HomeMy WebLinkAbout1985-05-07; City Council; 8171; Revision to Titles 19-21 of Municipal Codeb7 a - -
CII OF CARLSBAD - AGEND. .&ILL
TITLE: REVISION TO TITLES 19, 20 & 21
OF THE CARLSBAD IlUNICIPAL CODE
TO IMPLEMENT RECENT CHANGES IN 5/7/85 IITG.
DEPT. STATE LAW
DEPT. HD.
CITY AlNe - CITY MOR.
RECOMMENDED ACTION:
Introduce Ordinance No. 9760
ITEM EXPLANATION
Ordinance No. 7760 implements amendments made to the state
law during the 1984 legislative session. The changes are
explained in the attached memorandum. In addition, certain
sections of the subdivision ordinance have been cleaned up to eliminate inconsistencies or outdated cross-references.
The ordinance has been reviewed by the Land Use Planning
Manager and the City Engineer. They concur with the recom- mendations.
FISCAL IMPACT
Some provisions may result in some increased processing costs which may be recovered through increased fees. Other provisions were intended by the legislature to be time saving which may result in a more expeditious development
process.
EXHIBITS
Memorandum to Mayor and City Council dated April 24, 1985
Ordinance No. 976 0
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April 24, 1985
TO : Mayor and City Council
FROM : City Attorney
RECENT LEGISLATION - AMENDMENT TO TITLES 19, 20 AND 21 OF THE
CARLSBAD MUNICIPAL CODE
It's time for annual update of the environmental review, subdivision and zoning chapters of the Carlsbad Municipal Code.
Accompanying this memorandum is a draft ordinance which amends the provisions of Titles 19, 20 and 21 of the Carlsbad Municipal Code to implement recent state legislation. The proposals have been reviewed and approved by the Land Use Planning Manager and
the City Engineer.
This memorandum will summarize recent changes to CEQA, the Subdivision Map Act and the State Planning Act which you should know about. Some of the provisions will be implemented by the proposed ordinance, others need no City action to be effective. The sections which require code changes are noted with an asterisk.
CEQA
Carlsbad has adopted an environmental protection ordinance which is basically procedural in nature. The code incorporates state law by reference. Therefore, substantive changes in state law are self executing. When procedural amendments are necessary to
implement the state law those changes have been proposed. Otherwise, the amendments to state law are simply discussed for Council's information.
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Section 21005: This section was added to CEQA and states that it is the policy of the state that non-compliance with CEQA may
constitute an abuse of discretion regardless of whether a different outcome would result if there was no non-compliance. Of course there is no presumption that error is prejudicial to a particular party. This section eliminates the "even if we did comply, it wouldn't have made any difference because the result would have been the same" defense to CEQA challenges.
Section 21080.19: Restriping streets or highways to relieve traffic congestion are excepted from CEQA by this section. This
exception is self executing and requires no City action.
Section 21081.5: This section requires that findings of
mitigation, other agency responsibility or overriding considerations must be based on substantial evidence in the record. This new requirement should not change the way we do
things in Carlsbad.
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*Section 21083.3: Under the recent amendment to this section the
environmental review of any subdivision map or other project consistent with existing zoning, a community development plan, or
the general plan is limited to the effects on the environment
peculiar to the parcel in question which were not addressed in
the previous environmental impact report prepared for the zone
amendment, community plan, or general plan amendment. This section only applies if an environmental impact report was previously prepared. This section does not effect any
requirement to analyze potentially significant off-site impacts and cumulative impacts not discussed in the environmental impact report on the general plan. The law further provides that persons who did not participate in the public hearing held to review the decisions made pursuant to this section are barred from bringing suit to challenge it. For this reason we have
amended this section 19.04.060(a)(l) and (e)(l) to require a public hearing on every project which is reviewed pursuant to section 21083.3. This amendment is taken care of by Section 1 and Section 2 of the attached ordinance.
Section 21082.2: This section was added to clarify some court
decisions about when an environmental impact report should be
prepared for a project. Under this section the lead agency must determine whether a project may have a significant effect on the
environment based on substantial evidence in the record. The mere fact that a public controversy exists over the environmental effects of a project shall not require preparation of an
environmental impact report if there is no substantial evidence before the agency that the project may have a significant effect. Further, statements in an environmental impact report or comments
on a report shall not be deemed determinative of whether a project may have a significant effect. The matter must still be decided by the agency based on substantial evidence.
Section 21092.1 : According to this section, when new information is added to an environmental impact report after the notice of
preparation has been prepared and early consultation has occurred but prior to certification, the public agency must renotify and reconsult with responsible agencies on the project. It would appear that this section only applies before the public hearing which is required on an environmental impact report by the
Carlsbad Municipal Code.
Section 21094: This section adds new provisions concerning tiering of an environmental impact report. Basically it provides
that where a prior environmental impact report has been prepared for a program, plan, policy or ordinance later projects that meet
the requirements of section 21094 may be reviewed by using a
tiered environmental impact report. Tiering only applies to later projects which are consistent with the previously approved program, plan, policy or ordinance; are consistent with the
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applicable land use plan and zoning; and would not otherwise require the preparation of the subsequent environmental impact
report under section 21166. In order to determine whether a project fits into section 21094 an initial study is required to assist the city in making the determinations and findings required by this section and the initial study shall analyze whether the project may cause significant effects on the environment that were not examined in the prior environmental impact report.
Section 21 153: The provisions concerning early consultation with
responsible agencies are amended by this section. A requirement has been added that when an applicant requests early consultation
within 30 days of the determination to prepare an environmental
impact report a lead agency must provide early consultation as specified in the section. The applicant may identify those persons which the applicant believes would be concerned with the environmental effects of the project. This section also limits a responsible agency or other public entity to making substantive comments regarding those activities involved in a project which are within the area of expertise of the agency or which are
required to be carried out or approved by the agency. The comments must be supported by specific documentation,
"Section 21 152: This section amends the provisions concerning a
notice of determination. The notice of determination must now
be filed within five working days with the county clerk. This new procedure is implemented by sections 3 and 4 of the proposed ordinance. After the county clerk posts the notice of determination for 30 days it will be returned to the city. The notice must be kept by the city for at least nine months. The proposed ordinance requires the land use planning manager or the
responsible department head to simply put the notice of determination in the permanent file for the project .
