HomeMy WebLinkAbout1989-10-17; City Council; 10318; Dedication appeal - 4380 Adams ST\B# /<3/f
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TITLE APPEAL OF DEDICATION AND
IMPROVEMENT REQUIREMENTS AT
4380 ADAMS STREET
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RECOMMENDED ACTION:
Deny appellants request for appeal of City dedication and improvement requirement
pursuant to Section 18.40 of the Carlsbad Municipal Code. -
ITEM EXPLANATION:
This is a request for appeal of improvement and dedication requirements made by Mr. Lee Alton part owner of a parcel of land located at 4380 Adams Street. On March 14,
1989, the appellant applied to the City for a building permit to expand the existing residence located on the above noted parcel. The permit application is for a 2,252 square foot addition with a calculated permit valuation of $121,524. By City ordinance dedication of additional public right-of-way is required whenever the permit valuation exceeds $1 0,000. Public improvements are required whenever the permit valuation exceeds $20,000.
Mr. Alton's appeal is based upon several reasons which are more fully disclosed within the attached letter to the City Attorney dated August 24, 1989.
Staff has prepared a detailed response to each of the appellant's contentions. Essentially staff believes the appellants's reasons are not sufficient to recommend waiver of the ordinance requirements. Staff believes the dedication and improvement requirements are neither excessive nor unlawful and therefore recommend denial of the appellants request.
FISCAL IMPACX:
Obtaining dedication and improvements as a requirement of building permit issuance
saves the City money in securing dedication and improvements at a later date.
EXHIBITS:
1. Location Map.
2. Letter from Lee Alton (August 14, 1989).
3. Memorandum from Assistant City Engineer to City Engineer dated
September 29, 1989.
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LOCATION MAP
LEGEND
VACANT PROPERTIES
///I 555; ////
PROPERTIES WITH FUTURE IMPROVEMENT AGREEMENTS
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EXHIBIT APPEAL
4380 ADAMS ST.
PROJECT NAME
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August 24, 1989
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Ronald R. Ball
Assistant City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
SUBJECT: ADDITION TO
SINGLE FAMILY RESIDENCE
4380 Adams Street
Dear Mr. Ball,
Today I called your office in response to your letter of August 23,
1989 and together we established that the City has not yet responded
to us regarding the following issues which were discussed at the
August 15, 1989 meeting:
1. City failed to ask for street dedication or improvement agreement
at the time of application for or issuance of the permit for extensive
foundations and basement garage. This permit was thoroughly plan-
checked by the City at a substantial fee, and the plans contain obvious
expensive preparations for the superstructure; but even without these
structure. This fast-track procedure is a way to begin work early and
has precedent.
features, a basement garage is an obvious preparation for a super- .C
2. Had the City required that without compensation, we offer almost
800 square feet of praperty as a condition of permit issuance to begin
the project, we could not have begun because my sister and brother who
are part owners of the land would not have agreed.
3. Now we are in the middle of the project. Extensive underground
reinforced concrete walls and footings have been completed. The
project would cost much more to abandon than has been so far spent.
The damages ‘physically and financially, if the project has to be
abandoned are almost impossible to calculate.
4. On March 14, 1989 we applied for the superstructure permit and
paid the plan-check fee. The City made no mention, neither verbally
nor in writing, about additional street dedication.’
5. On July 25, 1989, we were informed that we had completed all of
the plan-check corrections. No suggestion was made during the
extensive plan-check process that the City would require that we
offer property as a condition to continue this project.
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6. On the morning of July 27, 1989, two of us were told by Mr. York
at the Building Department counter that only the calculation of the
permit fee was standing in the way of issuance. We said we would
wait while this calculation was made and were told that there might
be a lot of work coming in and the fee might not get calculated that
morning, that when it was ready in the afternoon we would be called.
Late that afternoon, not having heard, we called and were told the
permit could be issued the next day. The next morning (a Friday)
we were informed that the permit could not be issued without an agreement for future street improvements, and that such agreement
would not be ready until Monday. Accordingly, we sent the crews
home. Late Monday afternoon we were informed that the City would
refuse to issue the permit for the superstructure unless we also
deeded a strip of land to the City. This was the first indication
by the City to us of a desire for land as a condition to continuing
our project.
