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The City of Los Angeles (LADWP) has recently filed two lawsuits against the Mammoth Community Water District, seeking to invalidate MCWD’s water rights for surface water supply from Mammoth Creek. The District considers these lawsuits to be without merit, and is taking aggressive actions to defend the community’s water rights. These water rights, according to MCWD General Manager Greg Norby, properly issued by the State of California, go back nearly 50 years, and have been put to beneficial and well managed use by the community. The consequences of LA prevailing in these lawsuits would be severe and long lasting.

LADWP has filed a number of court motions related to these lawsuits in Mono County Superior Court, one of which seeks to change the court venue from Mono County to Fresno County, where “LA’s attorneys believe the Fresno area courts will be more sympathetic to their water grab,” Norby said in a letter. The District believes strongly that Mono County water issues should be adjudicated in Mono County, where the fullest appreciation of the impacts of any legal decisions can be expected.

The change of venue hearing will be held on Thursday April 12, at 9:30 a.m., at the courthouse in Mammoth Lakes.

Norby urged community members to attend the hearing “to demonstrate to the presiding judge and Judicial Council that this case is of critical importance to the citizens of Mammoth Lakes and the larger Mono County community, and should rightfully be heard in the local courts.”

If you have questions about the lawsuits, the actions the District is taking, or what you can do to help stop LA’s water grab, visit MCWD’s website at http://www.mcwd.dst.ca.us/CityofLALawsuits.htm or read The Sheet’s previous coverage: http://thesheetnews.com/archives/12269 and http://thesheetnews.com/archives/12858

Judge appears tired of Town’s stall tactics in airport litigation

The Town of Mammoth Lakes was given one extra week to file any additional pleas and defense motions in a Thursday morning hearing regarding its ongoing airport litigation.

The hearing was held in Mono County Superior Court, concerned a Writ of Mandate, recently filed by the plaintiff, Mammoth Lakes Land Acquisition.

The writ essentially petitions the court to enforce the judgment against the Town as part of the Hot Creek Aviation litigation.

The Town now owes roughly $42 million in judgment and attorney fees, and has exhausted all of its appeals. If Presiding Judge Roger D. Randall, a retired Superior Court justice from Kern County, upholds the writ, the Town would have to begin putting plans in place for a 10-year payment schedule to settle its obligations under the judgment, which was made final one year ago.

Attorney John Higginbotham with Best & Krieger, the Town’s retained counsel, asked Judge Randall to consider an evidentiary hearing so the Town can better present evidence to support its position, as well as what Higginbotham said would be an accurate account of the Town’s finances. He said the Town needed more time to respond than the 10-days notice that accompanied the writ.

Randall, however, said such hearings aren’t generally an expectation in these types of writs, and also pointed out that the Town has already had an extra 14 days, but was willing to grant an additional week.

Attorney John Pierce, representing MLLA, told the Judge he’s still waiting to hear whether the Town intends to present any type of defense. “There’s no disputing the facts … the judgment was final a year ago, and there’s been no attempt at payment or raising funds to make any payment,” Pierce said. “Do they intend to seek a 10-year installment plan rather than bandy about some hypothetical check?” He also said there’s been no lack of due process.

Higginbotham replied that the Town is effectively insolvent. “If the court orders [the writ], it will be insolvent many times over,” Higginbotham told the Judge. Higginbotham asked the Judge to consider allowing due process by means of recently enacted state legislation for municipalities to mediate these types of dire situations, “rather than being forced into emergency action and declaring Chapter 9 bankruptcy, which isn’t in anyone’s best interest.”

Pierce countered, saying that mediation is “irrelevant to the matter before us.” Judge Randall seemed to agree, adding that, “Mediation has nothing to do with these proceedings.” Additional pleas and defense motions are due by March 15. Any further response from the Town itself is due by March 21. The hearing is scheduled to reconvene on March 23 at 1:30 p.m.

A look back at the original Hot Creek litigation ruling

Back in 2008 The Sheet was the only local news source to closely follow the Hot Creek court proceedings that took place in Bridgeport at the Mono County Courthouse. It was here that the Town of Mammoth Lakes originally lost the $30 million lawsuit that had been filed against it by Mammoth Lakes Land Acquisition, a.k.a. Hot Creek. Now, three years later, the Town must finally come to terms with the original judgment since both the Court of Appeals and the State’s Supreme Court have denied any changes to the 2008 decision.

