HomeMy WebLinkAbout2000-06-27; City Council; 15830; Street And Sidewalk Policy Committee Final Report8 3
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C,v OF CARLSBAD - AGENDAiLL
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AB# 6 g30 TITLE:
RECOMMENDATIONS FOR THE
MTG. 6127100 IMPLEMENTATION OF THE STREET AND SIDEWALK
POLICY COMMITTEE FINAL REPORT
RECOMMENDED ACTION:
1. Introduce Ordinance No. r\ls -5 55 amending Municipal Code Chapter 18.40.
2. Introduce Ordinance No. fl 5 -s56 repealing Urgency Ordinance No. 518 & 5 2 7 l
3. Adopt Resolution No. a000 - 2.3 b naming Alternative Design Streets, approving Alternative
Street Design Process and Alternative Street Design Criteria.
4. Adopt Resolution No. &I00 - a37 approving Responses to Street & Sidewalk Committee
recommendation.
ITEM EXPLANATION:
Background
On November 2, 1999 the City Council adopted Resolution No. 99-485 forming the citizens
committee to study sidewalks and street improvements. The Street and Sidewalk Policy Committee
was “directed to consider all relevant issues pertaining to street and sidewalk designs in formulating
its recommendations to the City Council including, but not limited to, aesthetics, neighborhood
compatibility and preferences, safety, liability, environmental impacts, and to consider all applicable
laws including, but not limited to, Americans with Disabilities Act, Clean Water Act and the like.”
“After careful study and consideration of all appropriate and relevant information including public
input, it shall make its report and recommendations to the City Council. Its report shall consider
street categories and whether or not they should be standard or special character and recommend a
process to petition for installation of improvements.”
On February 23, 2000, the Committee approved its final report, which was presented to the
City Council on March 7, 2000.
In conformance with Council’s direction, the Committee identified streets within the study area to be
completed compatible with existing improvements and alternative design streets which were to
remain in the current state until such time as a special study was triggered and the recommended
“Alternative Street Design Approval Process” was completed.
In addition to the street categories and “Alternative Street Design Approval Process”, the Committee
approved an “Alternative Street Design Criteria” to guide the approval process.
Beyond the specific direction of the Council, the Committee adopted fourteen (14) individual
recommendations that further addressed concerns of the Committee.
This report contains staffs analysis of the Committee recommendations and implementing
measures incorporating changes into the City codes, policies and procedures to accomplish
recommended actions.
Page 2 of Agenda Bill No. I!$! ~3 0
Street Categories
The Committee reviewed all streets within the study area and created two categories:
1. Compatible Improvement Streets
2. Alternative Design Streets
Compatible improvement Streets are to be completed with curb, gutter and sidewalks compatible
with existing improvements in the surrounding area and not in violation of state and federal law.
Alternative Design Streets shall remain unimproved until the street has completed the Alternative
Street Design Approval Process to establish a design most compatible with neighborhood and
overall City goals.
Staff supports the street categories and the Alternative Street Design Approval Process included in
the Committee report.
Implementation of the Committee recommendations requires revisions to Chapter 18.40 of the
Carlsbad Municipal Code (See attached Exhibit 1). It is recommended that section 18.40.070
Deferral of Improvement Requirements be. revised by the addition of condition (5) stating
“Improvement would be to a street designated by Resolution of the City Council as an ‘Alternative
Design Street’ and subject to the ‘Alternative Street Design Approval Process”‘, and, (6)
“Improvements are not continuous with existing improvements and construction would be
impractical.” Also, attached for Council approval is a resolution adopting the Committee
recommended list and maps showing Alternative Design Streets and incorporating the adoption of
the Alternative Street Design Approval Process and Alternative Street Design Criteria.
Miscellaneous other revision to findings have been incorporated into Municipal Code section 18.40
to be consistent with the Alternative Street Design concept. Changes to the code are shown by
strikeouts and addition for ease of review on Exhibit 1.
