The URL can be used to link to this page

Home My WebLink AboutBuie Corporation; 1987-07-10;AGREEMENT FOR WAIVER OF PROHIBITION AGAINST THE IMPOSITION OF CONDITIONS UPON THE APPROVAL OF AN EXTENSION OF A TENTATIVE SUBDIVISION MAP. This Agreement is made this /tf day of ^ , 1987 /X^v between the City of Carlsbad, a municipal corporation, (hereinafter called "City") and Rn,e Corpnration _, a California fwporatinn , (hereinafter called "Subdivider"). RECITALS 1. Government Code Section 66452.6(e) and Carlsbad Municipal Code Sections 20.12.110 and 10.24.180 permit Subdiyiders to request and City to approve, conditionally approve or deny extensions of time for the expiration of tentative maps or tentative parcel maps (hereinafter collectively .called "Tentative Subdivision Maps"). 2. El Patio v. Permanent Rent Control Board, 110 Cal. App. 3d 915, modified 111 Cal. App. 3d 788 (1980) indicates that the Goverment Code (Subdivision Map Act) may not authorize City to impose new conditions; i.e., those which were not imposed on the tentative subdivision map, upon the extension of time for expiration of a tentative subdivision map, but also held that the City does have discretion to approve or deny such extensions. 3. Government Code Section 66452.6(d) and Carlsbad Municipal Code EXHIBIT "C" 'W '""** - 2 - Sections 20.12.100(d) and 20.24.160 provide that expiration of a tentative subdivision map shall terminate all proceedings and that no final map or parcel map for any property covered by the tentative subdivision map shall be filed without first processing a new tentative subdivision map. 4. Subdivider has requested City to approve the extension of time for Tentative Subdivision Map No. 82-12 which was initially approved on September 7. 1982 • 5. Since the approval of said Tentative Subdivision Map, City has conducted studies which show that the construction of certain drainage facilities or thoroughfares are essential to protect and provide for the health, welfare, and safety of all of the present and future residents of City, including those who will reside in said subdivision. 6. Since the approval of said Tentative Subdivision Map, City has adopted a major drainage fee or major thoroughfare fee or both to provide the funds to construct the necessary drainage facilities and thoroughfares. 7. Since the approval of the Tentative Subdivision Map, City has conducted studies which show the need to establish a public facilities fee in order to provide for public facilities to protect the public health, safety and welfare of the present and future residents of City and to ensure that public facilities to serve the development will be available concurrent with need as required by City's General Plan. Developer agrees to pay said fees and has executed a contract which is on file with the City - 3 - Clerk to that effect. 8. Because the original approval of said Tentative Subdivision Map occurred prior to the adoption of the aforementioned fees, City did not condition the approval of said Tentative Subdivision Map with the payment of said fees. 9. Since the initial approval of said Tentative Subdivision Map there may have been changed circumstances which require additional conditions of approval on the extension of the Tentative Subdivision Map to protect the public health, safety and welfare, to mitigate affects on the environment or to ensure consistency of the extended map with the City's General Plan and Municipal Code. 10. City arguably may not, without the voluntary consent of Subdivide!*, impose upon the extension of said Tentative Subdivision Map conditions requiring payment of the fees mentioned above or conditions necessary to protect the public health, safety or welfare, or the environment or ensure consistency with the General Plan or Municipal Code. 11. Without such voluntary consent of Subdivider to the imposition of conditions City may be required to deny Subdivider's request for extension to ensure that the public health, safety and welfare, or the environment are protected or that the General Plan or Municipal Code requirements are satisfied. Approval of the extension of said Tentative Subdivision Map without assurances that the fees mentioned above would be paid for said subdivision would be contrary to the best interests of the City and would - 4 - threaten the City's ability to protect and provide for the public health, safety and welfare. Subdivider agrees that it is in the best interest of City and Subdivider that City be able to protect the public health, safety and welfare, or the environment or ensure consistency with the General Plan or Municipal Code by the imposition of conditions on the extension of tentative subdivision maps. 12. Subdivider realizes that denial of the requested extension could result in the expiration of the tentative subdivision map. Subdivider would then be required to incur substantial costs and time delays in processing a new tentative subdivision map approval of which would be subject to new conditions necessary to ensure consistency of the tentative subidivison map with the Subdivision Map Act, the California Environmental Quality Act, Titles 19, 20 and 21 of the Carlsbad Municipal Code, the City's General Plan and to protect the public health, safety and welfare. 13. City has- revie-wed the Subdivider's request for an extension of time for said tentative subdivision map and finds that granting the request subject to certain conditions will not be contrary to the public health, safety and welfare. NOW, THEREFORE, in consideration of the recitals and of the mutual covenants set forth herein-, City and Subdivider agree as follows: 1. City agrees to extend Subdivider's Tentative Subdivision Map for one year subject to whatever new or revised conditions the City in - 5 - its sole discretion deems appropriate. 2. Subdivider knowingly and voluntarily waives any and all rights to the unconditioned extension of Tentative Subdivision Map No. 82-12 • 3. Subdivider knowingly and voluntarily consents to the imposition of a condition of approval of the extension of Tentative Subdivision Map No. 82-12 which requires payment of any fees which may be in effect at the time of approval of the final subdivision map for said subdivision or any portion thereof and to the following additional conditions: a. This approval is expressly conditioned on the payment by the applicant of a public facilities fee as required by City Council Policy No. 17, issued arid effective on April 22, 1986, on file with the City Clerk and incorporated herein by reference, and according to the agreement executed by the applicant for payment of said fee. If said fee is not paid as promised, this application will not be consistent with the General Plan and the project cannot proceed and this approval shall be void. b. This approval is expressly conditioned upon the subdivider's compliance with any growth management system in effect at the time the final map is filed. Subdivider shall also pay or agree to pay (as decided by the City Council) all fees- identified by the City Council as necessary to pay for the cost of providing facilities and improvements which are imposed pursuant to the growth management system or any - 6 - other applicable laws. 4. The provisions of Carlsbad Municipal Code Section 20.12.110 and 20.24.180, as appropriate, shall govern extension of the map which is the subject of this agreement. 5. If this agreement is for an extension of a tentative subdivision map for a minor subdivision, the appeal of the City Engineer's approval, or conditional approval, of the extension by any party shall void this agreement unless the agreement is subsequently approved by the City Council. 6. Any action by Subdivider to challenge the legality of this agreement or any failure by Subdivider to pay the fees and comply with any other conditions applicable to the extension shall void the approval of such extension. The map shall not final and the development shall not proceed until a new tentative subdivision map has been approved. SUBDIVIDER BUIEJiaiPORA CITY OF CARLSBAD, a jnunic>pal corpotf MAYOR (Major^SubdivisionsT ACTING CITY ENGINEER (Minor Subdivisions) APPROVED AS TO FORM!ATTEST: VINCETn F. BION City Attorney Notorial acknowledgement of execution by subdivider must be attached. Affix corporate seal if appropriate. 06/86 CAT. NO. NN00737 TO 1945 CAI7-82) •(Corporation) STATE OF CALIFO COUNTY OF t wKu ssI } Tmc INSURANCE ANDTRUST AT1COR COMPANY ss. On said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the President .-and1 — — personally-known lu irn. ui - before me, the undersigned, a Notary Public in and for Htr jf satiafa tfee-pe«e rtett- the Corporation that executed the within instrument and acknowledged to me that such corporation executed the within instru- ment pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal. Signature _u (This area for official notarial seal)