To see The Sheet’s original coverage of the court case from 2008, click on the links below.

April 12, 2008

April 19, 2008

Special Edition: April 22, 2008

Updated 5:40 p.m. The Sheet spoke with the Town’s Interim Town Manager Marianna Marysheva-Martinez who confirmed the California Supreme Court’s denial of the Town’s petition for appeal.

“This means that we are back to the $30 million judgment,” Marysheva-Martinez stated. “Unfortunately this was the last and highest level of appeal available, which means we have to deal with the judgment.”

Marysheva-Martinez was confident that the Town would formulate a plan on how to deal with the judgment and the costs that accompany it.

“It is frustrating for all those involved, but we are going to deal with it,” she said.

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According to the California Appellate Court’s website, the California Supreme Court has denied the petition from the Town of Mammoth Lakes to appeal the Hot Creek litigation case.

At the end of 2010, the Town had appealed the original court ruling in favor of Mammoth Lakes Land Acquisition (i.e. Hot Creek) in the $30 million breach of contract lawsuit. The State’s Third Court of Appeals had denied this appeal so the Town had taken the next step and filed a petition for appeal with the Supreme Court. The Supreme Court generally hears just 5% of all petitions received and it seems the Town’s will not be one of them.

Keep checking back for more on this breaking story.

Clark defends Town’s stance in airport litigation

In the aftermath of the Town’s stinging defeat in the State’s Third Court of Appeals, which upheld a $30 million judgment in favor of a developer (Mammoth Lakes Land Acquisition, aka the Hot Creek developers) against the Town, one local business owner wrote me an email entitled, “Hmm, time to pack our bags?”

My response: The anticipation of pain is always worse than the pain.

On Monday, I sat down with Town Manager Rob Clark to ask him where he thought it all went wrong – twice.

In large measure, Clark believes it’s because Hot Creek has an easier story to tell. The narrative is simpler: “We got screwed by the Town.” This narrative is buffeted by some rather unfortunate and inflammatory comments made at the time by Interim Town Manager Charlie Long, especially where he asked the Federal Aviation Administration to help the Town “get rid of Hot Creek.”

This, said Clark, suggested a collusion with the FAA which just did not exist.

“On the surface, there was stuff that was said which makes it look like [we acted in] bad faith … I know for a fact that’s not the case. I was there.”

Clark also scoffed at the notion that the Town could somehow have the power/pull to manipulate the FAA.

As for the Town’s own story, Clark described it as “more nuanced.”

Much of that story rests in the concept of Grant Assurances. Every time the FAA gives an airport money, it does so with the idea that the money comes with certain strings attached. In other words, grant recipients have to comply with federal requirements imposed on publicly funded airports.

That is the assurance.

And the FAA had given the Town money for various airport improvements long before Hot Creek came along. Meaning assurances were already in place.

Both sides should have been aware of the FAA’s role.

As Mammoth local Owen Maloy observed in an email this week, ““I cannot understand how the Town could have lost this case. Maybe the following was never brought up.

The FAA had already given grants to the Town long before 1997, as pointed out by Andy Richards in the FAA letters in 2004-5. The FAA grant assurances were already in place when Hot Creek came on the scene. If Terry Ballas knew so much about airports, he should have known about the FAA regulations, including those relating to the proper location of hangars outside the runway safety area.”

The reason the project got delayed, said Clark, was because the FAA raised certain objections to the Hot Creek Development Agreement which had to be resolved. Clark said these issues, related to the residential nature of the condominium development as well as the use of aeronautical land for non-aeronautical uses, had been resolved by 2006.

The residential issue was resolved, said Clark, by mandating that the condominium project would be for transient use only and would accommodate no permanent residents.

The land issue was resolved by the Town’s promise to reach agreement on a future land exchange with the Forest Service to replace the land it had ceded to Hot Creek for residential construction.

“We told them the coast was clear … and then they filed the lawsuit.”

Sheet: Would the Town have approved a development application with the following conditions?

Clark: I’m assuming we would’ve approved it.

Sheet: So why did they file suit?