Section 18.40.130 establishing the moratorium on improvements is being eliminated.
Street and Sidewalk Committee Recommendations
Attached for Council review is a point-by-point review of the Committee’s recommendation and
staffs responses. If Council agrees with staffs recommendations, a resolution has been provided
responding to the Committee’s recommendations.
Staff generally supports the Committee recommendations, except in the areas related to
improvements and right-of-way dedications as they apply to residential remodels.
Dedications
Committee recommendation number seven (7) states that “street right-of-way dedication be required
only for building permits which create new residential dwelling units. Residential remodels would be
exempt from the requirement.”
Staff Recommendation:
Dedications shall remain as a requirement of residential remodels. The threshold for the requirement
should be raised from $70,000 to $15,000 in building valuation with this threshold amount being
indexed to increase with the international Conference of Building Officials (ICBO) determination of
building valuations.
Page 3 of Agenda Bill No. rL%! g 30
Discussion
State law and generally accepted practice recognizes the obligation of each property owner to
provide frontage rights-of-way and improvements to access property and provide continuity for the
provision of services to the neighborhood and the community as a whole. These dedications need to
be consistent with accepted City standards, unless they are modified by specific Council action.
Consistent with Committee recommendation number 8, at such time as Alternative Design is
adopted identifying a reduced right-of-way requirement, the excess dedication can be returned.
Staff is further recommending that the Code be revised to allow an irrevocable offer of dedication in-
lieu of the actual granting of easements. This would allow the property to be retained by the owner
until such time as it is required to install required improvements. An irrevocable offer to dedicate
real property may expire subject to California Code of Civil Procedures, Section 771.010. The
appropriate language has been incorporated into the Ordinance for Council adoption.
Improvements
Committee recommendation number 9 states that “Future improvement Agreements apply to only
new construction. Remodeling of existing residential dwelling units would be exempt from
improvement requirements.”
Staff Recommendation
That the improvement requirements continue to be recognized for residential remodels and that
agreements be required when permits exceed $75,000 in building permit valuation. This amount to
be indexed to changes in the /CBO valuation schedule. $75,000 is an increase over the existing
$50,000.
Staff further recommends that the former Future Improvement Agreement be replaced with a
“Neighborhood improvement Agreement”. This change is incorporated into the attached ordinance
revision. Staff would support allowing existing Future Improvement Agreements to be substituted
with a Neighborhood Improvement Agreement upon request of the property owner. (See attached
Exhibit 7)
Discussion
As with the dedication requirement, frontage improvements are commonly recognized as a property
owner obligation. To the extent that improvements are inadequate to meet the needs of the
neighborhood and the community as a whole, the Council needs a mechanism to ensure the ability
to gain property owner participation should improvements be required.
Past practice of the City has been to obtain Future Improvement Agreements (FIA’s). These
documents establish a lien obligation on the property and require installation of improvements upon
demand of the City. The FIA represents a lien on the property, is recorded and runs with the
property. FIA’s have been invoked in conjunction with City improvement projects. This has given
rise to an equity concern that some citizens have been required to install and pay for improvements through FIAs, while their neighbors may not have been required to pay. A more equitable approach
would be to form assessment districts and spread the cost equitably throughout the block.
This approach is more consistent with a general obligation for all property owners, will allow a more
equitable distribution where an alternative design varies for different frontages and would better lend
itself to payment for improvements over time.
Page 4 of Agenda Bill No.
Staff working with. an assessment attorney has developed a “Neighborhood Improvement
Agreement”. Under this agreement, the building permit applicant agrees to not protest the formation
of an assessment district on their block and to pay their fair share of improvements not to exceed a
* stipulated amount.
This approach has the advantage of a more equitable distribution of cost and a reduction of cost to
the City as a whole, but it will require an extensive public process to define and install needed
improvements. In some instances, this may be very difficult to accomplish and frustrate needed
improvements.
Attached for Council review (Exhibit 6) is a survey of how other agencies deal with dedications and
improvements related to building permits.
