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HomeMy WebLinkAbout05.a. Appeal Hearing re Capacity Fees for 2500 Annalisa Drive (Caffe Classico)5.a. APPEAL HEARING REGARDING CAPACITY FEES FOR 2500 ANNALISA DRIVE, CONCORD (APN 159-362-001) Caffe Classico HEARING AGENDA January 7, 2016 1. Call for public comment 2. Hearing a. Open hearing b. Call for Staff and District Counsel introduction C. Receive presentation from property owner, property owner's attorney, or both d. Staff response e. Response from property owner or property owner's attorney, if any f. Board questions g. Close hearing 3. At the conclusion of the hearing, the Board of Directors may: • deliberate, vote on the matter, and direct staff to prepare written findings reflecting the Board's decision for adoption at a future meeting; or • continue the matter to a future meeting for further deliberations. NOTE: Attorney Craig Labadie will advise the Board on this matter. Central Contra Costa Sanitary District ' BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: January 7, 2016 Subject: APPEAL HEARING REGARDING CAPACITY FEES FOR 2500 ANNALISA DRIVE, CONCORD, APN 159-362-001 (CAFFE CLASSICO) Submitted By: Danea Gemmell, Planning & Development Services Division Manager Initiating Dept./Div.: Planning and Development/ Engineering and Technical Services REVIEWED AND RECOMMENDED FOR BOARD ACTION: JM. Petit — Director of Engineering & Technical Services OL Kent Alm Counsel for the Roger S. Bailey General Manager ISSUE: A property owner has requested an appeal of a staff de ermination regarding the calculation of capacity fees and the placement of those fees o e property tax bill. District Counsel has directed that an administrative appeal hearing is appropriate. BACKGROUND: On August 6, 2015, the Board of Directors held a public hearing to place $114,970.47 in delinquent capacity fees ($102,974) and penalties ($11,996.47) for 2500 Annalisa Drive in Concord on that parcel's annual property tax bill. An excerpt of the meeting minutes covering the public hearing is included as Attachment 1. A copy of the presentation which includes the calculation of the capacity fee is included as Attachment 2. On November 17, 2015, the District received Notice of Claim from the property owner's attorney, Mr. Craig Nevin. This letter is included as Attachment 3. In the letter, Mr. Nevin asserts that the capacity fee is not owed because of statute of limitations and even if it were owed, it has been incorrectly calculated. The letter asserts that the collection of the capacity fee is not an "administrative action" and therefore is subject to a statute of limitations. District Counsel Kent Alm has prepared a response letter dated December 29, 2015 which is included as Attachment 4. This letter presents Mr. Alm's basis for asserting that the collection of the capacity fee is indeed an administrative action and therefore statute of limitations would not apply. In addition, the letter presents the basis for the capacity fee calculation and attempts to clarify what appears to be a misunderstanding of the building square footage. A timeline of events and significant communications is included as Attachment 5. As this appeal hearing will be a quasi-judicial proceeding and Mr. Alm has advised District staff on this matter in the past, attorney Craig Labadie will advise the Board of Directors on this item during the meeting. C:\Users\CGranzella\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\YTOD7IEQ\1-7-16 PP Caffe Classico.docx Page 1 of 2 POSITION PAPER Board Meeting Date: January 7, 2016 subject: APPEAL HEARING REGARDING CAPACITY FEES FOR 2500 ANNALISA DRIVE, CONCORD, APN 159-362-001 (CAFFE CLASSICO) A closed session has been scheduled at the end of this Board Meeting if the Board wishes to consult with Mr. Labadie regarding the threat of litigation related to this matter. ALTERNATIVES/CONSIDERATIONS: The Board of Directors could find that the fee was incorrectly calculated or that it was not appropriate to place the charge on the property tax bill. FINANCIAL IMPACTS: If the property owner's request is approved by the Board of Directors, all or part of the $114,970.46 charge could be refunded. COMMITTEE RECOMMENDATION: This matter was not reviewed by a Board Committee. RECOMMENDED BOARD ACTION: Hold the appeal hearing. Confirm staff's position that the capacity fee was correctly calculated and that it was appropriate to place the delinquent capacity fee and penalty on the owner's property tax bill. Attached Supporting Document(s): 1. Meeting minutes excerpt from August 6, 2015 Public Hearing 2. August 6, 2015 public hearing presentation 3. Letter dated November 17, 2015 from property owner's attorney 4. Response letter dated December 29, 2015 from Kent Alm 5. Timeline of events and significant communications C:\Users\CGranzella\AppData\Local\Microsoft\Windows\Temporary Internet Fi1es\Content.0utlook\YT0D71 EQ\1-7-16 PP Caffe Classico.docx Page 2 of 2 CENTRAL CONTRA COSTA SANITARY DISTRICT ATTACHMENT 1 Regular Board Minutes of August 6, 2015 h. Adopt Resolution No. 2015-027 rescinding Resolution No. 2008-111 and providing for concurrent annual performance evaluations of the Executive Management Team (General Manager, Secretary of the District, and District Counsel). Direct staff to secure the services of an arbitrator in accordance with the District's grievance procedure. It was moved by Member Williams and seconded by Member Causey to adopt the Consent Calendar. Motion passed by unanimous vote of the Board Members present. None. 4. CALL FOR REQUESTS TO CONSIDER ITEMS OUT OF ORDER 5. PUBLIC HEARINGS a. CONDUCT PUBLIC HEARING TO CONSIDER ADOPTING RESOLUTION NO. 2015-028 TO PLACE DELINQUENT CHARGES IN THE AMOUNT OF $114,970.47 FOR THE PROPERTY LOCATED AT 2500 ANNALISA DRIVE IN CONCORD (APN 159-362-001) (CAFFE CLASSICO) ON THE FISCAL YEAR 2015-16 CONTRA COSTA COUNTY TAX ROLL FOR COLLECTION This matter was reviewed by the Finance Committee on July 27, 2015. Planning and Development Services Division Manager Danea Gemmell reviewed the PowerPoint distributed prior to the Board meeting. She explained that in 2000, Mr. Tom Heffernan was the property owner and operator of Caffe Classico, a gelato and sorbet manufacturer. As a result of enforcement actions taken by the District's Source Control group for discharge violations, Caffe Classico went to Zero Discharge in February 2013. However, no capacity fees have ever been paid for the creation of the business and the manner of their calculation, plus interest and penalties, remains at issue. In approximately 2007, the business was sold and subsequently operated by a group of investors, but Mr. Heffernan remained owner of the property. Staff has been attempting to collect capacity fees since 2012 and the account was declared delinquent in early 2013. Interest and penalties were suspended in May 2013 at the request of Mr. Heffernan pending the outcome of a legal proceeding between the group and Mr. Heffernan. Last year, the District was informed that the arbitration had concluded but the terms were confidential. Since that time, staff and District Counsel have been in contact with Mr. Heffernan about payment of the capacity fees, with no resolution. Ms. Gemmell and District Counsel Kent Alm responded to questions from Board Members during which it was clarified that the amount of capacity fees requested to be placed on the tax roll at this time ($114,970.47) represents an exact calculation of fees from 2012 to 2013, including penalties and interest, and is the down payment, Book 64 — Page 93 CENTRAL CONTRA COSTA SANITARY DISTRICT Regular Board Minutes of August 6, 2015 based on square footage, for a capacity use agreement. The remaining balance, which represents the burden placed on the sewer system by Caffe Classico prior to 2012, is estimated to be a much larger amount. That amount is more difficult to calculate and further discussion with counsel in closed session is scheduled for August 26, 2015. In the meantime, the County deadline for submitting items for collection on the Fiscal Year 2015-16 tax roll is August 10, 2015. Mr. Alm noted that if the Board decided to take some other course of action on August 26, the resolution could be rescinded. It was staff's recommendation that the amount of $114,970.47 be authorized via resolution at this meeting for collection on the tax roll. President McGill opened the public hearing. Mr. Heffernan stated his belief that the strength data the District is using to calculate capacity fees is inaccurate. If he could