Here, there is only conjecture, but one theory is that by 2006, the window of opportunity had disappeared. Remember, Tanavista, the Ritz Carlton Residences, The Sherwin … several projects were shelved because the development climate had already begun to shift and financing wasn’t available. Perhaps Hot Creek already knew its development prospects were dim.

It is Clark’s belief that both the Town and Hot Creek were bound by Grant Assurances to comply with FAA mandates before moving forward. That it was a mutual problem to be solved. Whereas the court ruled that if the grant assurances conflicted with elements of the development agreement, that it was strictly the Town’s problem.

The irony of it all, said Clark, is that Hot Creek’s Terry Ballas and C. Ray Johnson were initially on board with plans for airport expansion. “They knew it would benefit them,” said Clark.

Clark attributes a lot of the FAA’s later reticence (it, after all, approved the Airport Layout Plan in 1997 which included the condominium development) as a result of its embarrassment at losing the airport environmental lawsuit to the Sierra Club, et. al. in 2003.

After that, he said, “they [the FAA] wanted to take away the risk factors.” One of those risk factors was obviously a residential development on airport property.

The Town is appealing the case to the California Supreme Court. The cost, factoring in additional interest which will accrue from the judgment, will likely run more than $1 million. The Supreme Court generally hears just 5% of all petitions received. Clark said that because of a lack of case law in regard to Development Agreements, he believes we have a statewide issue which has more likelihood of being heard.

And from Kirkner’s desk …

Mono County Clerk/Recorder Lynda Roberts has a better idea of what the Special Election on Jan. 4 actually cost the County. “My rough estimate, which still might be a little low because all of the employees and contractors have yet to turn in their hours, is $54,231,” Roberts explained. “If we had done the election entirely vote by mail the cost would have been closer to $43,436.” The more than $10,000 in savings would come from the lack of poll workers, setup and cleanup that would accompany an all vote by mail election.

Roberts added that all elections are not the same and this most recent one was actually on the cheaper side of things because there was so little on the ballot. “When there is more on the ballot it costs more because it takes my office longer to proofread,” Roberts explained.

www.thesheetnews.com

The Sheet’s online arm continues to grow and last month received more than 8,000 hits. This was an increase of 2,000 hits over the previous month. Kirkner updates the site Monday through Friday, and we continues to offer fresh stories every weekday and breaking news on the weekends.

More than a mouthful

On Wednesday the Planning Commission reviewed and approved the framework for the South District’s Neighborhood District Plan. This process rolls four areas into one plan. The Sierra Star District, the East Open Space Stream Corridor District, the South Old Mammoth Road District and the Bell Shaped Parcel will all be studied under the SDNDP. Previously the Mammoth Lakes Town Council had directed staff to complete certain prioritized NDPs in the 2010/11 fiscal year. The districts listed are the majority of the priorities from Council’s list. The remaining priority NDP, the Sierra Valley Sites District, is to be initiated as a separate process in early 2011. Watch for upcoming public workshops in order to get involved.

Officially on the hook for $30 million, plus. Click here for the entire Court Document.

In a decision that came sooner than expected, the Court of Appeal of the State of California, Third Appellate District denied the Town of Mammoth Lakes’ appeal in the Hot Creek litigation case on Dec. 30. Therefore, the Town is now liable for $30 million in damages, plus more than $2.3 million in attorney fees to Mammoth Lakes Land Acquisition, the plaintiff in the case.

According to the official report, none of the Town’s contentions from its appeal had merit in the Court’s eyes. By failing to move forward with the hotel/condominium project at the Mammoth Yosemite Airport unless the FAA’s objections were resolved was ruled by the Court to be a breach of contract, i.e. the development agreement that the Town had in place with Mammoth Lakes Land Acquisition.

The document cites, “Another clause requiring the parties to comply with the rules and regulations of the FAA did not excuse the Town from performing on the development agreement because the FAA’s objections were based on grant assurances made by the Town to obtain FAA funding, not on FAA rules or regulations.”

Within the 66-page document, Airport Manager Bill Manning is quoted as saying “I believe that [the FAA representative's] form of correspondence was ridiculous. If he had issues or comments that he wanted me to deal with, I believe he would have sent me a formal FAA letter. We correspond regularly with the FAA. This — the fax notes were highly irregular. I just felt like it wasn’t an official correspondence and I wasn’t obligated to respond to it.”