Conclusion
Staff supports the direction of the Street and Sidewalk Committee with exception of the noted
differences related to dedication and improvement requirements. Ordinance revisions and
resolutions are submitted for the Council’s consideration to implement those recommendations.
ENVIRONMENTAL REVIEW
The actions recommended to the Council at this time do not qualify as projects for purposes of
environmental review and CEQA analysis. Follow-up actions to implement the Council’s decisions
may qualify as projects and may be required to go through environmental analysis such as a specific
proposal to design and adopt an Alternative Street Design.
FISCAL IMPACT:
The proposed program will involve significant staff resources to assist neighborhoods in the
development of Alternative Street Designs. Depending on the scope and difficulty, each street
design could cost from $50,000 to $150,000 including preliminary engineering studies. The cost of
assessment district formation could range from $25,000 to $50,000 per block. Although it is
estimated that only a small number of assessment districts would be developed, additional staff
resources may be needed for administration of districts in subsequent years ($10,000 to $30,000
annually).
All costs could be recovered with the successful formation of an assessment district. Adopting the
assessment district approach will reduce the City’s involvement in funding the sidewalk program,
which is currently budgeted at $800,000 per year through Traffic Impact Fees and Transnet.
However, these funds would not be available to finance assessment districts. Instead, the
assessment districts would need to issue bonds to fund the initial work with the bonds to be repaid
by the property owners.
EXHIBITS:
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4.
Ordinance No. AI5- S5.5 amending Municipal Code Chapter 18.40.
Ordinance No. k S- 55b repealing Urgency Ordinances No. NS-516 and No. NS-527.
Resolution No. aoO- 2.3 b naming Alternative Design Streets, approving Alternative
Street Design Process and Alternative Street Design Criteria.
Resolution No. JOOO- a 37 approving Responses to Street & Sidewalk Committee
recommendation.
5. Staff Analysis of Street & Sidewalk Committee Recommendations.
6. . Survey of Dedication and Improvement Requirements.
7. Neighborhood Improvement Agreement
ORDINANCE NO. NS-555
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, REPEALING MORATORIUM ON
IMPROVEMENTS, TITLE 18, SECTION 18.40.130 OF THE
CARLSBAD MUNICIPAL CODE, AND AMENDING TITLE 18,
CHAPTER 18.40, OF THE CARLSBAD MUNICIPAL CODE BY THE
AMENDMENT OF SECTIONS 18.40.010,. 18.40.020, 18.40.030,
18.40.040. 18.40.070 AND 18.40.090. I
The City Council of the City of Carlsbad, California, hereby ordains as follows:
SECTION 1: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
8 II the amendment of Section 18.40.010 to read as follows: I
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10 18.40.010 Findings, purpose and intent.
11 (a) The city council finds as follows:
12 (1) There is a lack of adequate ou&+guW:s. sWwalksroadway edoe treatments, pedestrian
,3 facilities and streets in various areas of the city which is-may be prejudicial and dangerous to the
,4 public health, safety, and welfare of the inhabitants of the city.
15 (2) The lack of improved &&walk6pedestrian pathways in the city in many instances forces
pedestrians, including school children, to walk in the streets and to be subject to the hazards of
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vehicular traffic.
17 (3) The lack of improved si&+A&-pedestrian pathways during rainy weather has caused
18 unhealthy conditions resulting from pedestrians walking through mud or water along streets or dirt
19 sidewalks.
20 (4) Streets and highways of inadequate width and design hinder vehicular movement and
21 I/ constitute a hazard to the safety and health of users.
22 (5) The lack of curbs, storm drains and other street improvements results in poor drainage and
23 a collection of filth and waste.
24 (6) The lack of improved streets impedes the operation of fire trucks, police cars and other
25 emergency vehicles as well as the operation of street sweepers and refuse collection vehicles.