provide some of the information presented during the arbitration hearing, he believes the matter could be resolved. Unfortunately, under terms of the arbitration agreement, that information is confidential. A lengthy discussion took place during which the possibility of obtaining some of the confidential documents for closed session review was raised. Member Causey and Member Williams said they would like to know the actual fees accrued, including interest and penalties, had the District not suspended its efforts to collect in May 2013. Member Pilecki requested information as to the cost of staff time devoted to this matter. Member Williams also said he would like to know what is staff's understanding of any purported agreement reached with Mr. Heffernan with regard to the capacity fees for Caffe Classico. President McGill closed the public hearing. It was moved by Member Causey and seconded by Member Williams to adopt Resolution No. 2015-028 to place delinquent charges in the amount of $114,970.47 for the property located at 2500 Annalisa Drive in Concord (APN 159-362-001) (Calle Classico) on the Fiscal Year 2015-16 Contra Costa County tax roll for collection. Member Pilecki commented that the Finance Committee wanted to put a much larger amount on the tax roll but, given the impending County deadline and the fact that the Board will soon discuss the matter in more depth in closed session when all five Board Members are expected to be present, he said he would vote in favor of the motion. Motion passed by unanimous vote of the Board Members present. PRESENT: Members: Causey, Pilecki, Williams, McGill ABSENT: Members: Nejedly Book 64 — Page 94 ATTACHMENT 2 Item No. 5.a. Public Hearing Unpaid Capacity Fees 2500 Annalisa Drive, Concord Danea Gemmell Planning & Development Services Division Manager August 6, 2015 Central Contra Costa Sanitary District 2500 Annalisa Drive, Concord SUMMARY • Former Light Industrial/Office use, now houses Caffe Classico, a manufacturer of ice cream, gelato, sorbet. • No permit issued for change in use; no capacity fees paid • Source Control took enforcement action against Caffe Classico for discharge violations and reached settlement agreements in 2010 and 2013. • The settlement agreement required Caffe Classico to go Zero Discharge. • Staff has been working to collect unpaid capacity fees since 2012. 1 1 How Capacity Fees Were Calculated for Caffe Classico • CCCSD has no standard user category or RUE factor for a business of this type. • A Special Study would typically be conducted based on flow and strength data. • Caffe Classico's flow and strength data showed wide variations and was deemed not useful for a Special Study calculation. Typical Capacity Fee Calculation 1000 square feet X Business Factor = RUEs RUEs X Capacity Fee = Capacity Charge Example: 12,946 square feet of Restaurant: 12.946X4.010=51.91 RUEs 51.91 RUEs X $6,005/RUE = $311,740 oil K How Down Payment for Capacity Use Agreement was Calculated Gravity: 1.166 RUE/1,000 SF x 12,946 SF 15.1 RUE x 5.797 $/RUE $87,506 Pumped: $15,468 CAPACITY FEE DOWN PAYMENT $102,974 How Capacity Fees Were Calculated for Caffe Classico • Caffe Classico considered "Permitted Industry" • A Capacity Use Agreement to spread the payment of capacity fees over 15 years. • Annual charge is based on water consumption and wastewater strength data. • Caffe Classico subsequently went Zero Discharge in February 2013. Annual billings were suspended. E Efforts to Collect Fees • Starting in 2012, staff has attempted to collect capacity fees. • Multiple letters, meetings, phone calls, etc. • Declared delinquent in May 2013. • Action suspended for two years by request of business owner and property owner while they carried out litigation. • Staff recommends placing amount on tax roll for collection. Current Status • Public Hearing on 8/6/15 • Place on 2015-16 tax roll (deadline is August 10) • File Certificate of Unpaid Charges to secure our charges until tax bills go out • Closed Session on 8/26/15 to consider additional action 5 Questions? .SCC ►� LAV OFFICE OF CRAIG S. NEVIN CRAIG S. NEVIN, EsQ. Email Ci\evinci.LawAevin.com November 17, 2015 ATTACHMENT 3 Via Email.- CENTRAL mail:CENTRAL CONTRA COSTA COUNTY SEWER DISTRICT M. MCGIL.L. — BOARD PRESIDENT BOARD MEMBERS: P. CAUSEY; T. PIL.ECKI; J. NEJEDLY; D. WILLIAMS CARE OF: KENTON L. ALM, DISTRICT COUNSEL DANEA GEMMELL, PLANNING AND DEVELOPMENT DIVISION MANAGER Via US Mail. CENTRAL CONTRA COSTA COUNTY SEWER DISTRICT ELAINE R. BOEHME, SECRETARY OF THE DISTRICT ROGER S. BAILEY, GENERAL MANAGER 50'19 IMHOFF PLACE MARTINEZ, CA 94553 Regarding: Caffe Classico and Thomas Heffernan 2500 Annalisa Drive, Concord, CA CCCSD Notice of Capacity Fees: December 26, 2012 CCCSD Tax Lien Imposed: September 1, 2015 NOTICE OF CLAIM District Secretary, General Manager Members of the Board care of District Counsel: After numerous discussions and meetings in anticipation of litigation, this letter is in part a notice of claim and intention to sue and in part a final pre -litigation effort to resolve this matter without the need for extended litigation. Caffe Classico and Mr. Heffernan dispute there is any amount owing to the District, and the most overwhelming reason is the statute of limitations. However, there are numerous other factors the District is urged to consider, some of which are also discussed below. First and foremost, the District knew of the existence of its claim for an increased Capacity fee as early as 2003 --when the original Industrial Users permit was filed. The 2003 permit application indicated that the operation was a manufacturer of gelato and sorbet, so the District was well aware of the change and the nature of the change in use in 2003. Based on California law, because employees of the District approached Caffe Classico operations in 2003 as an unpermitted user, their notice is imputed to the District and the statute of limitations cannot be triggered any later, and might be earlier, than that. ONE MARKET STREET —SPEAR TOWER, SUITE 3600 SANFRANCISCO, CALIFORNIA, 94105 TELEPHONE. 415-293-8465 November 17, 2015 Page 2 Even beyond what is likely an insurmountable statute of limitations issue, as seen in the attached schedule of facts and events we have prepared, there have been over 100 interactions between Caffe Classico and the District, during these past 9'/z years including: -Fourteen Annual permit applications for Industrial Users Permits submitted/approved; -Nine instances where the District placed other sewer charges on the tax roll; and, -Two negotiations and settlements of District code violations in 2009 and 2011 It cannot be disputed that there was never any request or mention for Capacity Fees from April 10, 2003 to December 26, 2012, a total of over 9 '/Y years, notwithstanding and despite all of these interactions. Of course, the amount at stake is the reason why there have been so many settlement related meetings. We have researched the issues and the authorities not only ourselves but also those given to us by District Counsel. It is our position that the statute of limitations is one obvious basis we will use to defeat the assessment, whether or not it must be paid first. The Board's decision to place a tax lien in September 2015 has likely caused an end to those discussions. Unless the District releases (perhaps without prejudice) the tax lien, that lien and the amount at stake guarantees that litigation will ensue --unless the dispute can be resolved. In that regard, and without each side having to spend tens of thousands of dollars in litigation, we would like to know on what basis and under what authority the District believes its claim would survive the Statute of Limitations defense. (This is not an administrative action or labor practices matter such as Cochella v. CalPers 35 Cal.4th 1072.) In that regard, please provide us with: 1) The code section(s) under which the District would base its claims, 2) The associated statute of limitations period for each code section(s), 3) And the date you contend the District discovered it had a claim under such code section(s). Our next point is possibly even more important, pragmatically. Even if the Board imagines the District somehow overcoming the statute of limitations problem it has, it can be demonstrated that the calculation of the Capacity Fee is incorrect. This can easily be shown as follows: CCCSD staff has made an offer of $102,974 for "settlement" of capacity fees for the property at 2500 Annalisa Drive in Concord. This figure is based on a calculation using