Mt. Shasta Tomorrow
An Organization of Concerned Citizens
101 E. Alma Street, 100-A
Mt. Shasta, CA 96067
City of Mt. Shasta
305 N. Mt. Shasta Blvd.
Mt. Shasta, CA 96067
OBJECTION TO CITY STAFF'S CHARGING $250.00 FEE TO REQUEST COUNCIL RECONSIDERATION OF FLAWED PLANNING COMMISSION DECISION
Honorable Councilmembers, March 31, 1999
This letter is a formal request of the Council to set aside the unjust actions and demands of City Staff in imposing a $250.00 fee upon our pending appeals of Planning Commission development project approvals. The Staff acted without clear authority by misinterpreting City policy. Staff's actions serves to impose an improperly high barrier to Council review of the Staff's own errors in processing the applications and recommending their approval to the Planning Commission. This $250 fee effectively limits those who cannot afford it from exercising their rights to free speech and to petition their elected officials. It is a violation of free speech rights and must not be sanctioned by City elected officials.
Accordingly, in the appeals to the Council of the Planning Commission's Kellogg Office Building approval and the Ace Hardware Building Expansion approval, the fees of $250 for each appeal is being paid under strong protest! (See also Government Code § 66020)
Furthermore, the Staff acted illegally by depositing the checks we submitted for these Appeals in violation of our written instructions and without our permission. Those checks were specifically submitted with instructions not to be deposited unless the appeals were denied. Mt. Shasta Tomorrow was not contacted in advance either about these checks being deposited nor given a chance to challenge the Staff's misuse of those bank instruments.
FEE IS UNREASONABLE AND EXCESSIVE
The imposition of a fee for a public appeal of a challenged Planning Commission decision is unreasonable and excessive. The City has no substantial documentation that justifies as legitimate that amount of money for an appeal. An applicant for a development project's design review only pays $150 to have his project application reviewed, and that involving multiple meetings with various staff members, possible legal consultation, staff research, Xeroxing, preparation of a staff report, and Planning Commission and sometimes City Council review. A public appeal by comparison only involves taking that already prepared information to the Council for independent review and clearly doesn't involve the level of effort for the initial application. An appeal therefore shouldn't cost nearly twice as much as an application. Especially when the City has not previously documented the need for such a fee.
Moreover, a project proponent receives benefits from a project's review that easily warrant an application fee, but the public which has nothing to financially gain isn't in that same beneficial position. And the public already pays for governmental services by way of taxation and shouldn't be double charged for services it has already paid for.
PUBLIC APPEAL FEE IMPOSITION IS A MISINTERPRETATION OF CITY POLICY
The City adopted a revised fee schedule by resolution (CCR-93-28) on May 10, 1993 for the processing of planning related permits. Nowhere in this Resolution does the City state that members of the public who disagree with an action of the Planning Commission are required to pay a fee of $250 to appeal a decision to the City Council. This Resolution is directed at "applicants" for such permits. It states:
"In addition to the above fees, applicants shall be required to reimburse the City of Mt. Shasta for any additional costs of issuing permit, including but not limited to, extraordinary fees for legal counsel and/or consultant costs." (emphasis added)
If the City had intended this Resolution to have applied to "citizens" as well as applicants who have financial interests in obtaining such permits, it could have easily written that into the law, but this was not done. The Staff cannot now impose a new requirement which was not specifically included in that application fee schedule. There certainly is no local ordinance setting such a fee of $250 for an appeal.
CITY ORDINANCES DO NOT ALLOW APPEAL FEES FOR DESIGN REVIEW
The Architectural Ordinance does not require any fee for an appeal of a Planning Commission approval of architectural review. It only allows for fees for design review, but not for appeals. The City's Zoning Ordinance may allow for appeal fees for Use Permits and Variances, but those are not relevant for the Ace or Kellogg project since those both had applied for architectural review:
- 18.60.060 Fees. The City Council of the City of Mt. Shasta shall adopt applicable fees for design review, such fees to be fixed by resolution, and to be in an amount equal to the costs of processing design review applications.