(b) It is the purpose of the city council in adopting the provisions of this chapter to:
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(1) Impose reasonable requirements of dedication and improvements upon persons engaged in
.the development, construction, reconstruction or remodeling of buildings which tend to result in
28 increased demands upon the existing public rights-of-way and streets and highways in the city
thereby increasing the danger to the public health, safety and welfare;
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(2) Extend the basic requirements of the Subdivision Map Act by establishing standards and
requirements for dedication and improvements in connection with the development of land in
which no subdivision is involved;
(3) Alleviate the undesirable situation found to exist in subsection (a) by spreading the cost of
public improvements upon abutting property in an equitable manner and by causing the installation
of those improvements required by the city to serve property about to be developed at the time of
its development.
(c) The city council intends to require, in accordance with the provisions of this chapter, the
dedication of portions of the public rights-of-way including streets, highways, alleys and storm
drain facilities and the construction of improvements contiguous to the property from the property
line to the centerline of the public rights-of-way as necessitated by the nature and type of building
or structure being constructed and the use to which the property is being put.
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SECTION 2: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
the amendment of Section 18.40.020 to read as follows:
18.40.020 Definitions.
For the purposes of this chapter, the following words and phrases shall have the meaning
respectively ascribed in them by this section:
(1) “Alley” means a public or private way permanently reserved as a secondary means of access
to abutting property.
(2) “Building” includes any building, structure or dwelling of which the cost price of erecting the
same is in excess of the sum of ten--fifteen thousand dollars as Determined by
building permit valuation.
(3) “Improvements” includes, but is not limited to, sidewalks, gutters, pavement, driveways,
curbs, streets, alleys, storm drain facilities, water systems, sanitary sewer systems, street lighting,
fire protection installation, undergrounding of utility facilities and pavement transitions.
(4) “Person” means any person, firm, partnership, association, corporation, company or
organization of any kind. The term “person” also includes any owner, lessee or agent constructing
or arranging for the construction, modification, or alteration of a building or dwelling. I
1 (5) “Alternative Design Streets” means any street designated by Resolution of the Cite Council
2 as an “Alternative Design Street” subject to the Alternative Street Desion Approval Process used
3 to determine the final improvement standards for the designated street.
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SECTION 3: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
5 II the amendment of Section 18.40.030 to read as follows:
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7 18.40.030 Dedications required
8 (a) Any person who constructs or causes to be constructed any building in the city shall have
9 provided by means of an irrevocable offer of dedication, grant of easement or other appropriate
IO conveyance, as approved by the city attorney, the rights-of-way necessary for the construction of
11 any street, highway, or alley as shown on the circulation element of the general plan, any
12 applicable specific plans, or as otherwise required by the city engineer in accord with an
13 established street system or plan. Rights-of-way shall also be provided for any improvements to
14 existing facilities including rights-of-way for storm drains or other required public facilities. All
rights-of-way shall be accompanied by a title examination report and be free of all liens and
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encumbrances.
16 (b) The dedications or irrevocable offer of dedication required by subsection (a) shall also apply
17 to any person who alters, enlarges, expands, or causes to be altered, enlarged, or expanded any
I8 building in the city if the cost of such work exceeds the sum of ten-fifteen thousand dollars as
Is determined by building permit valuation. Said amount to be increased annually consistent with
20 International Conference of Building Officials valuation schedule for the appropriate construction
21 type.
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23 (c) The dedications required by this chapter shall be made prior to issuance of the building
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SECTION 4: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
the revision of Section 18.40.040 to read as follows:
18.40.040 Public improvements required.
(a) Any person who constructs or causes to be constructed any building in the city shall
construct all necessary improvements in accordance with city specifications upon the property and
along all street frontages adjoining the property upon which such building is constructed unless
adequate improvements already exist. In each instance, the city manager shall determine whether
or not the necessary improvements exist and are adequate. Each building permit application shall
be so endorsed at the time it is issued.
(b) The improvements required by subsection (a) of this section shall also apply to any person
who alters, enlarges or expands or causes to be altered, enlarged or expanded any building in the
city if the cost of such work exceeds fifty--seventh-five thousand dollars. Said amount to be
increased annually consistent with International Conference of Buildino Officials valuation
schedule for the appropriate construction type.
