Fresno County Regional Transportation Mitigation Fee Agency AGENDA

Fresno County Regional Transportation Mitigation Fee Agency AGENDA Date: Thursday, September 24, 2015 Time: 5:30 PM Place: COG Sequoia Conference Room 2035 Tulare St., Suite 201, Fresno, CA FOLLOWING THE FRESNO COG POLICY BOARD MEETING ALL POLICY BOARD MEMBERS Americans with Disabilities Act (ADA) Accommodations The Fresno COG offices and restrooms are ADA accessible. Representatives or individuals with disabilities should contact Fresno COG at (559) 233 4148, at least 3 days in advance, to request auxiliary aids and/or translation services necessary to participate in the public meeting / public hearing. If Fresno COG is unable to accommodate an auxiliary aid or translation request for a public hearing, after receiving proper notice, the hearing will be continued on a specified date when accommodations are available. I. Minutes of June 25, 2015 [APPROVE] II. Regional Transportation Mitigation Fee Agency Procedures for Resolving Appeals of the Regional Transportation Mitigation Fee Where the Board is Deadlocked [Beshears] [ADOPT] Summary: During the recent prolonged Regional Transportation Mitigation Fee (RTMF) appeal hearing, the Policy Board became deadlocked due to the dual weighted voting requirement. The dual weighted voting requirement was adopted in the initial bylaws of the Fresno Council of Governments and incorporated into the voting structure of the RTMF JPA. It presently requires a majority of the members (9) carrying 40% of the population to pass a motion. This voting process generally has served the board well over the years, as it provides representation by larger members based on population while allowing member coalitions to block controversial issues. However, it becomes a significant problem during an appeal process, when due process mandates a decision shall be rendered. To this extent, during the recent RTMF appeal hearing that resulted in a prolonged deadlock, the Policy Board directed County Counsel to prepare a methodology to break the deadlock; however, on the advice of County Counsel, that action was postponed because of due process concerns regarding on going litigation. Those concerns have been resolved and it is now appropriate for the board to consider the issue. When the COG was originally formed, the initial voting requirement to pass a motion required a majority of the members representing a majority (50%) of the population to support the motion. However, in 1989, when the City of Fresno s population exceeded 50% of the population, the Policy Board formed a subcommittee of Board members that conducted extensive negotiations to arrive at the current requirement. During that negotiation it became apparent there are subtle and complex dynamics involved in a voting structure wherein almost 82% of the population vote resides in the three largest members, with thirteen members aggregating the remaining 18%. Simply lowering the threshold beyond a certain point negates the reason for having a population threshold. The 40% threshold was arrived at after lengthy deliberation by Board members and is structured so that no one agency can pass or block a motion without a coalition of at least one or more other agencies. Respecting the sensitive balance struck in 1989 when the board renegotiated the dual weighted voting system, staff does not 1

recommend tampering with voting methodology. However, the issue of a deadlock arising in a situation that requires due process remains; therefore, a different track is proposed that will specifically apply only when an appeal is deadlocked essentially denying due process. The proposed deadlock rule shall not be applicable to voting on any other issue or situation. Staff recommends the RTMF Board modify the appeal process so as to treat a deadlocked vote on an appeal as a Technical Denial of the appeal on the basis the votes cannot be generated to grant the appeal, and directs staff to issue policy based findings to support the denial. This issue was run through the Policy Advisory Committee in July. In response to concerns by the City of Fresno, staff withdrew the item to allow members more time to contemplate the issue; however, during the discussion the City of Clovis proposed the deadlock rule should not apply until the Board had three opportunities to resolve the issue in open session. Resolution 2015 01 has been modified to incorporate this recommendation; therefore, the deadlock rule shall not apply unless the Board remains deadlocked after three appeal hearings. The issue was again run through the Policy Advisory Committee in September who concurred with staff recommendation. Action: Staff recommends adoption of Resolution 2015 01, modifying the appeal process to provide a resolution should the vote remain deadlocked after three appeal hearings. III. OTHER BUSINESS A. Items from Staff B. Items from Members IV. PRESENTATIONS A. Public Presentations FOR YOUR INFORMATION: This portion of the meeting is reserved for persons wishing to address the Board on items within its jurisdiction but not on this agenda. Note: Prior to action by the Board on any item on this agenda, the public may comment on that item. Unscheduled comments may be limited to 3 minutes. *All enclosures are available on our website at www.fresnocog.org 2