The development agreement was signed nine days after the FAA made known to the Town its reservations regarding the document.

It is  unclear at this time what the Town’s next step will be. Offices were closed on Dec. 31 for the holiday. Previously, the Town Council had been preparing for a potential negative verdict by  exploring several options. These included filing a Petition for Review with the California Supreme Court, challenging the denial of the Town’s insurance coverage, and seeking legal advice on municipal bankruptcy options.

The Town had re-argued the appeal on Dec. 20 after a Justice that had heard the original argument on Oct. 18 had retired. A decision could have taken up to 90 days, but instead took a mere 10.

The Town of Mammoth Lakes was in the California Third District Court of Appeals on Monday seeking the overturn of a 2008 jury verdict that the Town lost to Mammoth Lakes Land Acquisition (aka Hot Creek Development). Hot Creek claimed that the Town interfered with its rights under a development agreement to build a condo-hotel at Mammoth Yosemite Airport. The Mono County jury unanimously awarded MLLA a $30 million judgment. The Town quickly appealed.

Monday’s hearing, which was attended by Town Manager Rob Clark and Town Attorney Peter Tracy, called for each side to give a 15-minute presentation to be followed by questions from the three-judge panel.

Inside of one minute, justices interrupted the Town’s presentation and began peppering attorney Maria Chedid with questions.

MLLA Attorney Dan Brockett of the firm Quinn Emanuel described the Town’s reception by the Judges as “chilly.”

Brockett was satisfied that the Judges understood the case and were “respectful of the jury’s work.”

Clark didn’t read much into the Justices’ demeanor. “It’s like reading tea leaves,” he said.

The case really comes down to whether one believes the Town was forced into a dissolution of its agreement with Hot Creek based upon orders from above (FAA), or whether the Town may have used or even solicited such orders as an excuse to wriggle out of the development agreement in order to date a wealthier, sexier partner (The FAA had dangled $30 million in potential airport improvements so the Town could accommodate 757s landing here from faraway places).

The jury concluded Mammoth was a two-timing tramp.

Appeals have a low rate of success, Brockett added, because the system wishes to respect juries. According to the Eisen legal website under the header “FAQ Regarding Appeals,” in California “about one appeal in four results in reversal of the trial court, in whole or in part.”

However, another legal expert we spoke to said Appeals Courts are notorious for reducing jury awards and are protective of governmental bodies because the system does not wish to see average citizens penalized monetarily by the boneheaded decisions of elected and non-elected public officials.

A few things to consider. Court judgments appreciate at a rate of 7% (for public agencies) annually, meaning that $30 million judgment has already appreciated to $34.3 million. Then you can tack on $2.5 million for Quinn Emanuel’s attorney fees if we lose.

Back in Mammoth on Wednesday, Town Council received a closed session briefing about the appeal following its regular meeting. According to a press release from the Town issued on Thursday, “based on the comments and questions made at the hearing by the panel of judges, the Town Council has concluded that there is a significant risk that the trial court verdict will be upheld. A decision is expected within 90 days.”

To prepare for a potential negative ruling on the appeal, Council is exploring several options. These include filing a Petition for Review with the California Supreme Court, challenging the denial of the Town’s insurance coverage, and seeking legal advice on municipal bankruptcy options.

Council, we hope, understands these are all Hail Mary options.

Additional Council coverage from Kirkner …

Deb Pierrel, Joyce Turner and Sandy Hogan are working with the Town on a budget reformatting process and presented their preliminary results at Wednesday night’s Council meeting. Council was very impressed with their work. “John Vereuck is probably smiling because the 2009 budget oversight committee that we were both part of was trying for transparency and methodology,” said Council member Rick Wood, which was what he believed the three women had presented that evening. The most interesting potential component of the plan was an idea from the budget format used in Los Gatos, Calif. According to Pierrel, Los Gatos focuses on specific projects each fiscal year (something Mammoth could potentially do if it gets its project priority list nailed down), and even asks for donations for the selected projects. This way citizens aren’t always coming in and asking Council for money all over the place, Pierrel said. The donations get the community to rally around projects that aren’t fully funded.

