Schmier v. City of Berkeley
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In 1996, Schmier converted Berkley apartment units into condominiums. Berkeley ordinances then required that he record Affordable Housing Fee liens based on a formula. Schmier's lien agreements that provided, “Execution of this document shall not prejudice the right of the undersigned to challenge the validity of the Affordable Housing Fee. In the event that the Affordable Housing Fee is ... rescinded … this lien shall be void.” Schmier alleged that in 2008, Berkeley rescinded that ordinance. The new section includes a different formula. In 2019, Schmier advised Berkeley of the sale of the property. Berkeley requested an affordable housing fee of $147,202.66, calculated under the rescinded ordinance. Under the current ordinance, the fee would have been less than half of what was requested.
The court of appeal reversed the dismissal of the suit, as barred by a 90-day statute of limitations (Subdivision Map Act, Gov. Code, 66499.37). Schmier did not challenge the requirement that he execute a lien agreement, nor did he challenge the adoption of the former ordinance, its alleged recission, or adoption of a new section; Schmier’s complaint is not subject to the Map Act’s limitations period. Even assuming the 90-day period applied, it could not have begun to run until Berkeley rejected Schmier’s assertion that the lien agreement was no longer operative when the city rescinded the former ordinance. The language of the lien agreements is ambiguous, rendering both asserted constructions arguably reasonable.
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