- 18.60.070 Appeals. The applicant may file an appeal to the City Council on any ruling of Architectural Review within ten (10) days of the Commission's action. Appeals shall set forth in detail alleged inconsistencies or non-conformity with procedures or criteria set forth in or pursuant to this code. A public hearing shall be held upon the appeal at the next regular Council meeting held at least ten (10) days after publication of notice of the hearing, and the Council shall make its findings and conclusions no later than forty-five (45) days after the filing of said appeal.
Thus, the City's own ordinances serve as further evidence that the Staff misapplied City policy when it imposed this appeal fee for these two projects' design review approvals.
FEE IS UNCONSTITUTIONAL BECAUSE IT IS DISCRIMINATORY
The Staff's claim to a $250 fee essentially bars some citizens who cannot afford $250 their basic rights to have local planning regulations upheld. The City isn't allowed to so discriminate against those who can't afford such fees. Nor does the City have any policy in place for exception to these fees from some applicants who cannot afford those fees. If it did, then that would be evidence that such fees were meant to also be applied to members of the public as well as development proponents who by definition have money to spend for their own financial gain. Imposing such fees on the public however is economic discrimination as well as violation of numerous other public rights. As a voluntary citizen organization, Mt. Shasta Tomorrow is certainly not in the business of financing the City Staff for correction of any mistakes it makes. Nor can or should the City require such fees from anyone else within the public. It is unconstitutional to impose such discriminatory fees.
FEE IS UNCONSTITUTIONAL BECAUSE IT VIOLATES FREE SPEECH RIGHTS
The Staff's claim to such appeal fees from the public is constitutionally prohibited as a violation of our First Amendment right to free speech and State rights because it unduly infringes on our constitutional right to petition government:
California Constitution, Article I, Section 3 (1996)
§ 3. ASSEMBLY AND PETITION
"The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good."
The City Staff cannot hide its illegal fee imposition behind an assertion that the $250 fee will be refunded if the appeal is upheld. The public's right to free speech does not depend upon a politically popular or successful outcome.
The right to have one's voice heard and one's views considered by the appropriate governmental authority may not be conditioned by the City upon "the exaction of a price". For such is the "policy of protecting the First Amendment against possible chilling influences."
(This right is discussed in the California Appellate Court decision below)
Moreover, the City Council is required to act objectively in making a decision on such appeals and shouldn't be biased or stand to gain $500 if it decides to deny the appeals.
Accordingly, we ask that you refund this total of $500 in fees for both appeals with interest. We also ask that the Council clarify its policies and instruct the City Staff not to impose such fees in the future for any public appeals of Planning Commission decisions to protect public rights.
Director, Mt. Shasta Tomorrow
REFERENCE QUOTED ABOVE:
The following excerpt is from Matossian v. Fahmie (1980) 101 Cal. App. 3d 128, 135; 161 Cal. Rptr. 532, 535. Note, particularly, the last paragraph, which states that the right to petition cannot be conditioned "upon the exaction of a price."
In determining constitutional issues such as impairment of the First Amendment right of petition, and where as here the facts are without substantial controversy, the question "is one of law [for the reviewing court] and not of fact, . . ." ( L. A. Teachers Union v. L. A. City Bd. of Ed. (1969) 71 Cal.2d 551, 556 [78 Cal.Rptr. 723, 455 P.2d 827].)
The right of petition to governmental agencies, like freedom of speech, of the press, and of religion, has "a paramount and preferred place in our democratic system." (American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178 [10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259] [cert. den., 368 U.S. 819 (7 L.Ed.2d 25, 82 S.Ct. 34)].) "All these, though not identical, are inseparable." ( Thomas v. Collins (1945) 323 U.S. 516, 530 [89 L.Ed. 430, 440, 65 S.Ct. 315].) "Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances." (U.S. Const., 1st Amend.) "The people have the right to . . . petition government for redress of grievances, . . ." (Cal. Const., art. I, § 3.)
