HomeMy WebLinkAboutRice Enterprises; 1993-08-11;%' '3
AGAINST THE IMPOSITION OF CONDITIONS AGREEMENT FOR WAIVER OF PROHIBITION
UPON THE APPROVAL OF AN EXTENSION OF
* A TENTATIVE SUBDIVISION U?iP
This Agreement is made this 11th day of AUGUST I
1993 between the City of Carlsbad, a municipal corporation,
(hereinafter called qlCity") and Rice Enterprises, a California
Limited Partnership (hereinafter called IfSubdivider").
1. Government Code Section 66452.6(e) and Carlsbad Municipal Code
Sections 20.12.110 and 20.24.180 permit Subdivider sto request
and City to approve, conditionally approve or deny extensions
of time for the expiration of tentative maps or tentative
parcel maps (hereicafter collectively called "TentatFve
Subdivision Maps") .
2. El Patio v. Permanent Rent Control Board, 110 Cal. App. 3d
915, modlfied 111 Cal. App. 3d 788 (1980) indicates that the
Government Code (Subdivision Map Act) may not authorize City
to impose new conditions; i.e., those which were not imposed
on the tentative subdivision ?nap, 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
Section 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
1
I/
7/3/91
4.
5.
6.
7.
8.
by the tentative subdivision map shall be filed without first
processing a new tentative subdivision map.
Subdivider has requested City to approve the extension of time
for Tentative Subdivision Map No. CT 85-10 which was initially
approved on July 8 1986.
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.
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.
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 Clerk to that effect.
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 Nap with the payment of said fees.
9.
10
11.
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.
City arguably may not, without the voluntary consent of
Subdivider, 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.
Without such voluntary consent of Subdivider tothe imposition
of conditions City may be required to deny Subdivider's
request for extension to ensure that the public headth, safety
and welfare, or the environment are protected 04 that the
General Plan or Municipal Code requirements are Latisfied.
Approval of the extension of said Tentative Subdibision Map
without assurances that the fees mentioned above wodld be paid
for said subdivision would be contrary to the best! interests
of the City and would threaten the City's ability Lo protect
and provide for the public health, safety and welfare.
Subdivider agrees that it is in the best interest o~f City and
Subdivider that City be able to protect the public health,
safety and welfare, or the environment or ensure cbnsistency
with the General Plan or Municipal Code by the impbsition of
conditions on the extension of tentative subdivisibn 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
subdivision 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 reviewed 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 its sole discretion deem appropriate.
2. Subdivider knowingly and voluntarily waives any and all
right to the unconditioned extension of Tentative Subdivision Map
NO. CT 85-10.
3. Subdivider knowing and voluntarily consents to the
imposition of a condition of approval of the extension of Tentative
Subdivision Map No. CT 85-10 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 and 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 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 th,e 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 CITY OF CARISBAD. a municinal
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
Notarial acknowledgement of execution by subflivider must be attached. AMix corporate seal if appropriate.
6
CQ". a935369 capacity(icn). and that by his/-
signature@) on the instrument tb ~~JOIIM.
ortheemityuponbehatfofwtkhIhepnJOII(4 ~
acted, executed the instrument. <
Wnnessmyhandando((kialseal. A