Fresno County Regional Transportation Mitigation Fee Agency Executive Minutes Date: Thursday, June 25, 2015 Time: 5:30 PM Place: COG Sequoia Conference Room 2035 Tulare St., Suite 201, Fresno, CA Members Attending: Mayor Nathan Magsig, City of Clovis Mayor Ron Ramsey, City of Coalinga Mayor Craig Knight, City of Firebaugh Mayor David Cardenas, City of Fowler Councilmember Clinton Olivier, City of Fresno Mayor Sylvia Chavez, City of Huron Mayor Stephen Hill, City of Kerman Mayor Chet Reilly, City of Kingsburg Mayor Victor Lopez, City of Orange Cove Councilmember Robert Beck, City of Reedley Mayor Amarpreet Dhaliwal, City of San Joaquin Mayor Scott Robertson, City of Selma Supervisor Henry Perea, County of Fresno Gail Miller, Caltrans Arthur Wille, Legal Counsel Tony Boren, Executive Director Les Beshears, Finance Director Absent: Mayor Robert Silva, City of Mendota Mayor Pro Tem Raul Villanueva, City of Parlier Mayor Joshua Mitchell, City of Sanger Others Attending: Bob Hillson, Caldwell, Bell & Hillison Kimberley Mayhew, Caldwell, Bell & Hillison Georgiena Vivian, VRPA Omar Mostafa, Caltrans Shruti Malik, HMM Margo Lerwill, Fresno EDC Brittany, Senator Vidak s office Patrick Smith, Harris Ranch Bruce Johnson, County Counsel Jason Moody, EPS Richard Darres, HMM Gary Joseph, Fresno EOC Mohammad Alimi, Fresno County Gary Yep, City of Kerman Charles Luper Kris Balaji, AECOM Shonna Halterman, City of Fresno Rob Weyant, Fresno EOC Moses Stites, FCRTA COG Staff: Mike Bitner Rob Terry Lindsey Chargin Lauren Dawson Jeff Long COG/FAX Brenda Veenendaal Peggy Arnest Muyi Zhou Toni Graham 1

QUORUM: At the start of the meeting there were 13 members present representing 94.72% of the population and there was a quorum to conduct business. (Clovis, Coalinga, Firebaugh, Fowler, Fresno, Huron, Kerman, Kingsburg, Orange Cove, Reedley, San Joaquin, Selma and Fresno County) Mayor Dhaliwal (San Joaquin) Chair, called the meeting to order at 5:31 p.m. I. Minutes of May 28, 2015 [APPROVE] Following an expressed opportunity for public comment, a motion was made by Mayor Cardenas (Fowler) and seconded by Mayor Lopez (Orange Cove) to approve the Executive Minutes of May 28, 2015 as presented. A vote was called for and the motion carried. II. Public Presentations Related To Closed Session Only And Then Retire To Closed Session a. Conference with legal counsel Existing Litigation; Government Code section 54956.9(d)(1): Clovis Herndon, LLC v. Fresno County Regional Transportation Mitigation Fee Agency, Fresno County Superior Court, Case No. 13 CECG 0048 Meeting was adjourned to Closed Session. III. Approve and Authorize Chair to Execute Settlement Agreement with Clovis Herndon, LLC regarding Superior Court Case No. 13 CECG 00488 CAC. The meeting reconvened after Closed Session at 5:51 pm. A motion was made by Mayor Lopez (Orange Cove) and seconded by Mayor Knight (Firebaugh) to approve and authorize Chair to execute the settlement agreement with Clovis Herndon, LLC. A vote was called for and the motion carried. IV. OTHER BUSINESS A. Items from Staff None. B. Items from Members None. V. PRESENTATIONS A. Public Presentations This portion of the meeting is reserved for persons wishing to address the Board on items within its jurisdiction but not on this agenda. There were no public presentations. 2

There being no further business, the meeting was adjourned at 5:55 pm by a motion by Mayor Chavez (Huron) and seconded by Councilmember Olivier (Fresno). A vote was called for and the motion carried. Respectfully submitted, Tony Boren, Executive Director \TG 3