Section 21080.2: The time to determine whether an environmental impact report or negative declaration is required has been reduced from 45 to 30 days by this section. However, the section permits the period to be extended for an additional 15
days upon the consent of the city and the applicant.
Section 21166.1: This section has been added to declare that a decision to prepare an environmental impact report within a geographic area or for a group of projects does not mean that an
environmental document which has been prepared for an individual
project within the area or group is inadequate.
Section 21167.6: Section 21167.6 establishes new procedures regarding challenges to actions taken under CEQA. Briefly those procedures are as follows: When a lawsuit challenging an action under CEQA is filed the person filing the action must file a
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request with the city to prepare a record of the proceedings regarding the action. Both the request to prepare the record and petition must be served on the city not later than ten days after the lawsuit was filed with the court. Once the request and the petition have been filed with the city the city is required to prepare and certify the record within 60 days. The person bringing the lawsuit may choose to prepare the record or all the parties may agree on an alternative method. In either case the
record is subject to certification of accuracy by the City. Cost
payment will be determined by law or rules of Court. The time limit for the preparation of the record may be extended only by a
stipulation of all the parties to the lawsuit or upon an order of
the court. There are also special rules concerning appeals of trial court decisions in CEQA actions. There are special time limits for the preparation of the clerk's transcript on appeal.
There are special rules for extensions of time to file briefs on appeal. There are special rules for the hearings by the
appellate court. All of these procedures are intended to
expedite CEQA challenges in order to lessen the chilling effect that the challenges have on development.
Section 21167.8: This section also adds special requirements for challenges to decisions under CEQA. Within 20 days after a lawsuit-has been served on the city the city must-file a notice
with the court of the time and place for a settlement meeting. The settlement meeting must occur within 45 days of service of the lawsuit on the City. Notice of this meeting is served by
mail on the attorney for the party or, if the attorney for the party is not known, on the party. The person bringing the
lawsuit must then send a presettlement statement to all the
parties not less than five days before the meeting. The statement must include a concise description of the case and a discussion of the anticipated issues. The attorneys must confer
with their clients in advance regarding the statement and must be prepared to negotiate a settlement of the action when reasonably
possible. The parties must meet in good faith in an attempt to
settle the action. The discussions are supposed to be comprehensive and focus on the legal issues. At the conclusion
of the settlement meeting or meetings all the parties must prepare a joint settlement statement which will be signed and filed with the court. The statement must include the legal and factual contentions of all the parties, the contentions which
were settled and a statement of the settlement, the efforts made
regarding unsettled issues and a list of participants in the settlement meetings. Failure of a party to participate in good
faith in these settlement negotiations may result in sanctions being imposed by the court. If the person who brings the lawsuit fails to participate without good cause the suit may be
dismissed. In addition to this presettlement meeting the court may, or at the request of a party must, schedule a settlement conference before a judge.
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Section 21168.9: This section has been added to remedies available to a court if a court finds a
CEQA. If a violation is found the court must do
specify the violation of one or more of the following: mandate that the determination, finding or
decision be voided by the agency; mandate that the agency and the real party in interest (developer) stop all activities that could
result in a change in the environment until the city does whatever is necessary to comply with CEQA; mandate specific actions be the agency necessary to comply with CEQA. The orders of the court must be made in a particular manner and the court must retain jurisdiction over the matter to insure compliance.
This section does not authorize the court to tell the city to exercise its discretion in a particular way.
Section 21 177: Section 21177 basically codifies the exhaustion of administrative remedies doctrine. It provides that a lawsuit
challenging an action cannot be maintained unless an objection was presented to the decision making body either orally or in
writing and no person may bring an action unless an objection was
presented orally or in writing, This section does not apply if
there is no public hearing or other opportunity for the public to raise objections or when the agency failed to give notice that an
action was being considered. The City's standard public hearing notice form has been amended to implement provisions similar to
this in the Subdivision Map Act and the Planning Act. Because our Notice of Preparation specifies that comments on an environmental document may be presented it would appear we are pretty well covered on the provisions of this section.
Subdivision Map Act Two significant changes to the Map Act which were made during
1984 are not discussed in this memorandum. The entire procedure for merger of parcels was modified. The Council has previously amended the code to reflect those modifcations. Significant changes concerning a new type of tentative map called a "vesting tentative map" were also added. The provisions for vesting
tentative maps do not become effective until January 1, 1986.
The League of California Cities is preparing a recommendation for
implementation of the provisions regarding vesting tentative
maps. Once we have received the League publication we will
prepare a full report, recommendation and proposed ordinance for your consideration. Sections 7, 10 and 12 of the proposed
ordinance clean up certain sections of Title 20 and do not
implement any new change in state law. The sections are needed
to eliminate cross reference inconsistencies, and to establish the appropriate processing fees for an existing procedure.
*Section 66418 and Section 66419: These sections, which define
design and improvement for the purposes of the Map Act, have been -. amended. The-old law said, among other things, that design and improvement were things "necessary and convenient " to assure
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consistency with the general or applicable specific plans. The new law says that design or improvement requirements may only be necessary and may not be convenient to the implementation of the general or specific plans. Section 5 of the attached ordinance
implements Section 66419 to delete the city's "or convenient"
language and also to add the local coastal plan or applicable master plans to the list of planning documents implemented by a
subdivision map. Section 66418 did not require any
implementation in our ordinance.
"Section 66412: This section has been amended to add an exemption from the Map Act for certain wind powered electrical generating facilities. This amendment is implemented by Section
6 of the proposed ordinance.