the Capacity Use Change Program. Specifically, the December 26, 2012 letter to Mr. Heffernan as the property owner, preliminarily stated that based on an increase in the square footage of the building and a change in use, a capacity fee would need to be charged. The letter also stated that the original sewer permit that was issued in 1983 when the building was erected, indicated a 6,000 square foot building, "whereas the current square footage is 12,946." Clearly therefore, the calculations which derived the increased Capacity fee $102,974 was based on an assumption that the new square footage was 12,946. This is wrong: no one ever increased the square footage of the building as can be shown by the original stamped construction plans which we have. They show how the building was originally built in 1983 at that it is the same today. What Mr. Heffernan did do, was to remodel 1000 square feet within tl:e existing building to house his manufacturing room. Moreover, Caffe Classico Foods only occupies about 45% of the total building and has never at any time occupied the whole building. (The rest of the building has been leased to a telecommunications company.) Just as if a business opens up a 1000 square foot deli within the November 17, 2015 Page 3 1,400,000 square foot Sun Valley Shopping Center, CCCSD cannot ask that business to pay Capacity fees based on 1.4 million square feet, but only on the 1000. So clearly, even if the District could somehow overcome the likely fatal statute of limitations issue, it would be required to prorate the charge based on the 1000 square foot change --and simply could not attempt to extract the Capacity fee (and now tax lien) based on the 12,946 square feet that the fee is currently based on. This reveals that the District, at best --and if it hadn't failed to invoice the amount on time --would have collected $7,954 (1000/12,946 of $102,974). Even though it may not be evident, it should be mentioned now and prior to litigation that we believe that litigation would demonstrate that the District's actions have been colored by what can only be described at as a smear campaign against Mr. Heffernan, from the purchaser of his business, Mr. Gaube. That individual has had dozens of staff meetings and written many letters, directly to the Board, trying to portray a scene in which Mr. Heffernan over years purposely defrauded the District. In our deposition of Mr. Tim Potter, when he was referring to Mr. Gaube, he stated: "in my 20 plus years at the District, I've never seen someone try to get his own business shut down". Mr. Gaube had his own ulterior motive for making those unfounded assertions: an ill-fated suit against Mr. Heffernan. It would be unfortunate but likely that litigation would uncover that some Board members may have been influenced by Mr. Gaube's untrue and unfounded statements—or, may have unfounded animosities toward Mr. Heffernan. While Mr. Heffernan may have at one time been inexperienced as to the proper procedures with the CCCSD, there was no attempt to defraud the District --as Mr. Gaube had represented. Mr. Heffernan is an honorable man and has always intended to do the right thing—as proven by and through his numerous contacts with District Staff and District Counsel. Moreover, the Board should know that it was conclusively found in the suit against Mr. Gaube that the assertions against Mr. Heffernan and Caffe Classico were completely false; and, the sole purpose of these claims against Mr. Heffernan were an attempt to get the CCCSD to shut down Caffe Classico for Mr. Gaube's benefit in his (it has now be shown) frivolous case. Another factor that should be considered is the conduct after the District first indicated that a charge was "missed" by the District. That letter, dated December 26, 2012 to Mr. Heffernan as the property owner, described that based on an increase in the square footage of the building and a change in use, a capacity fee would need to be charged. Within only approximately 2 months of their receipt of the out-of-date demand for an increased Capacity fee, the business entered into a recycling program that uses its solid waste to make bio -fuels. Of course, if the District had timely invoiced for the Capacity fees, the business would have made the change to operate independent of the District much sooner. The annual fees paid, totaling $147,000, could have been saved by the business if the District had asked for the Capacity fee sooner. This could easily become the subject of a claim against the District, or at the very least considered in the Court, in deciding the case --if this matter must be litigated. In addition to the above—and perhaps because of it --we feel it is essential to remind the Board and Staff that this is a matter which from all reasonable perspectives had been resolved prior to the District placing the Capacity fee related tax lien: In September 2014, Ms. Danea Gemmell and Mr. Heffernan came to a resolution, and one that Staff agreed to recommend to the Board. Then, the Board not only refused to accept the Staff recommendation—the District then waited eight (8) months to inform Mr. Heffernan that the Board refuse to approve the Staff November 17, 2015 Page 4 recommended settlement. Thereafter, Mr. Heffernan has expended substantial time and attorneys' fees to try to reach a resolution—apparently to no avail. We believe that when you discuss the issues, the above, the attached and the applicable legal authorities in closed session with District Counsel, he will be honest and forthright, and will inform you that the statute of limitations is likely fatal to the District's levying an assessment in September 2015. Discussions related to the issue between Mr. Heffernan and staff point to other issues related to or caused by the (former) employee, Mr. Kinnon, and, that this was most likely the reason for the lapse on the part of the District. Nonetheless and no matter how one looks at the case, more than 9 '/2 years have passed since the District could and should have requested the fee. All of the delays would be clearly demonstrated and would show consistent delays, including the charging of the Capacity related fee itself. We believe that when you discuss the above and the attached with District Counsel you will hear that the impending litigation is one the District is far more likely to lose than to win. We urge the District to take a less emotional and more logical approach. Moreover, we believe District Counsel will also confirm that if and only if the District can somehow pass the statute of limitations issue, based on Caffe Classico moving to zero -discharge, and based on the small 1,000 square feet that, at best, should have been invoiced in 2003, there will be no net recovery to the District for Capacity Fees—and even if there is, it would amount to a great deal less than the cost spent in litigation. The costs of litigation over this issue will cumulatively far exceed the fee itself. As a result and based on the above, the legal authorities and the attached, we hope you agree that it would be prudent to settle this matter and not prudent to force litigation against the District. Please advise if you would agree to release the tax lien and continue to discuss a resolution informally. Otherwise, Mr. Heffernan will be forced to proceed with litigation against the District. While we are not available for your November 19th meeting, we would be willing to meet with you in open or (perhaps more suitably) in closed session either at or after the December 2"d Board meeting. Please confirm in writing, within seven (7) days of the date of this letter, what the Board's position is with respect to the above. Sincerely, LAW OFFICE OF CRAIG S. NEVIN 64L, Craig S. Nevin cc: Client ATTACHMENT 4 555 12th Street, Suite 1500 Kenton L. Alm Oakland, California 94607 Attorney at Law tel (510) 808-2000 Direct Dial: (510) 808-2081 fax (510) 444-1108 kalm@meyersnave.com www.meyersnave.com December 29, 2015 Via E-mail & U.S. Mail Craig S. Nevin, Esq. LAW OFFICES OF CRAIG S. NEVIN One Market Street Spear Tower, Suite 3600 San Francisco, CA 94105 Re: Caffe Classico Dear Mr. Nevin: I am writing in response to your November 17, 2015, correspondence and to provide certain documents to clarify the basis for the imposition of the $114,970.47 as a delinquent fee in August of 2015. The attached documents are being provided in advance of the January 7, 2016, hearing on your appeal of the staff's determination of the amount of the capacity fee and that it could be imposed through a tax