SECTION 5: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
the revision of Section 18.40.070 to read as follows:
18.40.070 Deferral of improvement requirements.
Upon written application, the city manager by written order may defer any of the improvements
required by this chapter if he finds that the public health, safety and welfare of the inhabitants of
the city will not be endangered by the deferment of the construction of the improvements and that
any one of the following exists:
(1) There is a lack of adequate data in regard to the grades, plans or surveys which complicate
the construction of the improvements and indicate they should be deferred to a later time.
(2) The construction of the improvements is included in an approved or pending assessment
district or otherwise guaranteed as provided by city ordinance.
(3) Construction of the improvements would be incompatible with the present state of the
neighborhood’s development or be impractical or premature because of the condition of the
surrounding property.
(4) Construction of the improvements would create a hazardous or defective condition.
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1 (5) Improvement would be to a street desionated by Resolution of the City Council as an
2 “Alternative Desion Street” and subiect to the “Alternative Street Design Aporoval Process”.
3 (6) Improvements are not continuous with existing improvements and construction would be
impractical. 4
5 II SECTION 6: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by
6 the revision of Section 18.40.090 to read as follows!
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8 II 18.40.090 Conditions of deferral.
9 Any deferral of improvements pursuant to Section 18.40.070 shall be conditioned on the filing with
IO the city manager of] a neinhborhood improvement aoreement
11 Jin a form satisfactory to the city attorney which
12 provides that the property owner will construct the improvement at such time as an improvement
13 district or neiqhborhood improvement prooram is adopted. w to be
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manager is authorized to execute such agreement on behalf of the city. Such agreement must be
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received and recorded prior to issuance of a building permit. If the building permit is not exercised,
16 the city manager is authorized to execute a release of ken-agreement for the subject property.
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I8 Prior to the recordation of1 a neiohborhood improvement
I9 aoreement, there shall be paid to the engineering department a fee as set by resolution of the city
20 council for the processing of the agreement.
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22 SECTION 7: That Title 18, Chapter 18.40, Section 78.40.130 of the Carlsbad Municipal
23 Code is repealed. II
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9 EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after its adoption and
IO the City Clerk, City of Carlsbad, shall certify to the adoption of this ordinance and cause it to be
11 published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen
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(15) days after its adoption.
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14 INTRODUCED AND FIRST READ at a regular meeting of said City Council held on the
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day of , 2000, and thereafter,
16 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
17 held on the of day , 2000 by the following vote, to wit:
18 AYES:
19 NOES:
20 II ABSENT:
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22 CLAUDE A. LEWIS, Mayor
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24 /I ATTEST
25 II 26 /I LORRAINE M. WOOD, City Clerk
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(SEAL)
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ORDINANCE NO. NS-556
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, REPEALING URGENCY ORDINANCE
NO. NS-516 PROHIBITING THE ISSUANCE OF BUILDING AND
GRADING PERMITS IN SUBDIVISIONS FROM EL CAMINO REAL
WEST TO THE OCEAN BETWEEN AGUA HEDIONDA AND
BUENA VISTA LAGOONS AND REPEALING ORDINANCE NO.
NS-527 WHICH EXTENDED ORDINANCE NO. NS-516
WHEREAS, on November 2, 1999, Council approved an urgency ordinance prohibiting the
issuance of building and grading permits in the Northwest Quadrant pending a report and
8 recommendations of a citizens committee to study sidewalk and street improvement standards;
9 and
10 WHEREAS, Council appointed a 15-member citizens committee to study streets and
11 sidewalks in the area west of El Camino Real to the ocean, between Agua Hedionda and Buena
12 Vista Lagoons; and
13 WHEREAS, Council directed the Committee to consider all relevant issues in formulating
14 its recommendations to the City Council including, but not limited to, aesthetics, neighborhood
15 compatibility and preferences, safety, liability, environmental impacts, and to consider all
applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and
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the like; and
17 WHEREAS, the Committee gave its report and recommendation to City Council on March
I8 7,200O; and
19 WHEREAS, Council has taken action regarding the Committee’s report and
20 recommendations and has determined that potential development no longer represents a current
21 and immediate threat to the public health, safety and welfare.