*Section 66451.3: Section 66451.3 now provides that notice of public hearings pursuant to the Subdivision Map Act must be given according to the new notice provisions contained in the revised State Planning Act. The City Council has recently considered an ordinance to modify the City's noticing requirements to be consistent with those established by the new law.
Section 66451.6: This section has been added to provide that no
fee may be charged as a condition of approval of a tentative,
final or parcel map for a subdivision which consists of a conversion of a mobile home park to a condominium or stock cooperative except certain regulatory fees charged for the issuance of a permit and those fees specifically authorized for the processing of the map itself. Apparently some cities were charging an extra fee to discourage the conversion of mobile home
parks to condominiums. Carlsbad doesn't do that and no code amendment is needed.
*Section 66452.6: This section has been modified slightly to amend the provisions which stop the clock running on the expiration of a tentative map during litigation on that map. The amendments are mostly technical in nature. However, we did feel it necessary to amend our code to be consistent with the state law and therefore we added Section 8 to the proposed ordinance. Our old ordinance contained a provision requiring filing of an application for the stay within ten days after service of the action on the city. We could see no reason to delete that provision.
Section 66457: Section 66457 has been modified slightly to provide that a final, or parcel map whenever authorized, conforming to a tentative map may be filed with the legislative body for approval after all the required certificates have been obtained. The old law did not include parcel maps. The new law also specifies that the date a map is deemed filed with a legislative body is the date when the city clerk receives it.
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This section makes technical changes to the Map Act which do not
require any local implementation.
*Section 66463.5: This section has been amended to make the
provisions for stopping the clock on the expiration of a tentative parcel map the same as for a tentative map. This section is implemented by Section 9 of the proposed ordinance.
*Section 66474.4: Section 66474.4 imposes a state mandated program to require denial of tentative or parcel maps if the map would create parcels which are too small to sustain agricultural use. This section applies only to certain Williamson Act land.
A parcel is presumed to be too small to sustain agricultural use if it is less than ten acres in size in the case of prime agricultural land or less than 40 acres in size in the case of
nonprime agricultural land. A city may still approve a subdivision with parcels smaller than those specified in this section if it is found that the parcels can nevertheless sustain agricultural use or are jointly managed. This section is
implemented by Sections 8 and 11 of the proposed ordinance.
Section 66475.4: This section establishes a comprehensive new program requiring compensation to subdividers for excess dedications. A dedication requirement imposed as a condition of approval of a tentative map is invalid to the extent that it is determined by the court to be excessive. Excessive means it is
not reasonably necessary to meet public needs arising as a result
of the subdivision. An excessive dedication requirement is not invalid if at the time of the imposition of the condition the city provides a means for determining the amount of compensation for that portion of the excessive dedication requirement and the
manner of payment for that requirement. The dedication requirement claimed to be excessive in whole or in part may be reviewed by a writ of administrative mandate.
In order to bring an action the subdivider must have protested the dedication or portion of the dedication claimed to be excessive. The protest must have been made at the public hearings on the tentative map. If the court does decide that the dedication requirement is excessive in whole or in part the court
shall order the city to elect, within 45 days of the date of the court's order, to either amend the tentative map or redesign the subdivision, pay just compensation for the excess dedication, or amend the map to delete or modify the dedication requirement. If the city elects to pay compensation the amount of compensation shall be determined according to the provisions of the State Eminent Domain Law. If the city decides to require redesign of the map or to delete or modify the dedication requirement the court shall then order the action to be taken within 120 days or
upon application of either party some longer period. The court must retain jurisdiction to insure that the city follows through
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with the redesign or modification. If the city fails to make an election within 45 days of the court's initial order it will be
conclusively presumed to have elected to pay compensation.
This section provides that its provisions do not apply to any
mitigation measures imposed pursuant to CEQA to mitigate adverse
environmental impacts identified in the environmental impact report. CEQA specifically provides that a city may use its discretionary powers provided by any other law to mitigate the significant impacts subject to express or implied limitations on the power granted by the other law. This CEQA exemption probably means that a dedication requirement which the entity can show is necessary to mitigate an adverse environmental impact will also
be reasonably necessary to meet public needs arising as a result of the subdivision and, therefore, won't be excessive.
The Land Use Planning Manager on the recommendation of this off ice, has already added as standard condition for development approvals to implement this new law; no code amendment is required.
Section 66477.5: This section has been amended to extend until
1987 the authorization to use interest earned on accumulated park in lieu fees for maintenance of existing parks within the
city.
Section 66479: Section 66479 has been amended to provide that a local ordinance requirement for park, recreational facility, fire station, library, other public use reservations may be based on
policies or standards for the specified uses in any element of the general plan or in an adopted specific plan. Before the law required certain specific elements of the general plan. Those specific references have been deleted. This section does not require a change to our ordinance.
*Section 66499.34: Under existing law a certificate of compliance must be issued for any real property which has been approved for development pursuant to this section. This section has been amended to state that real property which has been approved for development includes "the issuance of a permit or grant of approval for development of real property, or with respect to improvements that have been completed prior to the time a permit or grant of approval for development was required by local
ordinance in effect at the time of the improvement or with
respect to improvements that have been completed in reliance on a grant of approval for development.'' In interpreting the new language it is important to recall that improvements has a special meaning in the context of the Subdivision Map Act. The new language may mean that a certificate of compliance will have to be granted not only for parcels which have been authorized for development under section 66499.34 by means of the issuance of a
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permit or grant of approval for development, but also for parcels
where streets and public utilities have been installed prior to
the time that a local ordinance required a development permit or approval or where improvements have been installed in reliance on
a prior development permit or approval even though that permit or
approval has lapsed or is no longer valid. The general rule is
that a city can't issue a permit for development of any real
property which has been illegally subdivided or was the result of an illegal subdivision if it finds that development is contrary to the public health or safety. The authority to deny a permit
applies regardless of whether the current owner knew of the
illegal subdivision. If the city decides to permit to grant approval for development of illegally subdivided property it may
impose only those conditions that would have been applicable to the subdivision of the property at the time the applicant acquired his or her ownership interest unless the applicant was
the owner who created the illegal subdivision and still owns one or more of the illegally created parcels in which case the city
may impose current subdivision regulations. These provisions tie in with the certificate of compliance provisions of section
66499.35. Any owner of property may request that the city determine whether ,or not the property was legally subdivided. If the property was legally subdivided then the city must issue a
certificate of compliance. If the property was not legally
subdivided the city may issue a notice of violation or a conditional certificate of compliance. A conditional certificate of compliance may impose only those conditions which would have been applicable at the time the applicant acquired his or her interest in the property unless the applicant was the owner at
the time the illegal subdivision was created. The conditional
certificate of compliance provides notice that implementation of the conditions will be required prior to the subsequent issuance of a permit or other grant of approval for development of the property. A certificate of compliance must be issued for any real property which has been approved for development pursuant to section 66499.34.