Rick Wood may have been complimentary to the budget reformatting consultants but was much less so to Town staff after reviewing their proposed workplans. “It was difficult to get through this agenda bill even though there’s nothing new in it,” Wood critiqued. “I don’t want to see this drop off, it doesn’t make me happy at all. You should follow the example of the volunteers [Pierrel, Turner and Hogan] who have put thousands of hours into the budget reformatting process.” Mayor Pro Tem Bacon added that the workplan only shows what each department is individually working on and not overall priorities.

Lastly, hats off to Assistant Town Manager Karen Johnston who sat through her final Council meeting on Wednesday night. Johnston told The Sheet that she does not have any plans at this time for what she is going to do when she is officially released from the Town on Nov. 1. Finance Director Brad Koehn and Human Resources and Risk Management Director Michael Grossblatt will be out as of Nov. 1 as well, part of the Town layoffs that occurred in September.

AT&T rethinks upgrade timeframe

AT&T recently announced that it would speed up its completion of network upgrades on wireless assets acquired from Verizon Wireless in June of this year. The timeline has been bumped up from the original estimate of sometime in mid-2011, to the end of 2010 or beginning of 2011. This is important to Mono and Inyo counties residents because it means service for Alltel customers in the area, also known as California Rural Service Area (RSA) 6.(1), will be launched sooner rather than later. Alltel was acquired by Verizon in 2008.

An AT&T store has set up shop in Mammoth on the corner of Meridian Blvd. and Old Mammoth Rd. where the Starbucks used to be, but it has yet to open. The Sheet stopped by the store on Thursday and found a manager inside. The manager could not comment on the push to complete the network upgrades sooner or even on when the store is expected to open.

“If I say anything I could lose my job,” she said, adding only that the store would be opening “soon.”

Alltel customers in the Mono and Inyo county areas who are joining AT&T as a result of the Verizon transaction will receive an offer for a brand new AT&T handset at no additional cost. Depending on when the local store actually does open you may even be able to shop locally for said device. Additionally, according a press release from AT&T, “the vast majority of customers choosing free comparable devices will be able to keep their existing rate plans, none of these customers will be required to assume an additional contract term.”

Patti Rea

Local friends are mourning the untimely loss of Mammoth resident Patti Rea, who died at 10:10 a.m. on Wednesday, Oct. 20, finally losing a hard-fought battle to recover from internal injuries sustained in an auto accident.

Rea and her husband, Ralph, both suffered major injuries in a crash near Little Lake on U.S. 395 late in the afternoon Sunday, Sept. 12. The Reas were returning home from a UCLA game that weekend when, according to the California Highway Patrol, Patti dozed off at the wheel while driving.

Mr. Rea said he plans to hold celebrations of Patti’s life in Mammoth and Woodland Hills. Times, places and dates will be announced later. In lieu of flowers, he said Patti would prefer donations be made in her honor to Chamber Music Unbound (CMU), which is a 501(c)3 non-profit. Donate to CMU at P. O. Box 1219, Mammoth Lakes, CA 93456-1219.

President Dwight D. Eisenhower  8 Nov. 1954 (In a letter to his brother Edgar)

“Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.”

Town gains support from fellow municipalities in its appeal of airport litigation judgment

There may be some light at the end of the tunnel.

The Town of Mammoth Lakes may yet wriggle out of a $30 million judgment which went against the municipality in 2008.

At that time, Mammoth Lakes Land Acquisition (MLLA), aka the Hot Creek developers, successfully sued the Town for breach of a development agreement.

The Town promptly appealed the judgment.

At the Mammoth Lakes Town Council meeting Wednesday, Town Attorney Peter Tracy announced that the League of California Cities and California State Association of Counties have submitted an amicus curiae brief to the Appeals Court on the Town’s behalf.

Tracy believes this show of support will weigh a lot in the ultimate decision of the Court of Appeals.

“Instead of [seeing this as] a gunfight between a city and a developer, the Court will recognize this has statewide implications,” said Tracy.

A brief synopsis

Tracy said there was a case in ‘70s where a developer was proceeding along with a project until the municipality stepped in and changed its codes in  midstream, effectively derailing the project.

This led to the passage of a statute by the California legislature regulating Development Agreements. Tracy said the statute benefited developers in that it “froze” zoning once a D.A. had been signed.

It also benefited governmental entities, allowing them to wrangle certain guarantees and benefits from the developer in exchange.,

*Ah, so this is where the concept of ‘community benefits’ must stem from.