22 NOW, therefore, the City Council of the City of Carlsbad, California, does ordain as
23 fOllOWS:
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24 II SECTION 1. That the above recitations are true and correct.
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1 SECTION 2. This ordinance hereby repeals in their entirety Ordinances No. NS-516 and
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Ordinance No. NS-527 pursuant to Section 2 of Ordinance No. NS-527.
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4 EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after its adoption and
the City Clerk, City of Carlsbad, shall certify to the adoption of this ordinance and cause it to be
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published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen
6 (15) days after its adoption.
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8 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
g held on the day of , 2000 by the following vote, to wit:
IO AYES:
11 NOES:
12 ABSENT:
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CLAUDE A. LEWIS, Mayor
I5 ATTEST:
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I/ LORRAINE M. WOOD, City Clerk
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(SEAL)
1 RESOLUTION NO. 2000-236
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE DESIGNATION OF
ALTERNATIVE DESIGN STREETS, THE ALTERNATIVE STREET
DESIGN APPROVAL PROCESS, AND THE ALTERNATIVE
DESIGN CRITERIA.
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WHEREAS, on November 2, 1999, the City Council appointed a 15-member Citizens
6 Committee to study streets and sidewalks in the area west of El Camino Real to the ocean,
7 letween Agua Hedionda and Buena Vista Lagoon; and
8 WHEREAS, Council directed the Committee to consider all relevant issues in formulating
9 ts recommendations to the City Council including, but not limited to, aesthetics, neighborhood
IO :ompatibility and preferences, safety, liability, environmental impacts, and to consider all
11 applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and
12 he like; and
13 WHEREAS, the Committee gave its report and recommendation to City Council on March
14 7,2000; and
WHEREAS, the Committee identified streets to be considered “Alternative Design
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streets”, recommended an “Alternative Street Design Approval Process”, and identified
16 Alternative Design Criteria”; and
17 WHEREAS, Council concurs with the recommended Alternative Design Streets,
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ilternative Street Design Approval Process and Alternative Design Criteria.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
Zalifornia, as follows:
21 I. That the above recitations are true and correct.
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2. Alternative Design Streets as designated, the Alternative Street Design Approval
Process and Alternative Street Design Criteria, as presented in the Street & Sidewalk Policy
Committee Final Report, are hereby approved.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the day of , 2000 by the following vote, to wit:
AYES:
NOES:
ABSENT:
CLAUDE A. LEWIS, Mayor
ATTEST
II LORRAINE M. WOOD, City Clerk
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(SEAL)
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1 RESOLUTION NO. 2000-237
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, RESPONDING TO STREET &
SIDEWALK COMMITTEE RECOMMENDATIONS
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WHEREAS, on November 2, 1999, the City Council appointed a 15-member Citizens
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Committee to study streets and sidewalks in the area west of El Camino Real to the ocean,
between Agua Hedionda and Buena Vista Lagoon; and
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WHEREAS, Council directed the Committee to consider all relevant issues in formulating
its recommendations to the City Council including, but not limited to, aesthetics, neighborhood
compatibility and preferences, safety, liability, environmental impacts, and to consider all
10 applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and
11 the like; and
12 WHEREAS, the Committee gave its report and recommendation to City Council on March
7,200O; and 13
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WHEREAS, City Council directed staff to evaluate the report and return to Council with
recommendations for implementation; and
15 WHEREAS, staff has completed its analysis and has developed associated policy
16 changes and implementation strategies for the Committee’s recommendation; and
17 WHEREAS, said policy changes and recommendations are submitted by staff for Council
18 consideration and acceptance.