The law concerning certificates of compliance and violations is confusing. The recent amendments to the section add to the confusion. Sections 13 and 14 of the proposed ordinance attempts to restate the rules in a somewhat less confusing manner by amending section 20.48.030 and 20.48.040 of the Municipal Code.
Section 66499.36: This section amends the provisions for notice of violation to require that in addition to everything else the
notice must contain a description of the violation and an explanation as to why the subject parcel is not lawful under the
provisions of subsections (a) and (b) of section 66412.6. Section 66412.6 has been implemented in our code by section
20.48.090 and creates a presumption of lawful creation for
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certain parcels created prior to March 4, 1972. Because Carlsbad has had an ordinance regulating both major and minor subdivisions since the late 1950's the presumption primarily applies to
illegally subdivided lots for which the city has not filed a
notice of violation and someone bought the parcel without knowledge of the illegal subdivision. Section 66499.36 does not require any amendment to the Carlsbad Municipal Code provided that the city engineer can remember to explain why section 20.48.090 of the municipal code does not apply to the property when describing the violation.
Both sections 66499.34 and 66499.36 impose a state mandated local
program. The city may file a claim with the State Board of Control for the reimbursement of staff costs in implementing these program. However, the bill provides for no appropriation
and states that no reimbursement is required.
Planning Act: ,The State Planning Act has been recodified. Primarily this recodification was accomplished by chapter 690 and chapter 1009. We do not intend to analyze each chapter in
great detail only to hit the highlights. Most of the amendments
do not require local action. Council has previously considered an ordinance to modify the City's procedures for noticing local planning hearings.
ChaDter 690: Seciion 65101: commissions or two or more city councils or board of supervisors, A city may now create one or more planning
may create a joint planning cokmission for all or prescpibed portions of their cities or counties. If more than one planning
commission is created the legislative body shall prescribe the issues, responsibilities or geographic jurisdiction assigned to each commission.
Section 65105: This section creates a new authorization for
planning agency personnel to enter upon any land to make
examinations and surveys provided that the entries, examinations and surveys do not interfere with the use of the land by those
persons lawfully entitled to possession thereof .
Chapter 1009 modifies the requirements for general plans and establishes new procedures and requirements for specific plans.
The scenic highways element has been deleted from the general plan and the remaining eight required elements have been consolidated into seven elements and the legal requirements for many of the general plan elements have been simplified. The procedures for adoption of amendments of general plans have been revised and the specific plan law has been amended to make it more usable. Chapter 1009 also consolidates all of the public hearing notice requirements into one chapter. The Council has
already implemented the new public hearing requirements.
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Section 65010, which was added by Chapter 1009, provides that the formal rules of evidence or procedure don't apply to any planning actions except to the extent that a city provides by ordinance, resolution or rule. Further, the law now provides that no action, inaction or recommendation by a city or any of its planning agencies or officials shall be held invalid or set aside on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect, or
omission unless the court finds that the error was prejudicial, that the parties complaining of the error suffered substantial injuries, and that a different result would have been probable if
the error had not occurred. This is largely a restatement of existing law.
Chapter 1009 has amended some of the provisions concerning the housing element. The primary change is in the test the court applies when determining whether a housing element meets the provisions of law. In the old law the test is whether the element is in reasonable compliance with the state provisions. Section 65587 has amended the test to one of substantial
compliance of the requirements imposed by law.
Other chapters of the 1984 statutes also amend the Planning Act.
The following is a list of some of the sections which have been
added or amended.
*Section 65943: This section has been amended to substantially revise the procedures for submitting applications and determining whether those applications are complete. This section is implemented by sections 15, 16 and 17 of the proposed ordinance which amends section 21.54.010 of the Carlsbad Municipal Code and establishes new requirements for the determination of whether an
application for a planning project is complete. Deadlines are set for determining whether or not an application is complete and
for submission of new information in response to such a
determination. Under the new law an applicant who is dissatisfied with the land use planning manager's second determination that an application is not complete may appeal the
decision to the planning commission. The law provides that failure of the cities to meet the deadline causes the application to be deemed complete and the failure of the applicant to meet any of the deadlines shall be deemed to constitute withdraw1 of
the application.
Section 65009: Section 65009 has been amended to provide that when public hearing has been held on a project, subsequent
litigation shall be limited to those issues raised in the public
hearing or in written correspondence delivered to the public agency prior to or at the public hearing unless the court makes certain findings. This new law applies only if the public notice states "if you challenge the (nature of the proposed action) in
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court, you may be limited to raising only those issues you or
someone else raised at the public hearing described in this notice, or in written correspondence delivered to the (public entity conducting the hearing) at, or prior to, the public hearing." The City's standard notices have been modified to contain this language.
