A city is not required to provide credit against park and recreation fees when it requires a developer to dedicate private open space, the Sixth District Court of Appeal has ruled.

In an opinion interpreting the Quimby Act, the unanimous three-judge appellate panel reversed a lower court’s decision ordering the City of Santa Cruz to provide credit for the dedication of private open space in a small subdivision. “[L]ocal legislatures retain the flexibility to implement a private open space credit as they determine reasonable under local conditions,” the Sixth District ruled.

In 1999, Branciforte Heights, LLC, applied for a conceptual planned development permit to demolish four houses on Branciforte Avenue and replace them with 10 new single-family units. The City Council approved the application but cut the number of new houses to nine. The council also required that the subdivision be reconfigured so that there would be a common area in the front yards that would be maintained by the homeowners association.

One year later, the council approved a tentative map, design permit and demolition authorization. Approval again came with the condition of a common area. In July 2003, the council approved the final map. Shortly thereafter, Branciforte Heights notified the city that the developer would not be paying park and recreation in lieu fees because it was dedicating usable open space for parks and recreation to serve the subdivision.

The city insisted that the usual fee still applied. Under the city’s municipal code, a planned development permit allows a developer to deviate from the underlying zoning if the project provides more amenities than usual. In this case, Branciforte was able to build at least two additional houses, but one of the required amenities was the common open space.

As it began pulling building permits in December 2003, the builder paid the fees, eventually paying a total of $39,966. The developer then sued the city, demanding $118,000 in credit for the 4,000 square feet of open space and improvements. Last year, Santa Cruz County Superior Court Judge Robert Yonts ordered the city to “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.”

The city appealed, and the Sixth District ruled that Judge Yonts read the statute incorrectly.

At issue was an interpretation of the Quimby Act (Government Code § 66477). Subdivision (e) of § 66477 says that common interest developments “shall be eligible to receive a credit, as determined by the legislative body, against the amount of land required to be dedicated, or the amount of the fee imposed, pursuant to this section, for the value of private open space within the development which is usable for active recreational uses.” The developer argued this language commanded the city to provide a credit. The city contended the phrase “as determined by the legislative body” gave the city an option.

Citing extensively from the legislative history, the court sided with the city. The language in question was inserted into the Quimby Act in 1982 at the same time that the state Legislature mandated that a developer’s dedication of public park and recreational improvements “shall be a credit” against park and recreation fees. The Legislature did not go that far with regard to the dedication of private open space.

“[T]he Legislature did not go so far as to dictate the precise parameters of any private open space credit or to define the meaning of ‘usable for active recreational uses.’ Instead it left it up to local legislative bodies to determine the exact criteria and procedures for granting a credit,” Presiding Justice Franklin Elia wrote for the court.

Santa Cruz has no ordinance that provides for a credit for private open space, the court noted. Without such an ordinance, the city has no duty to provide Branciforte Heights with a specific amount of credit, and the developer has no right to a credit, the court concluded.

The Case:
Branciforte Heights, LLC v. City of Santa Cruz, No. H028864, 06 C.D.O.S. 3217. Filed April 19, 2006.

The Lawyers:
For Branciforte Heights: John Barisone, Atchison, Barisone, Condotti & Kovacevich, (831) 423-8383.
For the city: Edward Chun, Bosso Williams, (831) 426-8484.