lien in August of 2015. First, Central Contra Costa Sanitary District ("CCCSD" or "District") does not agree with your unsupported assertion that it is barred by an unspecified statute of limitations because its imposition of a tax lien for delinquent fees "is not an administrative action" subject to the holding in Coachella Valley Mosquito & Vector Control Dist. v. California Pub. Employment Relations Bd., (2005) 35 CalAth 1072. To the contrary, the District's pursuit of your client's delinquent capacity fee via imposition of a tax lien is a quintessential "administrative proceeding" which is not subject to "the statutes of limitations set forth in the Code of Civil Procedure, including the three-year period in section 338(a)." (Id. at 1088.) The California Supreme Court reiterated this long- standing legal principle in Coachella and cited City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29 in the string cite. (Id.) In Oakland v. PERS, the Third District examined the principle and explained: The trial court mentioned a couple of cases which reject application of the Code of Civil Procedure statutes of limitations in administrative proceedings. (Robert F. Kennedy Medical Center v. Department of Health Services (1998) 61 Cal.AppAth 1357, 1361-62, [recovery of overpayments made to a Medi -Cal provider by offsets Craig S. Nevin, Esq. LAW OFFICES OF CRAIG S. NEVIN December 29, 2015 Page 2 not controlled by civil statute of limitations]; Little Company of Mary Hospital v. Belshe (1997) 53 Cal.App.4th 325, 329, [`Statutes of limitations found in the Code of Civil Procedure ... do not apply to administrative actions'].) In an earlier case, Bernd v. Eu (1979) 100 Cal.App.3d 511, we concluded an administrative disciplinary proceeding was not subject to the Code of Civil Procedure statutes of limitation. We did not discuss these authorities in County of Mono. We do now. `An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.' (Code Civ. Proc., § 22.) `The word `action' as used in this Title [re: statutes of limitation] is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature.' (Id., § 363.) An administrative proceeding is neither a `civil action' (id., §§ 22, 312) nor a `special proceeding of a civil nature' (id., §§ 23, 363), `to the commencement of which the statute of limitations relates. Such provision ... relates only to actions or special proceedings in courts, and not hearings before boards. Respondent board is not a `court', even though it exercises a power judicial in its nature.' (Bold v. Board of Medical Examiners (1933) 133 Cal.App. 23, 25) Although the Bold case ... also involved disciplinary actions, we see no reason why an administrative proceeding which does not involve discipline is any more akin to a `civil action' or `special proceeding of a civil nature.' (See French v. Construction Laborers Pension Trust (1975) 44 Cal.App.3d 479, 485, 118 Cal.Rptr. 731 [the `right to rescind by notice without judicial proceedings is not barred by the statute of limitations. Statutes of limitation act as a bar to actions or proceedings in courts'].) Bernard Witkin's treatise states flatly: `The general and special statutes of limitation referring to actions and special proceedings are applicable only to judicial proceedings; they do not apply to administrative proceedings. (Id. at 47-48.) (Original emphasis.) Quite clearly then, the Board's imposition of a tax lien is an administrative proceeding not subject to the statutes of limitation set for the Code of Civil Procedure. You have presented no contrary authority or argument supporting your claim that the District's imposition of a tax lien is not "an administrative proceeding." Second, your letter questioned the calculation of the capacity fee. Your letter seems to imply that the calculation is incorrect because the building has not been enlarged from 6,000 square feet to 12,000 square feet since the original connection fee was paid in 1983. Again to the contrary, the District has always recognized that the total area of the building is approximately 12,000 square feet. The initial capacity fee paid in 1983, when the building. was constructed, was based on 3,000 square feet of office and 3,000 square feet of electrical manufacturing. At that time, District Code specified that capacity fees were charged based on the number of proposed plumbing fixtures, according to the tenant improvement plans Craig S. Nevin, Esq. LAW OFFICES OF CRAIG S. NEVIN December 29, 2015 Page 3 submitted. (See Attachment A, Ordinance No. 130; Amended Section 11-306 of the District Code.) Also at that time, the District's procedure was that unimproved portions of buildings were not charged capacity fees until the time tenant improvement plans were submitted. Therefore, no capacity fees were ever paid for the remaining "unimproved" 6,000 square feet of space which was improved sometime after 1983, and those fees are due to the District. The One Hundred Two Thousand Nine Hundred Seventy-four Dollar ($102,974.00) capacity fee was based on the Capacity Use Charge Program calculation for an initial down payment as detailed in the District's July 19, 2013, letter. (See Attachments B-E, letters of December 26, 2012, March 14, 2013, May 3, 2013, July 19, 2013.) This fee is the minimum amount that would be charged for the improvements in the building and the change of use to food manufacturing and, as the District has pointed out in several letters and meetings, the full capacity fee for the building could be as high as Eight Hundred Thousand Dollars ($800,000.00). The remodeled "1000 square feet within the existing building to house ... manufacturing room" noted in your letter is within the total unimproved space that has not paid capacity fees and is included in the calculation. Third, pursuant to your request, I am providing you with the following information: 1) The code section(s) under which the District seeks to recover the delinquent fees from your client. District Code states that payment of fees be provided upon "the time of the District's discovery of the added burden." (CCCSD Code § 6.12.030.D.) The District must give written notice of the fees due and they are deemed delinquent 45 days after giving notice. (Id.) The District provided notice that the fees were due on December 26, 2012. (Attachment B.) After the District provided notice and met with the property owner to discuss the outstanding capacity fees, it issued a demand of payment in the amount of One Hundred Two Thousand Nine Hundred Seventy-four Dollars ($102,974.00) on March 14, 2013. (Attachment C.) Gov't Code section 66013 does not require payment to be demanded any particular time and CCCSD Code section 6.12.030.D allows the District to demand payment at the time of discovery, but does not limit it as to when a demand must be made. Health & Safety Code section 6520.10 allows a sanitary district to recover "any delinquent and unpaid charges for sewer and other services, or either, requested in writing by the owner of the property that remain delinquent and unpaid for a period of 60 days or more on July 1" by "add[ing] to and becom[ing] a part of the annual taxes next levied upon the property for which the sewer service was provided and upon the property subject to the charges for any other district services and shall constitute a lien on that property as of the same time and in the same manner as does the tax lien securing the annual taxes." The property owner did not remit the payment demanded in the March 14, 2013, letter and the payment was deemed delinquent on April 30, 2013. Following the provisions in the Health & Safety Code, the Craig S. Nevin, Esq. LAW OFFICES OF CRAIG S. NEVIN December 29, 2015 Page 4 District notified the property owner of its intent to place the delinquency on the property tax bill in letters dated May 3, 2013, and May 9, 2014. (Attachments D and F.) 2) The associated statute of limitations period for each code section(s). See the discussion above. 