Section 65589.6: This section has been added to provide when a lawsuit is brought to challenge the validity of a city's decision to disapprove a project or approve a project on the condition
that it be developed at a lower density pursuant to section
65589.5 the city shall bear the burden of proof that its decision conformed to all of the conditions specified in section 65589.5. Section 65589.5 provides that when a proposed housing development
complies with the applicable general plan, zoning and development policies in effect at the time the application is determined to be complete, the agency cannot disapprove the project or approve it upon the condition that it be developed at a lower density unless the city finds that the project would have a specific
adverse effect impact on the public health or safety if not
developed at a lower density and that there is no feasible method to satisfactorily mitigate or avoid the impact other than disapproving the project or approving it at a lower density. These findings apply only where the city disapproved the project or decides to approve it at less than the minimum density range set in the general plan and zoning. While section 65589.5 applies only to housing projects it appears to freeze zoning and
general plan provisions once an application is determined to be
complete. Thus, there is an argument that the city could not
change the general plan or zoning once an application has been deemed complete without making the findings specified in section
65589.5.
*Section 65863.9: This section has been added to provide that permits issued by a city in conjunction with a tentative map for a planned unit development shall expire no sooner than the approved tentative map or any extension thereof whichever occurs later. We have implemented this section by section 18 of the
proposed ordinance. It would appear to apply only to planned
development permits issued pursuant to chapters 2 1.45 and 2 1.47
of the municipal code. However, there may be certain circumstances where a planned unit development is approved which also has a conditional use permit or site development plan for a particular part of the project. In that case, unless otherwise
stated on the face of that permit, the permit would not expire as long as the tentative map is valid.
Section 65950: The old law provided that if a negative declaration was "prepared" for a project the project had to be approved within six months from the date which the application was complete. This section has been amended to provide that the
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six month period applies only if the negative declaration is
"adopted." In Carlsbad a negative declaration is not adopted
until it has been approved by the decision making body. This
minor amendment to the code should not affect the manner in which we do business here in the city.
Section 65913.5: Existing law does not provide a method whereby a
developer of a housing project may pay fees under protest, get a
building permit, and then subsequently challenge the imposition of
the fee. Two fairly recent cases of the court of appeal have said that absent certain extenuating circumstances payment of fees under protest is no protest at all. This section establishes a procedure
by which developers of housing projects may protest the imposition of fees, taxes, assessments, dedications, reservations, or other exactions. The protest must be filed with the agency within 90
days after the establishment of the fee, tax, assessment,
dedication, reservation or other exaction and the protest must be
accompanied by a tender of a full payment or other evidence of an
arrangement to ensure performance of the exaction requirement along
with a statement forming the basis of the protest. Approval of the project may be suspended where necessary to protect the public health, safety and welfare pending a resolution of the protest. However, the law does not authorize the agency to deny development permits for the project simply because a protest has been filed.
In order to ensure that development approvals will be suspended during the period of a protest and to provide a basis to support the imposition of the requirement we suggest that when construction of certain public improvements or facilities, the need for which is directly attributable to the proposed residential housing development, is required for reasons related to the public health,
safety and welfare that specific findings be contained in the
resolution approving development of the project. The resolution shall also provide that a challenge to those conditions necessary to protect the public health, safety and welfare will automatically suspend the approval during the period of the challenge.
Section 65915: This section has been amended to require density bonuses if 50 percent of a housing development are reserved for senior citizens as defined in Section 51.3 of the Civil Code.
Chapter 1667: This chapter establishes that an alcoholism recovery facility serving six or fewer persons is to be treated as a single
family dwelling for zoning and business license purposes. The
basic provisions in this regard are contained in sections 11834.20 through 11934.25 of the Health and Safety Code. The special provisions apply to all types of permits issued by the city including fire inspection, business license and zoning permits. Basically an alcoholism recovery facility must be treated similarly as other single family residential dwellings.
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Public Utilities Code
The provisions of the Public Utilities Code regarding airport land use commissions have been amended. Those provisions are found at section 21670 et seq. of the Public Utilities Code. You
should closely review the provisions of the new law. The bill provides that if the city's general plan has not been reviewed by
the Airport Land Use Commission then the Commission may review all planning and zoning decisions made by the city until the general plan is reviewed and approved by the Airport Land Use Commission or the city has overruled a disapproval by the Airport
Land Use Commission. This provision is contained in section
21676.5 of the Public Utilities Code. Section 21675 of the
Public Utilities Code requires the Airport Land Use Commission to establish a comprehensive land use plan for the planning boundaries around and airport. Under section 21676.5 when a local agency has revised its general plan to be consistent with the Airport Land Use Plan or has overruled the Airport Land Use Commission then subsequent actions within the airport planning boundaries need not be submitted to the Commission unless the
Commission and the city agree that individual projects will be s ubmit ted .
Civil Code Certain senior general prohibi housing projects have been exempted from the tion against age discrimination by Section 51.3 of the Civil Code. Senior Citizen housing must now conform to the provisions of this code section. The redevelopment manager should review the provisions of Section 51.3 to ensure that the senior housing projects previously approved by the City comply
with the new law. This review should be completed before December 1985. We will then have until December 1986 to make any changes necessary to comply with the new law. Because Section
51.3 uses 62 as the cut off age for most projects there should not be much problem in terms of consistency.
Assistant City Attorney
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ORDINANCE NO. 9 760
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AMENDING VARIOUS CHAPTERS OF TITLES 19, 20 AND 21 OF THE CARLSBAD MUNICIPAL
CODE TO IMPLEMENT RECENT STATE STATUTORY CHANGES.
The City Council of the City of Carlsbad does ordain as
f 01 lows :
SECTION 1: That Title 19, Chapter 19-04 of the Carlsba
Municipal Code is amended by the amendment of Section
19.04.060(a)(l) to read as follows:
'I( 1 ) To hold a public hearing on every environmental impact report and on every project the environmental review for which is conducted pursuant to Section 21083.3 of the State Public Resources Code."
SECTION 2: That Title 19, Chapter 19.04 of the Carlsba
Municipal Code is amended by the amendment of Section
19.04.060(e)(l) to read as follows:
"(1) To hold a public hearing on every environmental impact report and on every project the environmental review for which is conducted pursuant to Section 21083.3 of the State Public Resources Code."