7. While all of the above facts should be surprising, they are
more remarkable in view of the City Council's efforts during the
last two years to .obtain from staff the paperwork necessary to consider
a rural standard for the hillside part of Adams Street. If the Council
were to favor such a standard, the strip of land might not be needed.
8. Preparatory to a meeting in the Mayor's office on August 7, 1989, ,_
our investigation revealed that permits have been issued to others this
year in the same vicinity and zone for substanstial additions to
single family residential property (as is ours) on the same hillside
winding street without first obtaining land for possible future street
widening. If enforcement of an enabling ordinance has been generally
uneven, and if a city inaugurates a program of stricter enforcement
of an ordinance, notice to applicants would be a necessary ingredient.
Absent this notice, and especially in view of our previous permit, it
was reasonable and prudent for us to rely on our plan-check correction
list as complete. If a building permit exceeds a certain valuation
level, the enabling ordinance intent seems to be to allow the City to
exact a promise to improve the street; but if the City has not yet set
a standard for that street, it seems a legal procedure to forgive
that requirement and rely on all of the other methods historically
used for street improvement.
9. On August 8, 1989 (the day after the meeting in'the Mayor's
office to expedite paperwork) we were given a proposed CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS together with a proposed deed by which we
were expected to grant the strip of land. Some of the language
in the proposed contract was inappropriate to our case and the City
Engineer referred us to the City Attorney's office for any discussion
about this proposed contract, On August 15, 1989 we met with you,
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Martin Orenyak and David Hauser, in which meeting all of the above
and more was discussed. For the record, we repeat some of the
inappropriate language in the proposed contract and also repeat
our comments:
...." it has been found that said property is not suitable for
development in its present condition, however said property would
be suitable for development if certain public improvements herein-
after described are constructed and certain irrevocable offers of
dedication are made to City;"
The City has found this property suitable for development by issuing
the permit for the basement without declaring it unsuitable. The
City has not ascertained that it needs the dedication.
11 .... Property Owner has requested said Building Permit No. CB890351
be granted by City in advance of the time said improvements are to
be made;"
This is not the true situation. How can we have our right to the
option to design and build improvements to the street - now if the
City has not yet decided what standards to follow?
11 .... Property Owner, in consideration of the approval of said .L
Building Permit No. CB890351 desires to enter into this agreement
securing the construction of said improvements, and City has
determined it to be in the public interest to agree to temporarily
postpone said construction;"
In fact it might be found that this is a contract without consideration
in view of the probable vesting of a right to complete our super-
structure. State of California public policy is to encourage the
improvement of existing housing stock. To use a single family
residential addition to circumvent the state constitutional provision
that the public shall not take private property without just
compensation - discourages the improvement of existing housing stock.
On August 15th, it was indicated that there might be an easy solution
and that we would hear back in about a week. Your letter of
August 23rd (copy attached for information) was received today and
then (on the phone) we again discussed these other' issues, which
discussion was necessarily without resolution on account of your
leaving for vacation the following day. Since we remain in
administrative review, we assume that time is not tolling for any
relevant statute in favor of the City.
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Please consider this letter our request to appeal to City Council
to forgive this requirement at this time for the following reasons:
. vesting for the superstructure permit . failure to'notify . City's wish to abate damages . rural standards under study . question as to consideration . desire to promote improvement of existing housing stock
In return, we would forgive any and all claims against the City
on account of delays; or by failure to abate damages by not issuing
a permit for the superstructure, which permit is always revocable
for cause. By this request, we are not discouraging suggestions for other solutions.
Very truly yours,
Lee Alton
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cc: Mr. & Mrs. Bert Alton, Jr.