3) The date the District discovered it had a claim under such code section(s). See the discussion above. Additionally, as already communicated to you orally, the Board has scheduled an open session hearing on January 7, 2016, at 2:00 p.m. to consider your client's objection to the fee calculation and its imposition of the tax lien as a delinquent fee in August 2015. It will review your November 17, 2015, correspondence and any further written submissions your client wishes to provide preceding the Board meeting. If the Board is presented with additional written materials at the meeting, depending on its nature, it may continue the matter in order to properly consider it. The Board will also allow an oral presentation by you or your client of a reasonable length. Very truly yours, Kenton L. Alm District Counsel Attachments: Attachment A, Ordinance No. 130; Amended Section 11-306 of the District Code Attachment B, letter dated December 26, 2012 Attachment C, letter dated March 14, 2013 Attachment D, letter dated May 3, 2013 Attachment E, letter dated July 19, 2013 Attachment F, letter dated May 9, 2014 2568347.2 Attachment A to Alm letter dated 12/29/2015 ORDINANCE 130 AN ORDINANCE TO REVISE DISTRACT CODE SECTIONS 2-103, 3-104, 3-20 , 4-103,;9-301, 10-101, 10-103, 10-1 7, 11-30, 11-306, CHAPTER 11 - RTICLE 8 AND 14-203 The Board of Directors of the CENTRAL CONTRA COSTA SANITARY DISTRICT does ordain as follows: Sections 2-103, 3-104, 3-205, 4-103, 9- O1, 10-101, 10-103, 10-107, 11-302, 11-306, Chapter 11 - ArticlO 8 and 1 -203 of the Code of the Central Contra Costa Sanitary District are horeby amended, inserted or deleted to read as follows: "Sec. 2-103. Compensation of Board Members. Each Board Member shall receive compensption in an amount not to exceed Fifty Dollars ($50.00) per day forach day's attendance at meetings of the Board or for each day's service renjered as 4 director by request of the Board, not exceeding a total of four days in any calendar month together with any expenses incident thereto. NOTE: Section 6489, Health anj Safety Code, limits the total compensation a Board Member may rece.ve for a0y one calendar month. At the date of adoption of this Code tho amount is $200.00." "Sec. 3-104. Right to enter on priv4te property and to terminate service: Notice and hearing. Each designated District employee shall carry official evidence establishing his position, and upon exhibiting it, may enter upon private property for the purpose of inspection and maintenance of sanitary and waste disposal facilities. The District may terminate service to property in which a violation of any rule or regulation is found to exist. Prior to termination of servicq, however, the District Board shall notify, in writing, the owner and tenant, if any, of such property that service is intended to be so terminated and conduct a hearing thereon as herein provided. Such notice shall be mailed to the caner at the address shown on the records of the assessor of the County or as'known to the clerk, and a copy shall be delivered to the tenant or posted conspicuously on the property. This notice shall state the date of proposed teemination'of service and the reasons therefore and the date the District Board shall hold a hearing upon such intended termi- nation. Such hearing shall not be held less than 10 days subsequent to the giving of notice as herein required:" Attachment A to Alm letter dated 12/29/2015 "Sec. 3-205. General Manager -Chief n ineer Vay employ assistants. Upon approval of the Board of Pirectors, the General Manager -Chief Engineer may appoint assistants. E4ch appointment shall be made in accordance with the employment procedures specified in flections 3-101, 3-102, 3-103 and Chapter 4 of this Code." "Sec. 4-103. Conflict of duties of 'm loyees. An officer or employee of the istrict shall not engage in any activity which is inconsistent, incompatible or in conflict with his duties as an officer or employee of the District;" "Sec. 9-301. Uniform rebate fees. A. The Board finds that the cost of installation of main sewers is generally determined by the density;of land Use and conditions of terrain and that the fixing of rebate fees pon the iasis of the density of land use and said conditions of terrain s generally the most equitable method of charging for a direct connection to a rebote sewer. Therefore, density of use together with conditions of #errain hve been made the basis for fixing the class of rebate fees set forth in,the following Subsection B. Within each class the Board has est4blished ranges of rebate fees. The actual range of rebate fee that applies to any given rebate installation is determined by the District takin into consideration the actual cost of construction, the cost of comparabio work in the area, and the number of potential connections. However, th Board recognizes that these conditions are not the only basis for determin;ng rebate fees in every case, and, therefore, recognizes and authorizes exceptions to be made by the General Manager -Chief Engineer as follows: The General Manager -Chief EngiFieer may opply a class of rebate fees other than that dictated by densitylof use and conditions of terrain where a different application is justifie� in the opinion of the General Manager - Chief Engineer by the total cost oflsewer installation or the class of rebate fees charged in adjacent sew4r areas. B. The uniform rebate fees are: classified and established as follows: (1) Class I - High densit� residential or commercial: (a) $682.50, (b) $1,050.00-$1,470.00 per Unit of use including $80.00 for District administration. (2) Class II - Medium density residential or commercial: (a) $1,050.00, (b) $1,470.00, $1,785.00 per Unit of use including $80.00 for District administration. (3) Class III - Low density residential or commercial; level terrain: (a) $1,470.00, b 1,785.00, (c)l $2,100.00 per unit of use including $80.00 for District administration.' (4)- Class IV - Low density, residential or commercial; rolling terrain: (a) $1,785.0077FT2,100.00, (c)' $3,150.00 per unit of use including $80.00 for District administration." (5) Class V - Low densityjresidential or commercial; steeper terrain: (a) $2,100.00—$3,150.00, (c)I $4,200.90 per unit of use including $80.00 for District administration. (6) Class VI - Multi familly residential or any commercial property where there is no uniformity in lan4 use devglopment, or industrial use: $15.75 per front foot including $1.$5 per front foot for District administration, or $0.105 per square foot of served' property including $0.01 per square foot for District administration as determin d by the'General Manager -Chief Engineer. C. The uniform rebate fees fi ed in Subsection B. of this Section apply to every rebate line whether existi g or installed at some future date. However, the amount of recovery which an installer is;entitled to on or before July 6, 1967, shall not be adversely affected by this Ordinance." 2 "Sec. 10-101. Permit required. A person engaging in any of tho followigg activities shall obtain a permit from the District: (1) construction or repair ofa trunk, main, or side sewer; (2) connection to a trunk, main or side sewer; (3) excavation within the paved surface of a public right of way for the purpose of workin on a sewer; (4) engaging in the business cf cleaning septic tanks; (5) disposing waste from a septic tank into the District system; (6) discharging contents of a swimminglpool into a sewer, subject to the provisions of Section 8-308; (7) industrial wastewater discharge to the District system. Cross-reference: See Section 11-101 for permit fee, and Section 11-102 for fee for disposing of septic tanl waste into the District system. See Section 8-404 for industrial wastewalter discharge permits." "Sec. 10-103. Permit form and agreement. The General Manager -Chief Engineer may prescribe the form of permit application and require informationin addition to that required by Section 10-102 and Section 8-404. the signature of the applicant on the permit application is an agreement to corOply with the rules and regulations of the District." "Sec. 10-107. Effective period of pe rmit. A permit is effective for a period of 6months from the date it is issued, unless stated otherwise on the permi;t." I "Sec. 11-302. Fixture charge established. A person desiring to connect tc either a public sewer in the District or a sewer flowing into a public se er in the District shall pay a fixture charge to the District. The fixtur charge is in addition to all other fees and charges." Cross-reference: See Sec. 11-4,01 which provides for the termination of elective fixture charges." "Sec. 11-306. Rate schedule for residential uses, general commercial and miscellaneous uses and multi -storied buildings. The fixture charge for any use is the minimum charge set forth in the following schedule or the amount reached by multiplying the charge for each fixture listed in Sec. 11-303 by the fixture multiple set forth below, which- ever is the greater. Where the fixture multiple is designated a "special study", the extent of use and its effect on the District system is not readily ascertainable and the District shall conduct a study to determine the fixture multiple. 