SECTION 3: That Title 19, Chapter 19.04 of the Carlsba
Municipal Code is amended by the addition of Section 19.04.090(
to read as follows:
"(c) The notices of exemption shall contain the information and be in the form required by Section 21152(b) of the State Public Resources Code."
SECTION 4: That Title 19, Chapter 19-04 of the Carlsba
Municipal Code is amended by the amendment of Section 19.04.280
to read as follows:
"19.04.280 Notice of determination. lr the decision
making body approves or determines to carry out a project or grants a requested entitlement for which a negative declaration or environmental impact report has been prepared the land use
planning manager shall file a notice of determination with the
county clerk.
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(h) When a notice of determination is returned by
the county clerk after the required posting period the land use planning manager may make the notice a part of the project file or may forward the notice to the appropriate custodian of the project file for placement in the file.
information and be substantially in the form required by Section
21152(a) of the State Public Resources Code.
(c) The notice of determination shall contain the
SECTION 5: That Title 20, Chapter 20.04 of the Carlsbai
Municipal Code is amended by the amendment of Section
20.04.020(9)(B) to read as follows:
"(B) Any other specific improvements or types of
improvements, the installation of which either by the subdivider by public agencies, by private utilities, by any other entity approved by the City Council or by a combination thereof, is necessary to ensure conformity to or implementation of the general plan, any applicable specific plan, any applicable local coastal plan or any applicable master plan adopted according to
Title 20 of this code."
SECTION 6: That Title 20, Chapter 20.04 of the Carlsbal
Municipal Code is amended by the addition of Section
20.04.040(b)(9) to read as follows:
(9) The leasing of or the granting of an easement to, a parcel of land or any part thereof, in conjunction with the financing, erection, and sale or lease of any wind powered electrical generating device on the land, if the project is not
otherwise subject to discretionary review pursuant to this code.
SECTION 7: That Title 20, Chapter 20.12 of the Carlsbac
Municipal Code is amended by the amendmerk of Section 20.12.01 5 (c
to read as follows:
(c) Notwithstanding the provisions of Subsection (b) a
tentative map may be processed concurrently with documents, permits or approvals required by Titles 19 or 21 if the applicani for the tentative map first waives the time limits for processing, approving or conditionally approving or disapproving the tentative map established by this Title or the Subdivision Map Act. Pursuant to the provisions of Chapter 19.04 of this Code a tentative map may be processed but shall not be deemed received until the environmental documents are completed.
SECTION 8: That Title 20, Chapter 20-12 of the Carlsbac
Municipal Code is amqnded by the addition of Section
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) to read as follows: 20.12.091(b)(l
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Subject to the exceptions contained in Section
State Government Code, that the property is subject to a contract entered into pursuant to the Land Conservation Act of 1965 (Williamson Act) and the parcels
resulting from the subdivision would be too small to sustain agricultural use. The determination of ability to sustain agricultural use shall be made according to the provisions of
Section 66474.4 of the State Government Code.
SECTION 9: That Title 20, Chapter 20.12 of the
Carlsbad Municipal Code is amended by the amendment of Section
20.12.100(c) to read as follows:
"(c) The period of time specified in subsection (a) including any extension thereof granted pursuant to Section
20.12.110 shall not include any period of time during which a
lawsuit involving the approval or conditional approval of the
tentative map is or was pending in a court of competent
jurisdiction, if a stay of such time ,period is approved by the
City Council pursuant to this subsection. An application for a
stay must be filed by the subdivider in writing with the city
engineer within ten days of the service on the City of the
initial petition or complaint in such lawsuit. The application
shall state the reasons for the requested stay and include the names and addresses of all parties to the litigation. The city
engineer shall notify all parties to the litigation of the date
when the application will be heard by the City Council. Within
forty days after receiving such application, the city council
shall approve or conditionally approve the stay for up to five
years or deny the requested stay."
SECTION 10: That Title 20, Chapter 20.24 of the
Carlsbad Municipal Code is amended by the amendment of Section
20.24.030(c) to read as follows:
(c) Notwithstanding the provisions of Subsection (b) a
parcel map or adjustment plat may be processed concurrently with documents, permits or approvals required by Titles 19 or 21 if
the applicant for the tentative map first waives the time limits
for processing, approving or conditionally approving or
disapproving a tentative parcel map or adjustment plat provided
by this Title or the Subdivision Map Act. Pursuant to the
provisions of Chapter 19.04 of this Code a project may be processed according to this Chapter but still not be deemed received until the environmental documents are completed.
SECTION 11: That Title 20, Chapter 20.24 is amended by
the addition of Section 20.24.130(6)(i) to read as follows:
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"(i) Subject to the exceptions contained in Section
66474.4 of the State Government Code, that the property is subject to a contract entered into pursuant to the Land Conservation Act of 1965 (Williamson Act) and the parcels resulting from the subdivision would be too small to sustain agricultural use. The determination of ability to sustain agricultural use shall be made according to the provisions of
Section 66474.4 of the State Government Code."
SECTION 12: That Title 20, Chapter 20.24 of the
Carlsbad Municipal Code is amended by the amendment of Section
20.24.170 to read as follows:
"20.24.170 Time to file parcel map. (a) Within 24
months after the approval or conditional approval of the tentative parcel map, or within the period of any extension thereof, the subdivider may file with the city engineer a parcel
map in substantial conformance with the tentative parcel map as
approved or conditionally approved and in conformance with the Subdivision Map Act and this title.
shall not include any period of time during which a development moratorium imposed after aproval of the tentative parcel map is in existence provided, however, that the length of such moratorium does not exceed five years. Once such a moratorium is terminated the map shall be valid for the same period of time as was left to run on the map at the time the moratorium was imposed. However, if the remaining time is less than 120 days
the map shall be valid for 120 days following the termination of the moratorium.
including any extension thereof granted pursuant to Section
20.24.180 shall not include any period of time during which a lawsuit involving the approval or conditional approval of the
tentative parcel map is or was pending in a court of competent jurisdiction, if a stay of such time period is approved by the city engineer pursuant to this subsection. An application for a stay must be filed by the subdivider in writing with the city
engineer within ten days of service of the initial petition or
complaint in the lawsuit upon the city. The application shall
state the reasons for the requested stay and include the names
and addresses of all parties to the litigation. The city
engineer shall notify all parties to the litigation of the date when the application will be decided by the city engineer.
