if he or she were
14 required to obtain additional funding for purposes of making
15 payment of school impaction fees. And, it further reasonably
16 appears from such terms, conditions and circumstances that the
17 terms of the loan commitment are not unconditionally revocable by
18 the lender.
19 5. -In placeR as used in the exemption means that there must
20 be evidence that the commitment agreement is a current, bona fide
21 commitment by the lender.
22 6. -Recorded- as used in the above-cited provision means that
23 where the evidence of such financing is normally recorded in the
24 office of the County Recorder, e.g. bond financing, the
25 necessary documents have been so recorded or there is a
26 reasonable expectation that such documents will be so recorded in
27 a timely manner following the grant of the exemption.
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12/12/86
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1 7. The resolution did not require that the request for
2 exemption be made in any particular form.
3 8. The letter from Nevada National Bank, dated September 13,
4 1985, was submitted by LandTech, Inc. in support of its request
5 for exemption under Section 9J of City of San Bernardino
6 Resolution No. 85-337. Said letter contains the following
7 language:
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12 9. No commitment was given by the lender until after borrower
13 and lender were on notice of the school impaction fees.
14 CONCLUSIONS OF LAW
15 1. The letter submitted by LandTech, Inc., in support of its
16 request for exemption was a verified commitment for financing.
17 2. The letter submitted by LandTech, Inc., in support of its
18 request for exemption was executed after notice of the
19 requirement for payment of school impaction fees.
20 3. The letter submitted by LandTech, Inc., did not evidence a
21 Wfirm commitmentW for financing in that the terms and conditions
22 of such letter do not make it reasonably foreseeable that the
23 borrower would face substantial financial hardship or loss of the
24 ability to proceed in a timely manner with the construction of
25 the residential housing development. Nor does it appear
26 therefrom that the terms of such commitment were not
27 unconditionally revocable by the lender prior to execution of the
28 loan.
WThe above commitment is subject to
review and approval by Lender's Senior
Loan Committee at Lender's sole discretion.w
12/12/86
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1 4. The letter submitted by LandTech, Inc., in support of its
2 request for exemption was evidence that the commitment was not
3 Win placew.
4 5. The letter submitted by LandTech Inc., in support of its
5 request for exemption does not qualify LandTech, Inc., for an
6 exemption from the payment of school impaction fees under the
7 exemption set forth at Section 9J of City of San Bernardino
8 Resolution No. 85-337.
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12/12/86
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