3 The minimum total fixture charges and fixture multiples are as follows: Type of Use Residential Living units per gross acre 0-5 6-10 11-20 21-30 31-50 over 51 Minimum Charge Per Unit Fixture Multiple $375.00 1.0 337.50 1.2 300.00 1.5 262.50 1.8 225.00 2.0 use multistoried building fixture multiples Multi -storied buildings (over two ( ) stortet) The fixture charge shall be at,the rateof $40.00 per fixture unit equivalent and shall be based on th4 fixture',unit equivalents set forth in Chapter 4 of the Uniform Plumbing Code published by the International Association of Plumbing and Mechanidal Officials, 1976 Edition, as partially listed and modified* below: Kind of Fixture Bath Tub Floor Drain Laundry Outlet Shower, Single Stall Sinks and/or Dishwasher (residential) 'Garbage Disposal (residential) Wash Basin (lavatory) single Water Closet (toilet) tank type *Mobile Home Park Trap (use fixtures) `For fixtures not listed above or in!Chapter 4 of the the water supply pipe size, as listod below, or two for each gallon per minute of flow discharged shall Minimum Trap Size Units 1-1/2 inch 2 2 inch 2 1-1/2 inch 2 2 inch 2 1-1/2 inch 2 1-1/2 inch 2 1-1/4 inch 1 3 inch 4 4 inch min. 9 Uniform Plumbing Code fixture unit equivalents be used. Pi a Size 3 inch 1/2 inch 3/4 inch 1 inch Minimum Charge Type of Use 'Per Unit General Commercial and Miscellaneous Auditorium, bank, bakery, barber Or beauty shop, church, cleaning plant: delicatessen, department store, dru store, dog kennel, fire house, groc ry hall, meat market, medical or offic building $375.00 4 Units 2 4 6 10 Fixture Multiple 3.0 Types of uses not listed hereon ; $375 3.0 Cocktail lounge, bar, club, gas station, garage, restaurant, fountain, driveiin, funeral parlor 750 5.0 Convalescent hospital, rest home,!hospital 150 per bed Creamery, food processor 750 special study Factory, industry 375 special study Multi -use building, each use 375 by use School 165 per classroom" CHAPTER 11. "ARTICLE 8. USE OF TAX ROLL FOR CO(LECTION." Revised title only. i "Sec. 14-203. Conflict of duties ofiemployeeR. Delete this section in its entirety. I has been amended and inserted as new Sec. 4-103." This Ordinance shall be a general regulation of the District and shall be published once in a newspaper ofAeneral 'circulation published and circulated in Central Contra Costa Sanitary District, and shall be effective upon expiration of the week of publication. PASSED AND ADOPTED by the Board of Directors of the Central Contra Costa Sanitary District on the 4th day of!May, 1978, by the following vote: AYES: Members: Campbell, Bpneysteelie, Rustigian, Carlson and Allan NOES: Members: None ABSENT: Members: None zz� President of the District Board of the 'Central Contra Costa Sanitary District of Contra Costa County, State of California COUNTERSIGNED: r Secre ry of the Dis rict Board of:the Central Contra Costa Sanitary District of Contra Costa County, State of California 5 Attachment B to Alm letter dated 12/29/2015 Central Contra Costa Sdnitat y District PHONE: (915) 228-9500 FAX: (925) 118-4624 we'w.certtralsan. nce December 26, 2012 ANN E. NArilil:'r.L General Manager KriN"r'ON L. ALAI Mr. Thomas Hefernan `°""`et 510)8oxZi Caffe Classico December 26, 2012 Page 2 of 3 Section 6.12.030 D of the District code states "payment of capacity fees shall be due and made prior to the imposition of any added burden." Under District Code, Caffe Classico is classified as a Permitted Industry and the capacity fees would be calculated under a special study as described in Section 6.12.050 F. Under a special study, the District would typically use wastewater flow and strength data from either comparable businesses or from the business under analysis. Water consumption and wastewater strength data for this parcel dating back to 2005 were reviewed but the values for both flow and strength have varied widely making it difficult to calculate an appropriate capacity fee. Preliminary calculations based on historic data place the total burden for this parcel between 30 and 53 residential unit equivalents (RUEs). The corresponding capacity fee, including a credit for the RUEs of capacity paid for in 1983, would be between $203,510 and $327,740 using the historic flow and strength data. A summary of these estimates is shown in the table below: Year Water Consumption (HCF) BOD (m /I TSS (mg/1) Total Gravity RUEs Net Capacity Fee Estimate 2005 1,412 2006 473 2007 1,455 690 1,140 30.9 $203,510 2008 825 3,940 738 34.1 211,300 2009 1,177 4,267 924 53.2 327,740 2010 690 5,100 735 34.2 209,910 2011 471 10,778 2,776 51.1 304,060 Installation of the pretreatment system referenced in our December 11, 2012 letter should result in reductions of Biochemical Oxygen Demand (BOD) and Total Suspended Solids (TSS). These reductions could have a pronounced affect on the capacity fee calculation and could result in a significantly lower fee. Any such adjustments to the fee would require regular and verifiable monitoring of wastewater flow and strength as part of a special study. The purpose of the capacity fee is to equalize the investment in District assets among current and new users, thus ensuring that all users pay their fair share of capital costs for facilities' capacity and services. Section 6.12.030 E of the CCCSD Code reads: The person(s) jointly and severally responsible for the payment of capacity fees, including such fees as may arise out of an added burden due to change of use, are: (1) the parcel owner at the time the added burden occurs, (2) the tenant or business owner (user) in the case of a nonresidential use, (3) the wastewater utility service permit applicant, and (4) the parcel owner at the time the District discovers an unpaid or delinquent capacity fee, if those persons are not one and the same person or entity. ... It is the intent of this chapter that the parcel owner at the time the added burden occurs should be ultimately liable as between the persons jointly responsible for payment of the WENVRSRV\Special Studies & Capacity Fee Review\Capacity Fee Review\Calle Classico\Calle Classico Connection Fee letter 2012-12-26 (Hefernan) Final.doc Caffe Classico December 26, 2012 Page 3 of 3 fee as set forth in this chapter, absent the existence of legally effective contractual provisions between the responsible parties to the contrary. This notice of outstanding capacity fees due to the District is being sent jointly as Mr. Hefernan appears to be both the current owner and the owner at the time at which some, or all, of the additional burden was added and Mr. Leser is the current tenant and business owner. We believe, based on our understanding of the capacity fees paid to date and the changes in property use, that additional capacity fees are owed whether the property continues to be used for food manufacturing or if the property is used for some other business activity. The District offers a Capacity Use Charge Program as one of several options to allow certain businesses with high capacity fees to pay those fees over time. Please contact Thomas Brightbill, Senior Engineer, at (925) 229-7338 or tbrightbill@centralsan.org, within 30 days from the date of this letter to discus a mutually agreeable solution for calculating and paying the additional capacity fees for this parcel. Sincerely, i Danea Gemmell Environmental Services Division Manager DSG:TB:sdh Letter sent to: Mr. Larry Leser, CEO, Caffe Classico Foods cc: Kent Alm Ann Farrell Tim Potter N:\ENVRSRV\Special Studies & Capacity Fee Review\Capacity Fee Review\Gaffe Classico\Calle Classico Connection Fee Letter 2012-12-26 (Hefernan) Final.doc March 14, 2013 Mr. Tom Heffernan 60 Terra Teresa Lafayette, CA 94549 Dear Mr. Heffernan: Attachment C to Alm letter dated 12/29/2015 Central Contra Costa Sanitary District PHONE. (915)128-9500 FAX (915) 128-4624 www.centralsan.org CURTISW SWANSON Pmvulonal Gemml Manager KENTON L ALM Coo rlfor the District (310) 808-2000 ELAINE R. BOEHME Secretary of the Duirict CENTRAL CONTRA COSTA SANITARY DISTRICT CONNECTION FEES — NOTICE OF FEES DUE FOR 2500 ANNALISA DRIVE, CONCORD; APN 159-362-001 On December 26, 2012, Central Contra Costa Sanitary District (CCCSD) notified you that additional capacity fees were owed for the property that you own at 2500 Annalisa Drive in Concord. On February 1, 2013, we met with you to review the history of fee payments and operations for the parcel. At that meeting, we outlined several options for capacity fees and