Within 40 days after receiving the application the city engineer
shall approve or conditionally approve the stay for up to five
years or deny the requested stay.
approved tentative parcel map shall terminate all proceedings and no parcel map for all or any portion of the real property
included in the tentative parcel map shall be filed without first
processing a new tentative map or tentative parcel map. Once a
timely and complete filing of a parcel map has been made pursuant to this code subsequent actions of the City including but not
(b) The period of time specified in subsection (a)
(c) The period of time specified in subsection (a)
(d) The expiration of the approved or conditionally
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limited to processing, approving and recording may occur
after the expiration of the tentative parcel map,"
SECTION 12: That Title 20, Chapter 20.36 of the
Carlsbad Municipal Code is amended by the amendment of Section
20.36.030 to replace the phrase "of fifty dollars, plus ten
dollars per final lot or parcel, which will be non-refundable"
with the phrase "established by City Council resolution" in the
first sentence thereof.
SECTION 13: That Title 20, Chapter 20.48 of the
Carlsbad Municipal Code is amended by the amendment of
Section 20.48.030 to read as follows:
"20.48.030 Development permits and approvals withheld.
(a) The City or any other responsible aqency shall not issue or grant building, grading or any-other permit,-or any
approval necessary to develop any real property which has been divided or which has resulted from a division in violation of tht provisions of the Subdivision Map Act or City ordinances enacted
pursuant thereto applicable at the time such division occurred unless the City Engineer or, on appeal, the City Council finds
that development of such real property is not contrary to the
public health or the public safety. The authority to deny such permit or such approval shall apply whether the applicant therefor was the owner of record at the time of such violation 01 whether the applicant therefor is either the current owner of record or vendee of the current owner of record pursuant to a
contract of sale of the real property with or without actual or
constructive knowledge of the violation at the time of the acquisition of his interests in such real property.
(b) All applications for permits or approvals necessar!
for the development of real property shall be reviewed by the City Engineer, who shall determine whether the real property has
been subdivided or has resulted from a division in violation of
the Subdivision Map Act or City ordinances enacted pursuant
thereto. The Engineer shall also make such a determination upon a receipt of a written request from the owner of such real property or the vendee of the current owner of record pursuant to a contract of sale of the real property or upon receipt of written notification of the authority or body responsible for
granting a permit or approval. The City Engineer may approve
real property for development pursuant to subsection (a) and shall so inform the owner or vendee thereof and the authority or body authorized to issue or grant the permit or approval for development. If it is determined that such real property is approved for development, the City Engineer may impose those conditions that would have been applicable to the division of tht property and which had been established at such time by the Subdivision Map Act or City ordinances enacted pursuant thereto and are appropriate to satisfy public health and safety
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considerations and other considerations as are hereinafter
specified unless the applicant was the owner of record at the time of the initial violation in which event the City Engineer
may impose such conditions as would be applicable to a current
division of property. If a conditional certificate of compliance
has been filed for record under the provisions of Section
20.48.040, only such conditions stipulated in that certificate shall be applicable. If real property is approved for development the City Engineer shall cause a certificate of
compliance relative to the subject real property and reflecting
any conditions of development to be filed with the county
recorder pursuant to Section 20.48.040 of this chapter.
approval should be granted for development of real property divided or resulting from a division in violation of the
Subdivision Map Act or City ordinances enacted pursuant thereto,
the City Engineer or the City Council shall give consideration to:
(1) Whether the owner of the real property can
rescind the agreement by which he acquired the real property and recover the consideration paid therefore;
(2) Whether the real property meets the
requirements of the applicable zoning redulations;
(3) Whether the real property has a satisfactory potable water supply;
(4) Whether the real property has legal access to a city or county maintained road;
(5) Whether the current owner would have been required to dedicate land for any public purpose or construct or install any improvements pursuant to the terms of the Subdivisior
Map Act or City ordinances enacted pursuant thereto had the subdivision by which the real property was created been submittec for approval at the time the current owner acquired the
property.
development of real property where improvements have been completed prior to the time a permit or grant of approval was
required for development of the property, or for development of real property for which improvements have been completed in
reliance on a previous permit or grant of approval for
development, unless the City Engineer finds that development is contrary to the public health or safety. (e) Whenever any person submits an application for a
building or any other permit for proposed construction of more than one main building as defined in Title 21 on any single lot or building site, the Director of Building and Planning shall refer such application together with the plot plan to the City Engineer for his determination as to whether such proposed
construction would create a subdivision. The permit for such
proposed construction shall not be issued unless the City Engineer has approved the plot plan and determined that the proposed construction would not constitute a violation of the
Subdivision Map Act or this title.
certificate of compliance shall be accompanied by a fee established by City Council resolution.
(e) In determining whether approval or conditional
(d) Approval for development shall be granted for
(f) A request for development approval or a
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"(a) Any owner of real property or a vendee of such
person pursuant to a contract of sale of such real property may request in writing that the City Engineer make a determination
whether such real property complies with applicable provisions of
the Subdivision Map Act and City ordinances enacted pursuant thereto, or that such real property does not comply with the
provisions, and the City Engineer shall so notify the owner
thereof setting forth the particulars of such compliance or noncompliance. If the subject real property is found to be in compliance with the Subdivision Map Act and City ordinances enacted pursuant thereto, the City Engineer shall cause a certification of compliance relative to such real property to be
filed for record with the county recorder.