RESOLUTION NO. 2015-01 A RESOLUTION OF THE FRESNO COUNTY REGIONAL TRANSPORTATION MITIGATION FEE AGENCY PROCEDURES FOR RESOLVING APPEALS OF THE REGIONAL TRANSPORTATION MITIGATION FEE WHERE THE BOARD IS DEADLOCKED The Board of Directors of the Fresno County Regional Transportation Mitigation Fee Agency ordains as follows: Section 1: Findings A. Pursuant to that certain Joint Powers Authority Agreement For The Creation of the Fresno County Regional Transportation Mitigation Fee Agency (hereafter the Joint Powers Agreement, the County of Fresno (hereafter referred to as the County ) and the incorporated cities situated in Fresno County (hereafter referred to as the Cities ) formed the Fresno County Regional Transportation Mitigation Fee Agency (hereafter, the Agency ). B. The Agency was formed to exercise the powers of the Cities and the County pursuant to the Mitigation Fee Act to enact, adopt, establish implement, impose, collect and administer the Regional Transportation Mitigation Fee to mitigate the regional transportation impacts of new development in the jurisdictional boundaries of the Cities and County. C. Section 3.5.2 of the Joint Powers Agreement provides that... any motion or action of the Board in order to be deemed carried or approved must receive an affirmative vote of the majority of the members in good standing, which vote must represent no less than 40% of the total population of the members in good standing... Therefore, for any motion or proposed action of the Board to carry, it must satisfy two prongs: (1) it must be supported by the affirmative vote of the majority of the members in good standing, and (2) the affirmative votes must represent 40% or more of the total population of the members in good standing. Taken together, these two prongs are sometimes referred to as the Board s dual-weighted voting requirement. D. On October 29, 2009, the Board adopted Resolution No. 2009-01, the Fresno County Regional Transportation Mitigation Fee Resolution of 2009 (hereafter referred to as Resolution No. 2009-01 ), which established the Fresno County Regional Transportation Mitigation Fee (hereafter referred to as the RTMF ) and the procedures for the levy, collection, and disposition of fees. E. Section 6.D of Resolution No. 2009-01 provided that appeals of the RTMF shall be filed with the Fresno County Transportation Authority and that appealable issues shall be limited to the application of the fee, application of credit, application of reimbursement, and application of exemption. F. On October 28, 2010, the Board adopted Resolution No. 2010-02, Fresno County Regional Transportation Mitigation Fee Special Studies and Appeals Resolution of 2010 (hereafter referred to as Resolution No. 2010-02 ).

G. Resolution No. 2010-02 established procedures for (1) special studies as directed by the Fresno County Transportation, Safety, Road Repair Measure approved by the voters of Fresno County on November 7, 2006 (hereafter referred to as the Measure C Extension ), and (2) appeals of the Regional Transportation Mitigation Fee. H. Section 5 of Resolution No. 2010-02 prescribe the (1) grounds on which an appeal may be taken; (2) the method by which an appeal may be initiated; (3) the documentation that may be filed in support of an appeal; and (4) the types of action the Board may take on an appeal. I. Section 5 of Resolution No. 2010-02 does not address the disposition of an appeal where the Board is unable to act due to a deadlock. J. The Board finds that there are occasions where the Board is unable to adopt a motion satisfying its dual-weighting voting requirement. When this occurs in the context of an appeal of the RTMF, the resulting deadlock frustrates the timely and appropriate disposition of the appeal. K. The Board finds that it is necessary to provide a mechanism to resolve appeals in the event that the Board is deadlocked. L. The Board hereby adopts this Resolution No. 2015-01, which revises and restates the procedures to be used by the Agency to resolve appeals to the Board of the Regional Transportation Mitigation Fee. As revised and restated herein, Resolution No. 2015-01 replaces Sections 5 and 6 of Resolution 2010-02. Section 2: Definitions A. "Agency" means the Fresno County Regional Transportation Mitigation Fee Agency. B. "Appeal" means a request that the amount of RTMF owed by an applicant for a specific project be other than the amount that would be owed if the RTMF was applied following its usual procedures. C. "Applicant" means the developer of a project subject to the RTMF as generally applied. D. "Board" means the Board of Directors of the Agency. E. Deadlock occurs when the Board is unable to adopt a motion that satisfies the Board s dual-weighted voting requirement. F. "Executive Director" means the Executive Director of the Agency. G. "Record of Payment" means the document used to calculate and record the RTMF amount for a specific project, a copy of which is included in the Fresno Regional Transportation Mitigation Fee Administration Manual. H. "Special Study" means a technical analysis carried out for the purpose of establishing an appropriate RTMF level for a specific project.