Mr. & Mrs. Verne Potter
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MEMORANDUM
September 29, 1989
TO: CITY ENGINEER
FROM: ASSISTANT CITY ENGINEER 0 d
RESPONSE TO MR. ALTON’S REQUEST FOR WAIVER OF DEDICATION AND
IMPROVEMENT REQUIREMENTS -
I have reviewed the letter from the appellant, Mr. Alton, to the Assistant City Attorney
dated August 24, 1989. It is my opinion that none of the appellants reasons provide sufficient justifications to recommend to Council that the improvement and dedication
requirements be waived. The following is an item by item explanation of appellants
contentions and my analysis of each contention:
Failure of the City to require dedication and improvements as a condition of
a previous remodel permit. The appellant was issued a permit for a garage addition in 1986 which had a permit valuation of 12,000 dollars. In 1986, both
dedication and improvements were required when the permit valuation exceeded $10,000. For unknown reasons staff failed to invoke the improvement or dedication requirements as a condition of permit issuance. The appellant states the garage was designed to act as a foundation for a
future 2nd story expansion of the residence. The appellant contends he would
not have constructed the garage if it was known at the start that dedication of
property would be required. He indicates that his co-owners will not agree to
any dedication. The appellant believes he has been damaged to the extent
he has constructed a garage to support a structure for which he is precluded
from obtaining a permit without making a dedication.
I believe the failure to obtain dedication and improvement as a condition of the
previous permit is not grounds for waiving existing code requirements. The
appellants claim of damage and ’vesting’ of his permit because it was ’evident’
the garage was designed to act as a foundation for a future ’super structure’
are not particularly relevant. From the City’s viewpoint a building permit was issued for a garage which was subsequently constructed. Now several years later, an application has been submitted to expand the existing residence.
Virtually every structure in the City includes elements of overdesign. It would
be unimaginable to categorically guarantee or ’vest’ every owners right of to
construct a future expansion because one element of the building was
overdesigned.
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City Engineer September 29, 1989
2.
3.
Page: 2
The City failed to make timely notification to appellant of the dedication and
improvement requirement. As stated in appellant's letter, the permit application
was made on March 14, 1989. The first notification made to appellant regarding improvements and dedication requirements was made sometime in
late July, after several months of plancheck. We admitted to the delay and
apologized to appellant for the late notification. The oversight in the initial
review was discovered prior to permit issuance. I am not of the opinion that
code requirements should be dismissed due to an oversight. The fact remains
the error was discovered prior to permit issuance and every effort was made
to hasten the dedication and improvement process for the appellant. This
involved the waiver of processing fees, staff preparation of legal description and plats (normally prepared by the applicants Engineer) and waiver of the title report requirements.
The City has not adopted a plan for improvement of Adams Street. This
contention is not true. The City's circulation element requires that local streets
be constructed with forty feet of pavement (curb to curb) within a sixty foot
right of way. The existing right of way on this stretch of Adams is fifty feet. The City has for years collected Future Improvement Agreements and dedications amounting to five additional feet from surrounding properties as they developed. While it is true that some lapses have occurred through the years, as can be seen on the attached location map most of the developing
properties have complied with City requirements.
The City recently initiated a process, at Council request, to establish a 'rural road' standard along this segment of Adams Street. This new road standard
will be brought before Council within the next couple months. Presently the new proposed standard still requires a sixty foot dedication to retain the ability
to meander the reduced width roadway within the right of way in order to
minimize ultimate grading and environmental impacts.
4. The appellant also raised issues of consideration for property given and promoting the improvement of existing housing stock. I believe these are policy issues which received due and adequate consideration by City Council during the preparation of existing City ordinances. A copy of the dedication
and improvement ordinances including Section 18.40.01 0 "Findings purposes
and intent" has been included for your review.
Unstated in the appellant's letter, but discussed in great detail during our meetings with
the appellant is appellant's desire to retain adequate land to subdivide the property
sometime in the future. Staff analysis reveals that appellants property is approximately
27,600 square feet. Given the R-1-15000 zoning in this area the appellant would need,
as a minimum, an additional 2,400 square feet of land to subdivide his property. The proposed dedication will
City Engineer
September 29, 1989 Page: 3
reduce the property area by an additional 800 square feet. Staff recommended inclusion
of wording on the deed or Future Improvement Agreement which basically restored the
800 feet as lot area consistent with the normal determination of lot size at the time of
development. The appellant rejected this offer in favor of a counter proposal which
guaranteed City considerations not now afforded to adjacent properties. I believe the appellant’s demands are unreasonable and not consistent with the orderly development of the community. I further believe that the dedication and improvements requirements are justified. For these reasons staff recommends denial of the appellants request.
DAVID A. HAUSER Assistant City Engineer
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