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Home My WebLink About1981-07-07; City Council; 6664; Conditions and fees: Tentative Map ExtensionsCITY OF CARLSBAD AGENDA BILL NO. > _ Initial: Dept . Hd DATE: _ July 7 r 1981 _ C. Atty. C. Mgr. DEPARTMENT; City Attorney _ Subject: IMPOSITION OF NEW CONDITIONS AND FEES ON TENTATIVE MAP EXTENSIONS Statement of the Matter A recent judicial decision requires the City to alter its procedure regarding extensions of tentative subdivision and parcel maps. The attached memorandum explains the problem and the Council's options. Fiscal Impact Failure to adopt a proper procedure for extensions could cost the City significant sums from lost public facilities fees and other needed improvements. Implementation of the agreement option outlined in the memorandum could involve some added cost to the City over our present procedures. Any increase in cost can be offset by fees. Exhibit Memorandum from City Attorney, dated June 19, 1981. Recommendation Chose the desired option and direct the City Attorney to prepare appropriate documents. NOTE: It would be beneficial to City if we could require subdivider to pay fees and install improvements as a condition of granting a time extension. •--•Tyv^ COUNCIL ACTION: 7-7-81 Council directed the Attorney to prepare documents per Option #3, which would give a developer an opportunity to sign a voluntary agreement and pay fees prior to Council's consideration of an extension. MEMORANDUM DATE: June 19, 1981 TO: Mayor and City Council FROM: City Attorney SUBJECT: IMPOSITION OF NEW CONDITIONS ON TENTATIVE MAP TIME EXTENSIONS The Carlsbad Municipal Code gives a developer eighteen months after the approval of a tentative map, or one year after the approval of a parcel map, to file the final map. If the developer cannot meet this time period he may request an extension of time. It is the City's practice for the Council (or the City Engineer for parcel maps) in approving an extension to add new conditions where necessary to meet changed circumstances or to insure that the project continues to be consistent with the general plan and zoning and will be beneficial to, rather than a burden, on the community. The public facilities fee is a prime example of this type of condition. Adding a requirement that the developer pay the public facilities fee to a map extension is the only way we have of collecting for a number of projects which were approved prior to the Council's adoption of the fee require- ment. Unfortunately, the practice of imposing new conditions on tenta- tive map extensions may no longer be legal in California. El Patio, et al. v. Permanent Rent Control Board of the City of Santa Monica,110 Cal. App.3d 915, modifiedTT1Cal. App. 3d 788, December 17, 1980. The court in El Patio recognized that the consideration of a time extension application is discre- tionary. However, the court concluded that this discretion did not extend to the imposition of new conditions. The court stated, "However, Section 66452.6 expressly permits an extension only as to 'time'. There is no provision which suggests that the legislative body or advisory body is to reconsider its findings under Section 66474 when granting an extension of time and indeed, the requirements for notice upon approval of a tentative map... would make such a result unworkable." (110 Cal. App. 3d at 928.) Mayor and City Council -2- June 19, 1981 The court quoted portions of the Supreme Court's opinion in Youngblood v. Board of Supervisors, 22 Cal. 3d 644 (1978) to the effect that, because a developer expends substantial sums and constructs improvements consistent with the particular subdi- vision upon tentative map approval, it is only fair to require the governing body to exercise its discretion whether and upon what conditions to approve the subdivision at the tentative map approval stage. The court, therefore, concluded that no new conditions may be imposed after tentative map approval. The purpose of this memorandum is to outline for the Council the various options available in response to El Patio. Choosing between these options involves some policy considerations. Therefore, we are bringing the matter to Council for direction. The first option for Council would be to establish a policy of approving extensions of tentative subdivision and parcel maps without the imposition of new conditions. This option would preclude the Council from imposing such new conditions as requir- ing public facilities fees. In addition, the Council would not be able to add any new conditions necessary to insure compliance with the general plan or zoning even if the general plan or zone code was changed. In short, the extended tentative map would be idential to the old tentative map with all the old conditions still in force. The second option for the Council would be to adopt a policy of denying all extensions where a new condition was required. (Extensions that continue to meet current standards can be approved without reqard to El Patio). In view of El Patio, it is our opinion that denial is the only sure way of imposing addi- tional conditions necessary to insure continued consistency of the subdivision with the general plan and to insure that new fees, such as the public facilities fee, can be collected. Denial of an extension requires the developer to file a new tentative map. The filing of a new map means the developer must go through the whole process all over again, including payment of all processing fees. However, it would allow the imposition on the project of all necessary conditions. Strictly from the City's point of view this is the best option—assuming the Council wants to enforce the condition and collect the fees. This advantage has to be weighed against the added cost and delays borne by a developer under this option. As an attorney, it seems to me to be bad law that would make a city indirectly accomplish its objective at an unnecessary cost to the developer rather than directly attaching the conditions to the extension. Mayor and City Council -3- June 19, 1981 A third option would give the developer an opportunity to sign a voluntary agreement to comply with the new conditions and pay the fee prior to the Council's consideration of the extension. The city would gain its objective while the developer would avoid the cost and delays of processing a new map (which would subject him to the conditions and fees in any case). This option does involve some additional burdens on staff. In addition, the validity of such an agreement is uncertain. The developer could argue after the fact that the agreement was entered into under duress and is, therefore, unenforceable. On the other hand, the city's position is that the extension of the tentative map is a privilege and not a right and that the free acquiescence by the developer to a condition to avoid a denial of the project has been approved in the zoning context. J-Marion Company v. County of Sacramento, 76Cal. App. 3d 517, 142 Cal. Rptr. 723 (1978). It is our understanding that the City Attorney's office in Oceanside may be recommending the agreement process to their Council as a means of dealing with the El Patio case. In summary, if no new conditions or fees are necessary, extensions may be processed and approved. If new conditions or fees are desired, the legally best way to do that is to deny the extension and then impose them on the new map. However, this imposes significant burdens of cost and delay on the developer. While the agreement option is untested and subjects the city to some risk, it may be a good compromise, at least until the El Patio case is clarified by subsequent litigation or overruled by corrective legislation. If the Council chooses that option, we will return with the necessary agreement and the implementing resolutions. VINCENT F. BIONDO, JR. City Attorney VFB/mla