payment. We also discussed how the operations of Caffe Classico and the possibility of Caffe Classico adopting a "zero discharge" method of operation would affect the capacity fees owed. Caffe Classico has met the February 28, 2013 deadline for achieving zero discharge and no longer discharges waste from their manufacturing operations to the CCCSD sewer. Based on this development, the most logical option for capacity fees for this parcel would appear to be payment of the $102,974 fee we discussed. Accordingly, we request payment of this fee by April 30, 2013. If we do not receive payment by April 30 or alternate arrangements are not made for payment, the capacity fee will be declared delinquent and additional charges will be assessed. If you have any questions, please feel to contact us. Sincerely, gOW40— Danea Gemmell Environmental Services Division Manager DG:TB:sdh Attachment C to Alm letter dated 12/29/2015 ®RK,c�!"Pe Attachment D to Alm letter dated 12/29/2015 Central Contra Costa Sanitaty District Protecting public health and the envirol7rnent 5019 Imhoff Place, Mai t+nez, CA 94553-4392 May 3, 2013 Tom Heffernan Anmani Investments LLC 60 Terra Teresa Lafayette, CA 94549 Dear Mr. Heffernan: (COPY FAX: (925) 228-4624 CURTIS N. SWANSON Provisional General Manager KENTONL. ALM Counsel for the District (510) 808-1000 ELAINE' R. BOENME Secretary of rhe Dtsirict CENTRAL CONTRA COSTA SANITARY DISTRICT CONNECTION FEES 2500 ANNA LISA DRIVE, CONCORD; APN 159-362-001 (LOCATION OF CAFFE CLASSICO) Central Contra Costa Sanitary District (CCCSD) records indicate that sanitary sewer capacity fees remain unpaid for the property referenced above. You were notified that capacity fees were owed on December 26, 2012, as well as in our meeting on February 1, 2013, and in our letter dated March 14, 2013. The unpaid amount became delinquent on April 30, 2013. CCCSD Code Section 1.08.080 states that a delinquent charge can be assessed on unpaid amounts, and Code Section 6.24.150 states that the District may elect to use the tax roll for the collection of fees and delinquent charges. Enclosed is a copy of the CCCSD invoice in the amount of $114,970.47 for the outstanding sanitary sewer capacity fees, delinquent charge and penalty. Payment shall be made to CCCSD no later than 30 days from the date of this letter or additional penalties will be assessed and a public hearing regarding this matter will be scheduled. After the public hearing, the CCCSD Board of Directors will consider placing the unpaid charges on the Contra Costa County property tax roll for collection. You will be notified of the public hearing. If you have any questions, please feel free to contact Senior Engineer Thomas Brightbill at (925) 229-7338. Sincerely, 1/ Danea Gemmell Environmental Services Division Manager enc.: Invoice CCCSD Code Sections Attachment D to Alm letter dated 12/29/2015 \\DistGroups\Groups$\ENVRSEC\Admin\Gemmell\Letters\2013\Letter No 2 - 2500 Annalisa Drive Concord (Calle Calssico) 5-3-13.doo Recyded Paper Central Contra Costa Customer Anmani Investments LLC, Attn: 60 Terra Teresa Lafayette, CA 94549 Mr. Tom Heffernan Invoice Date 5/3/201 Capacity fees for 2500 Anna Lisa Drive, Concord CCCSD Acct. # Description Charge TOTAL Capacity fees and pumped zone fees: $102,974.00 $102,974.00 Delinquent charge (10% of unpaid amount): $10,297.40 Subtotal: $113,271.40 Penalty (1.5% per month from 4/30/13 to 5/30/13): $1,699.07 (Penalty will be waived 'rf $113,271.40 is received by May 30, 2013) For. Capacity fees and pumped zone fees owed for ice cream manufacturing operation LI at 2500 Anna Lisa Drive, Concord, per settlement agreement reached on February 1, 2013. APN 159-362-001 Job 3280 TOTAL DUE $114,970.47 Payment Details Payment shall be made no later than May 30, 2013. PLEASE REMIT TO: CENTRAL CONTRA COSTA SANITARY DISTRICT ATTN: Earlene Millier 5019 Imhoff Place Martinez, CA 94553 (925)229-7359 Please return copy of invoice with remittance. e ' Attachment E to Alm letter dated 12/29/201.5 Central Contra Costa Sanitaty District July 19, 2013 Mr. Tom Heffernan 60 Terra Teresa Lafayette, CA 94549 Dear Mr. Heffernan: Offer to Compromise California Evidence Code Section 1152 PHONE: (925) 228-9500 FAX: (925) 228-4624 www.centralsan.org CURT/S W SWANSON Provisional General Manager KF.N70N L. ALM Counsel far the District (510) 808-7000 ELAINE R. BOEHME Secretary of the DI strict CENTRAL CONTRA COSTA SANITARY DISTRICT CAPACITY FEES FOR 2500 ANNALISA DRIVE, CONCORD; APN 159-362-001 This letter is in response to your recent request for clarification of capacity fees for your property at 2500 Annalisa Drive in Concord. Section 6.12.010 B of the Central Contra Costa Sanitary District (CCCSD) Code states: The purpose of the capacity fee program is to provide for each new user, by payment of a capacity fee at the time of initial connection of a building or facility on their property to the District's sewer system or, subsequently, when creating an added burden, to equalize their investment with the investment of other existing users in the value of all District assets. The charging of capacity fees is common in most utilities, including sewer utilities such as CCCSD. The equity buy -in approach in a common methodology for calculating those fees and is listed in Financing and Charges for Wastewater Systems by the Water Environment Foundation (WEF). Our file indicates that an initial permit for a sanitary sewer connection was issued on August 3, 1983 for the property at 2500 Annalisa Drive in Concord. At that time, capacity fees were calculated based on the number of plumbing fixtures in the building. The permit application shows that fees of $3,248.27 were charged and a notation on the permit indicates "6000 square feet. 3000 Office, 3000 Manufacturing." The type of business was listed as "Electrical Contr." and the business name was listed as "Aspen Constr. Co." Subsequent notes in the file indicate that in June 2003, CCCSD Source Control inspectors inspected the property and noted that the property was being used to manufacture "ice cream". Caffe Classico's annual Sewer Service Charge has been calculated based on the quantity of wastewater discharged as well at the strength of the wastewater as measured by Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS). In September 2011, CCCSD learned that BOD and TSS sampling had been performed in a manner that resulted in lower \\DistGroups\Groups$\ENVRSEC\Admin\Brightbill\2013\Letters\Caffe Classico Connection Fee Letter 7-19-13 doc \ Attachment E to Alm letter dated 12/29/2015 F Mr. Tom Heffernan Page 2 July 19, 2013 values for those parameters and thus understated the strength of the wastewater being discharged. We believe that this constitutes the discovery of an added burden on our system. Section 6.12.030 D1 states: If an added burden occurs without the payment of capacity fees, payment shall be due at the time of the District's discovery of the added burden. Section 6.12.03-0 A1c defines "added burden" as including the following: An existing connection from a parcel where capacity fees were never paid or where inaccurate information was given which resulted in a lesser fee having been paid than would have been required with a correct calculation of the fee. Current CCCSD District Code and ordinances require that capacity fees for non-residential property be calculated based on the quantity and strength of the wastewater being discharged. On December 26, 2012, CCCSD notified you that additional capacity fees were owed for the property and on February 1, 2013, we met to discuss capacity fees for the property and how various operating scenarios would affect the fees. At the meeting, we reviewed what the capacity fee would be using the wastewater strength values obtained after September 2011, what the capacity fee would be using the inaccurate wastewater strength values provided prior to September 2011, and how the difference between those two figures represents the added burden discovered in September 2011. This calculation is shown below: Total capacity fee based on post 9/2011 wastewater strength data' $866,264 Capacity fee based on inaccurate pre -9/2011 strength data2 - 300,033 Capacity fee based on net increase in burden revealed through discovery of inaccurate strength data in 2011 $566,231 We discussed how the property would be eligible to participate in CCCSD's Capacity Use Charge program which is described in Section 6.12.050 H of the CCCSD District Code. Under this program, an initial down payment of $102,9743 would be due with the balance paid off over 15 years. We also discussed that any payments made under this program would result in a corresponding sewer capacity entitlement to the property. In February 2013, Caffe Classico adopted a "zero discharge" method of operation and stopped discharging wastewater from the manufacturing process to CCCSD sewers. In recognition of ' Section 6.12.050 of CCCSD District Code — Non-residential Capacity Fees specifies the calculation based on flow rate and strength — Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS). Using water consumption data of 929 HCF per year, BOD of 12,047 mg/1 and TSS of 7,962 (all values from billing data), the resulting Capacity Fee would be $866,264. 