In our case, contends Tracy, a development agreement was signed and though the developer had laid out informal project plans, he never actually filed a development application.

Well actually, said Tracy, correcting himself, an application was filed and then promptly withdrawn.

Hot Creek took the position that the D.A. was a formal contract and that it never filed a development application because it assumed the Town would reject it.

“Anticipatory breach of contract,” opined Tracy.

The Town contends that since Council never had a chance to vote on anything, how could there have been a breach?

Any opinions proffered by Staff to the applicant don’t count.

“Staffers,” said Tracy, “don’t make policy.”

Expect an Appeals Court decision later this summer.

The effects of the Hot Creek airport litigation on the Town’s financial health are becoming increasingly clear.

On Wednesday night, Mammoth Lakes Town Council didn’t find that clarity particularly appealing.
Council voted unanimously to reject an airport terminal financing deal crafted by Finance Director Brad Koehn, largely because one could get better terms from a Vegas bookie.
Instead, Council will carry the note out of general fund cash reserves until it can qualify for Federal Aviation Administration (FAA) grants to pay itself back.
As Koehn explained in the Council agenda bill, “Staff and the Town financial advisor began the financing process in June 2008, but the nationwide credit crisis and the Town’s outstanding Hot Creek judgement created a challenging financing environment. These issues ‘closed the door’ to a long-term financing option and as a result, the Town pursued a short-term note … the note was paid in full on June 30, 2009. Upon payoff the Airport Enterprise fund borrowed the payoff funds from the General Fund until the Town could secure ‘rollover’ financing to replenish the General Fund.”
*Got that? Or do I need to draw a diagram?
On Wednesday, Koehn brought forward a long-term financing deal (the rollover financing) to replenish the General Fund.
He called it “The long-term financing package which we hope won’t end up long-term.”
Because of the Town’s credit rating (junk status), the best loan the Town could get was at 8.125%. In addition, there were $200,000 in associated closing costs.
The annual debt service worked out to $220,000/year.
Koehn said that once an airport reaches 10,000 passenger enplanements in a single calendar year (and the airport, with its expanded flight schedule, is expected to draw 20,000 passengers in 2010), the FAA provides a $1 million entitlement grant. Given the federal budget cycle, Mammoth wouldn’t see its first $1 million until October 2011 and wouldn’t be able to pay back the loan in its entirety until it received its second $1 million check from the FAA in October 2012.
Even if the loan could be paid off within a three-year time window, the Town would still be out approx. $750,000 in closing costs and interest.
This didn’t sit well with Mayor Neil McCarroll, who didn’t like the idea of borrowing such expensive dollars.
And for what? Koehn said financing the terminal debt would improve the Town’s cash flow position (translation: more money on hand to make the Finance Director appear more fiscally prudent). And besides, that money restored to the General Fund could now be invested! (albeit in a public agency fund which is currently earning about 1% interest).
Hmm. Factoring in closing costs, would you want to spend 37% over three years on some financing deal because you might make a 3% return on an extra $2 million you’ve got in the bank?
Even Council didn’t like that mathematical equation, rejecting the long-term financing deal 5-0.

Council funds Track Club

Town Council voted to fund another 4-year sponsorship agreement with the Mammoth Track Club (Running USA).
The expiring deal had the Town funding Running USA to the tune of $100,000 over four years beginning in FY 2004/05.
Running USA’s request for the next four years was $220,000.
Though the Tourism and Recreation Commission was in unanimous agreement to grant the request, Town Staff recommended a funding level of $42,000/year given the current budget situation.
Tourism and Recreation Director Danna Stroud estimated that the media exposure generated by Meb Keflezighi’s recent triumph in the New York City marathon was worth $1 million alone.
Council voted unanimously to fund Running USA at its $220,000 request.

DIF lowered

In culmination of an eight-month process, The Town decided to lower its development impact fee (DIF) schedule.
The new fees will be approximately half of what they were before the current recession.
In addition, housing mitigation requirements were also scaled back by approximately 50%
The fee schedule was determined with the aid of consultant Walter Keiser.
In his summary report, Keiser found that the Town’s “aggregate fees including DIF, housing mitigation and other agency fees are comparatively high and will remain a deterrent to desired development.”