BRENTWOOD -- Discovery Builders Inc. has filed a lawsuit against the city of Brentwood demanding that it refund affordable housing in-lieu fees that the developer said were paid under protest.

The Northern California homebuilder is affiliated with Seeno Homes, and it initiated the complaint in November, claiming that the city's demands for these fees in exchange for building permits were "unjustified, excessive and unlawful."

In the complaint, filed in Contra Costa County, Discovery alleges that the $342,569 in fees was paid under protest in September to develop a subdivision of about 240 single-family homes.

"The fees imposed by the city were not established as required by law, and have been established and imposed in violation of controlling state law and constitutional protections, and said fees may not properly be imposed against plaintiff's subdivision," court records filed on Discovery's behalf stated.

The city originally adopted its affordable housing policies in 2003. They require residential developers of market-rate housing to dedicate a percentage of homes for affordable housing programs or instead pay in-lieu fees.

David Lanferman, an attorney representing Discovery, refused to comment, and representatives from Discovery did not respond to requests to comment.

Representing Brentwood, attorney Tom Brown said the city has filed a motion to dismiss this case.


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"We moved to dismiss on grounds that the case is way late. The law says that any challenge had to be brought within a short time frame of the developer's subdivision map," Brown said last week.

According to Brown, these issues have been raised in several cities: Developers obtain building approvals and later challenge the conditions of development, which results in lawsuits.

"After we filed our motion to dismiss, Discovery asked to amend their complaint to add new allegations that he (Lanferman) thinks will allow him to overcome the city's arguments," Brown said. "We think the city's law is valid and should be upheld for many reasons."

The lawsuit is centered around a subdivision between Lone Tree Way and Grant Street that was being developed by Suncrest Homes before Discovery acquired it in 2008. In court records, the city alleges that Discovery immediately asked to modify the affordable housing agreement to delay the in-lieu fees payment until a majority of the subdivision was built.

The city further suggests in court documents that Discovery asked to defer payment of the fees again and build the subdivision's first phase. After the second amendment to the agreement, the city refused to waive the fees or allow the next phase of development through permits until they were paid. In September, Discovery paid the fees under protest, and the lawsuit was filed when the city refused to refund them.

Brown predicted it will be several months before a hearing is held.

"This challenge should have been brought up seven or eight years ago," he said.

Contact Paula King at 925-779-7174.