2 Using water consumption data of 929 HCF per year, BOD of 4,955 mg/1 and TSS of 1,263 (all values from billing data), the resulting Capacity Fee would be $300,033. 3 Based on an assumed building area of 12,000 square feet. This figure may be adjusted if the actual building square footage is different. \\DistGroups\Groups$\ENVRSECWdmin\Brightbill\2013\Letters\Calle Classico Connection Fee Letter 7-19-13.doc Mr. Tom Heffernan Page 3 July 19, 2013 the change to zero discharge and as discussed at our February 1, 2013 meeting, we notified you in writing on March 14, 2013 that a capacity fee of $102,974 was due under the Capacity Use Charge program. No additional annual Capacity Use Charge payments would be due as long as Caffe Classico continues to follow zero discharge of manufacturing wastewater to CCCSD sewers. Failure to pay the $102,974 fee would mean that the property enjoyed the benefit of a substantial increase in the use of CCCSD's capacity for at least 10 years with no compensation to the District. Please feel free to contact me with any further questions or comments Sincerely, r Thomas Brightbill, PE Senior Engineer TB:sdh cc: Kent Alm, District Counsel \\DistGroups\Groups$\ENVRSECWdmin\Brightbill\2013\Letters\Caffe Classico Connection Fee Letter 7 19-13.doc Attachment F to Alm letter dated 12/29/20 Central Contra Costa Sanitary D Offer to Compromise California Evidence Code Section 1152 May 9, 2014 Mr. Tom Heffernan 60 Terra Teresa Lafayette, CA 94549 Dear Mr. Heffernan: PHONE: (925) 228-9500 FAX: (925) 372-7892 www.centralsan.org ROGER S. BAILEY General Manager KENTON L. ALM Counsel far the District (510) 808-2000 ELAINE R. BOEHME Secretary of the District CENTRAL CONTRA COSTA SANITARY DISTRICT CONNECTION FEES FOR 2500 ANNALISA DRIVE, CONCORD; APN 159-362-001 Central Contra Costa Sanitary District (District) received your letter dated March 31, 2014. While the District is anxious to get the issue of capacity fee payment resolved and would consider a compromise to close the matter, we cannot accept your offer. Our discussions related to the payment of capacity fees have been delayed several times, at your request, to accommodate your legal proceedings and arbitration related to Caffe Classico. At our last meeting, you indicated that the arbitration had been resolved and that you would provide us with a copy of the final arbitration decision. We still have not received that document. Your March 31 letter reiterates several points brought up during our meetings. Our position remains unchanged — specifically, that the parcel you own and the business you started paid capacity fees only for office use, failed to get permits from both the District and Contra Costa County in a timely manner for a change of use to an ice cream manufacturing, and discharged high-strength waste for a number of years to the public sewer system without compensating the District for the capacity used by that waste. Our suggestion at this point is to schedule a meeting with you, your legal counsel, and District Counsel in order to review the legal and engineering issues and attempt to reach a reasonable compromise. If a settlement on the capacity fee issue cannot be reached by July 1, 2014, then the District intends to declare the capacity charge of $102,974, requested in our March 14, 2013 letter, as delinquent and proceed with the remedies under the California Health and Safety Code to place those charges on the property tax bill for the subject parcel. If you have any questions, please feel free to contact us. Sincerely, 0" Danea Gemmell Environmental Services Division Manager N:\ENVRSEC\Ndmin\Gemmell\Letters\2014\Caffe Classico Connection Fee Letter 5-9-14 doc (D RKydea Pape Attachment F to Alm letter dated 12/29/2015 :]Timeline of Events and Significant Communications I ATTACHMENT 5 2500 Annalisa Drive (APN 159-362-001) Caffe Classico January 7, 2016 August 3, 1983 Capacity fees paid for new 12,000 square foot (SF) building. Fee calculated based on number of plumbing fixtures, as prescribed by District Code at that time. Notation on the permit indicates the use was 3,000 SF office and 3,000 SF of electrical manufacturing. 2000 Property is purchased by Mr. Heffernan and his business, Caffe Classico, moves in. No building permit obtained from Contra Costa County for tenant improvements so plans not routed to the District for review. June 19, 2003 Source Control inspects Caffe Classico, issues warning notice. June 19, 2003 to Source Control inspects or takes other action 34 times; November 22, 2011 multiple warning notices and notices of violation are issued. March 13, 2006 Caffe Classico grease interceptor plans are reviewed and approved. Facility type is noted as "ice cream manufacturing" on grease removal form. 2007 Mr. Heffernan sells Caffe Classico to an investment group, maintains ownership of the parcel. September 2011 CCCSD determines that an added burden has occurred without payment of capacity fees because waste strength has been understated, building was expanded without plan review by the District, and permits were not sought or issued. December 26, 2012 Letter to property owner advising that additional capacity fees were owed based on "scope of operations [having] expanded well beyond the activities upon which the calculations for the initial sewer capacity fee were based." February 1, 2013 Meeting with property owner to review the basis for and calculation of additional capacity fees. Property owner advised that going to "zero process discharge" would not eliminate the obligation to pay Capacity Fees. February 7, 2013 Update to Board of Directors on Environmental Compliance actions and Capacity Fee. February 28, 2013 Deadline for Caffe Classico to meet "zero process discharge" which was met. March 14, 2013 Letter acknowledging zero process discharge and requesting payment of $102,974 in Capacity Fees based on the down payment amount under the District's Capacity Use Charge Program. Timeline of Events and Significant Communications 2500 Annalisa Drive (APN 159-362-001) Caffe Classico January 7, 2016 May 3, 2013 Letter advising property owner that unpaid Capacity Fees "became delinquent on April 30, 2013." July 19, 2013 Letter explaining basis for Capacity Fee and showing calculation for down payment based on the District's Capacity Use Charge Program. October 24, 2013 Meeting with property owner and District Staff to review Capacity Fee issues. March 31, 2014 Letter from property owner raises various issues associated with timing and the validity of wastewater strength data. May 9, 2014 Letter to property owner • rejects an settlement offer ($10,000) • states that District would be "consider a compromise to close the matter" • states that if settlement cannot be reached by July 1, 2014, District intends to place Capacity Fee charges on property tax bill September 9, 2014 Meeting with property owner, District Staff, and respective counsel. September 26, 2014 E-mail from property owner offering $20,000 for settlement of Capacity Fees owed. October 2, 2014 Offer from property owner presented to Board of Directors in closed session. Offer rejected. July 27, 2015 Finance Committee reviews position paper to set public hearing to place Capacity Fee charges on property tax bill. July 29, 2015 Notice of Public Hearing mailed to property owner and property owner's attorney as well as being posted and published as required. August 6, 2015 Public hearing. Board of Directors approves places delinquent Capacity Fee charges on property tax bill. August 27, 2015 E-mail to property owner confirming basis of Capacity Use Charge Program down payment is square footage not strength data and that building square footage of 12,946 SF from County Assessor's records was used for calculations. November 17, 2015 Property owner's attorney submits Notice of Claim to District Counsel. 2