"'The very idea of a government . . . implies a right on the part of its citizens [**536] . . . to petition for a redress of grievances.'" ( De Jonge v. Oregon (1937) 299 U.S. 353, 364 [81 L.Ed. 278, 284, 57 S.Ct. 255].) "[Any] attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and [*136] present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation . . . . Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation . . . . It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances." (Thomas v. Collins, supra, 323 U.S. 516, 530 [89 L.Ed. 430, 440]; italics added, fn. omitted; American Civil Liberties Union v. Board of Education, supra, 55 Cal.2d 167, 179.) And as said in In re Allen (1969) 71 Cal.2d 388, 391 [78 Cal.Rptr. 207, 455 P.2d 143]: "The government is without constitutional authority to impose a predetermined condition on the exercise of a constitutional right or penalize in some manner its use."
The right to petition for redress of grievances is not confined to "religious or political" matters. (Thomas v. Collins, supra, 323 U.S. 516, 531 [89 L.Ed. 430, 441].) "[Commercial] speech, like other varieties, is protected" by the First Amendment. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 770 [48 L.Ed.2d 346, 363, 96 S.Ct. 1817].) "[It] would be destructive of rights of association and of petition to hold that groups with common interests may not . . . use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." ( California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510-511 [30 L.Ed.2d 642, 646, 92 S.Ct. 609].)
Where administrative agencies such as the Department must make factual determinations "'the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, . . .'" (Weaver v. Jordan (1966) 64 Cal.2d 235, 245 [49 Cal.Rptr. 537, 411 P.2d 289] [cert. den., 385 U.S. 844 (17 L.Ed.2d 75, 87 S.Ct. 49)]; italics added.)
Nor does the right of the people to petition government depend upon "motivation" or "purpose." It is what is done that is significant. (See Mine Workers v. Pennington (1965) 381 U.S. 657, 670 [14 L.Ed.2d 626, 636, 85 S.Ct. 1585]; Weiss v. Willow Tree Civic Ass'n (S.D.N.Y. 1979) 467 F.Supp. 803, 817; Sierra Club v. Butz (N.D.Cal. [*137] 1972) 349 F.Supp. 934, 938.) "[The] motive, even if malicious, of defendants is unimportant if legal ground existed upon which to predicate" their protests and appeal. ( Paskle v. Williams (1931) 214 Cal. 482, 487 [6 P.2d 505].) And patently the right of petition or protest to a governmental agency does not depend upon a successful outcome. (italics added)
In furtherance of these principles it is held that: "The right to have one's voice heard and one's views considered by the appropriate governmental authority" (Williams v. Rhodes (1968) 393 U.S. 23, 41 [21 L.Ed.2d 24, 37, 89 S.Ct. 5], Harlan, J., conc.) may not be conditioned by a state upon "the exaction of a price" Garrity v. New Jersey (1967) 385 U.S. 493, 500 [17 L.Ed.2d 562, 567, 87 S.Ct. 616]), or "punishment" ( Thornhill v. Alabama (1940) 310 U.S. 88, 101-102 [84 L.Ed. 1093, 1102, 60 S.Ct. 736]), or "threat of criminal or civil sanctions" ( Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [49 L.Ed.2d 683, 698, 96 S.Ct. 2791]). For such is the "policy of protecting the First Amendment against possible chilling influences." (Garvin v. Rosenau (6th Cir. 1972) 455 F.2d 233, 239; and see Shapiro v. Thompson (1969) 394 U.S. 618, 631 [22 L.Ed.2d 600, 613, 89 S.Ct. 1322]; United States v. Jackson (1968) 390 U.S. 570, 582 [20 L.Ed.2d 138, 147, 88 S.Ct. 1209].)"