If the subject real property is found not to be in compliance with the Subdivision Map Act and City ordinances enacted pursuant thereto, the City Engineer may issue a notice of
violation or a conditional certificate of compliance. When issuing a conditional certificate of compliance the City Engineer may impose such conditions as would have been applicable to the
division of the property at the time the applicant acquired his interest in the property and which had been established at such time by the Subdivision Map Act or city ordinances enacted pursuant thereto. Upon making such a determination and establishing such conditions, the City Engineer shall cause a conditional certification of compliance setting forth such
conditions to be filed for record with the county recorder, fulfillment and implementation of the conditions shall be required prior to the subsequent issuance of a permit or grant o approval for development of the property, but compliance with such conditions shall not be required until such time as a
building permit or granding permit is issued by the City."
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SECTION 14: That Title 20, Chapter 20.48 of the
Carlsbad Municipal Code is amended by the amendment of Section
20.48.040(a) to read as follows:
SECTION 15: That Title 21, Chapter 21.54 of the
Carlsbad Municipal Code is amended by the amendment of Section
21.54.010 to read as follows:
"21.54.010 Applications. (a) The City Manager shall prescribe the form of applications for the development permits or approvals and applications for changes in zone or general plan boundaries or classifications. The City Manager or his designee may prepare
and provide application forms and shall prescribe the type of information to be provided with the application by the applicant
No application shall be accepted unless it is in the proper form and contains all required information. The application shall be filed with the development processing coordinator who shall forthwith deliver the application to the land use planning
manager.
appropriate departments concerning the application and shall (b) The land use planning manager shall consult with
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within 30 days after the application has been filed with the development processing coordinator determine in writing whether
the application is complete and shall transmit the determination to the applicant. The written determination shall specify those parts of the application which are incomplete and shall indicate the manner in which the application can be made complete. The written determination shall include a list and description of the specific information needed to complete the application. Within
30 days of any resubmittal of the application or submittal of materials in response to the written determination the land use
planning manager shall determine in writtinq whether the
application, together with the subsequently submitted materials,
constitute a complete application and shall immediately transmit
the determination to the applicant. When a determination that an
initial application is incomplete has been transmitted to the
applicant, the applicant shall have six months from the date the application was initially filed to either resubmit the application or submit the information specified in the determination. Failure of the applicant to resubmit the application or to submit the materials in response to the determination within the six months shall be deemed to constitute
withdrawal of the application. If an application is withdrawn or
deemed withdrawn a new application must be submitted. (c) If the application together with the materials submitted in response to a determination of completeness are determined by the land use planning manager to not be complete pursuant to this section the applicant may appeal the decision i
writing to the Planning Commission within 20 days after the determination has been transmitted to the applicant. The Planning Commission shall make a final written determination of the completeness of the application not later than 60 calendar days after the receipt of the applicant's written appeal. (a) Failure by the City to meet the deadlines
specified in this section shall cause the application to be
deemed complete. The failure of the applicant to meet any of th time limits specified in this section shall be deemed to
constitute withdrawal of the application. Nothing in this
section precludes an applicant in the City from mutually agreeinl
to an extension of any time limit provided in this section.
(e) Subsections (b) through (d) of this section shall remain in effect only until January 1, 1991 and as of that date are repealed unless an ordinance which is enacted before January 1, 1991 deletes or extends that date."
SECTION 16: That Title 21, Chapter 21.54 of the
Carlsbad Municipal Code is amended the amendment of Section
21.54.040 to read as follows:
"21.54.040 Filing fees. A fee in an amount establishec
by City Council resolution shall be paid at the time an application for a development permit for approval or the approva
of a change in zone or general plan boundaries reclassifications
is filed. No application shall be accepted or deemed accepted
until the appropriate fee or fees have been paid."
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SECTION 17: That Title 21, Chapter 21.54 of the
Carlsbad Municipal Code is amended by the amendment of Section
21.54.050 to read as follows:
"21.54.050 Setting of hearings. All proposals for amending zone or general plan boundaries reclassifications or
for the granting of any development permit or approval requiring
a hearing as provided in this title shall be set for hearing by
the land use planning manager when such hearings are to be held before the Planning Commission and by the City Clerk for hearings to be held before the City Council."
SECTION 18: That Title 21, Chapter 21.58 of the
Carlsbad Municipal Code is amended by the amendment of Section
21.58.020 to read as follows:
"21.58.020 Expiration period. Any conditional use permit or variance or other development permit or approval
granted by the Planning Commission or the City Council whichever
is the final decision making body becomes null and void if not
exercised within the time period specified in the resolution granting the application or, if no time period is specified,
within 18 months of the date of approval.
face of the permit any development permit which is issued in conjunction with tentative subdivision map for a planned unit development as defined by Section 11003 of the State Business anc Professions Code shall expire no sooner than the approved tentative map or any extension thereof whichever occurs later. Local coastal development permits issued in conjunction with a tentative subdivision map for a planned unit development shall expire no sooner than the approved tentative map and shall be in accordance with the applicable local coastal program which is in effect at the time of the application for extension.
(b) Unless an earlier expiration date appears on the
EFFECTIVE DATE: This ordinance shall be effective
thirty days after its adoption, and City Clerk shall certify to
the adoption of this ordinance and cause it to be published at
least once in the Carlsbad Journal within fifteen days after its
adopt ion.
INTRODUCED AND FIRST READ at a regular meeting of the
Carlsbad City Council held on the 14th day of May I
1985, and thereafter
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PASSED AND ADOPTED at a regular meeting of said City
Council held on the 21st day of , 1985 by the
following vote, to wit:
AYES:
NOES: None
ABSENT: None
Council Merrbers Casler, Lewis, Kulchin, Chick and Pettine
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MARY H.,/CASLER, Mayor
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ATTEST :
Lzfk&k d! @-
ALETHA L. RAUTENI(RAN2, City C
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