I. "Staff' means the staff of the Agency. Section 3: Procedures for Appeals A. Supersedes Previous Process. The procedures herein supersede and replace the procedure established in Resolution 2010-02 Sections 5 and 6. B. Grounds For Appeal. An Applicant may appeal the following matters to the Board: (l) Executive Director's decision that the project is not sufficiently unique to justify a Special Study; (2) application of the fee; (3) application of credits; (4) application of reimbursement; and (5) application of exemption. C. Initiating an Appeal. An Applicant wishing to file an appeal of Staff s determination to the Board must pay in full the RTMF Staff has imposed and file a written notice of appeal within 10 calendar days of the date of Staff's written notification to Applicant of the RTMF to be imposed on the project via a copy of the Record of Payment. The written notice of appeal must set forth the reasons Applicant believes that the fee as calculated by Staff is not justified and the amount of fee the Applicant believes to be correct. This letter must be accompanied by a copy of the Record of Payment. D. Supporting Documentation. The Applicant may submit additional documentation to support its appeal. If the Applicant chooses to submit the supporting documentation then they must submit, at their own expense, twenty-two copies of each document they want considered by the Agency. These copies are for the use of the Agency and will not be returned to the applicant. Appropriate supporting documentation may include, but is not limited to, any or all of the following: i. If the Appeal is based on some document other than the Record of Payment, such as a document issued by a local jurisdiction indicating the starting date of vesting rights or a document showing earlier payments for which the Applicant wants credit, then copies of this document must be included or it will not be considered. ii. If the Appeal is based on a technical issue related to traffic or trip generation then the Applicant must submit a technical analysis for consideration by the Board. The Applicant is responsible for the cost of this analysis. Section 4: Consideration of Appeal by Board. The Board shall consider an Appeal within 3 regular meetings of the Agency's receipt of the written Appeal. Based on its consideration of the Appeal, the Board may choose to set the RTMF for the Applicant's project at the amount stated in the Appeal, the amount recommended by Staff based on the RTMF as generally applied, or some other amount deemed appropriate based on the information presented to the Board. The Board shall adopt written findings setting forth justification for their determination. If a Deadlock of the Board occurs, the provisions of Section 5 of this Resolution shall control. Section 5: Procedure for Resolving An Appeal of the RTMF When A Deadlock of the Board Occurs

A. When a Deadlock of the Board regarding an appeal of the RTMF occurs, staff shall schedule one or more subsequent hearings on the appeal to attempt to break the Deadlock. If, after the third hearing the board remains deadlocked, the adopted policy based determination of Agency staff regarding the subject of the appeal shall be the final decision of the Agency. B. Within 15 calendar days of the Board making a determination on an appeal of the RTMF that the fee applies, or in the absence of a Board determination due to Deadlock, a policy based determination by staff that the fee applies, Agency staff shall deliver by first class mail, written findings to the applicant that explain the policy determination that the RTMF applies to the project under consideration. Such findings shall be approved by the Executive Director or his/her designee, as evidenced by his or her signature and date of execution. Section 6: Imposition of Fee For Purposes of Government Code Section 66020 et seq. A. For purposes of filing a protest and legal challenge to the fee under Government Code section 66020 et seq., the RTMF will be deemed to have been imposed on the date the Board takes action on an Appeal, or, if a Deadlock of the Board occurs, the date of the Deadlock, whichever is applicable. B. If no timely Appeal is filed, the RTMF will be deemed to have been imposed on the date of Staff s written notification to Applicant of the RTMF to be imposed on the project via a copy of the Record of Payment or on the date of the Executive Director's written notification of his decision that a Special Study is not warranted, whichever is applicable. Section 7: Effective Date A. This Resolution shall become effective as of September 24, 2015. Its provisions shall apply to all appeals initiated after its Effective Date. *** By Amarpreet Dhaliwal, CHAIR BOARD OF DIRECTORS ATTEST: Tony Boren EXECUTIVE DIRECTOR