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WHEREAS, City Council agrees with certain policy changes and implementation strategies
presented in the Staff Analysis of Street 8. Sidewalk Recommendations.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
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1. That the above recitations are true and correct.
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The City Council hereby responds to the recommendations presented herein as
follows:
A. Street & Sidewalk Committee Recommendation No. 1:
General Plan Amendment
Council Response
Council hereby refers committee recommendation to Planning Department for
consideration in the annual review of the General Plan and other ongoing study
efforts.
B. Street 8 Sidewalk Committee Recommendation No. 2:
Sound Walls
Council Response
Council hereby directs staff to monitor the environmental review process of the
Caltrans l-5 widening project and advise council on appropriate measures to
mitigate sound impacts.
C. Street & Sidewalk Committee Recommendation No. 3
Underground Utilities
Council Response
Council hereby directs staff to. review the Underground Utilities Program and
return to Council on the existing status of the program and options ‘for
accelerating undergrounding during Fiscal Year 2000-2001.
D. Street & Sidewalk Committee Recommendation No. 4
Traffic Calming
Council Response
Council hereby directs the Residential Traffic Management Program Committee
to review and respond to this issue as part of their work program.
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E. Street & Sidewalk Committee Recommendation No. 8
Dedications
Council Response
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Council Directs staff that at such time as rights-of-way are found to be in
excess of that required, the excess will be presented to Council to be
quitclaimed. 6
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F. Street & Sidewalk Committee Recommendation No. 10
Future Improvement Agreements
Council Response
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Council hereby directs staff to issue building permit applicants a notification of
potential improvement or “Neighborhood Improvement Agreement” obligation at
receipt of the building permit application.
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G. Adopt “Neighborhood Improvement Agreement”
Council hereby approves and adopts the “Neighborhood Improvement
Agreement”. Changes to this agreement may be made with approval of the
City Attorney.
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
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qeld on the
AYES:
NOES:
ABSENT:
day of
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24 CLAUDE A. LEWIS, Mayor
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28 -‘ORRAINE M. WOOD, City Clerk
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, 2000 by the following vote, to wit:
(SEAL)
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STAFF ANALYSIS OF
STREET & SIDEWALK POLICY COMMITTEE
RECOMMENDATIONS
June27,2000
GENERAL PLAN AMENDMENT
1. The Committee recommends that a General Plan Amendment be considered to reflect a
slowdown and management of growth in the Northwest Quadrant. Lot size and densities
will be an element of this amendment. The Committee recommends an adoption of a
philosophy distinguishing the Northwest Quadrant as a unique, quaint, and special
community. This philosophy would recognize the necessity for the protection and
preservation of the qualities unique to each area. These qualities to include, but not be
exclusive of: tree-lined narrower meandering streets, alternative pedestrian pathways,
traffic calming and parking options. Special attention to the quality of life the residents
have come to expect as delineated in the Municipal Code current ordinance Section
18.40. Dedications and Improvements. Specifically section 18.40.100 waiver or
modifications. “The street fronting on the subject property has already been improved to
the maximum feasible and desirable state, recognizing there are some such streets
which may have less than standard improvements when necessary to preserve the
character of the neiqhborhood and to avoid unreasonable interference with such things
as trees, wall, yards and open space.
STAFF RESPONSE
This recommendation deals with a number of issues that are being addressed in
ongoing work programs. The Planning Department recently completed a report on infill
development. The Council has initiated a Residential Traffic Management Program.
Ongoing studies are dealing with the Planned Development Ordinance with a focus on
street standard options and walkable communities.
The references to Section 18.40.100 are dealt with through the Alternative Design
process. Approval of the Alternative Design Process may create an acceptable do-
nothing option here.
Growth management is a facility-based program adopted through a vote of the City.
Revisions to growth management would require a vote of the citizens.
It is staffs recommendation that concerns raised in this recommendation be referred to
ongoing Planning efforts and the annual General Plan Review Process.
SOUND WALLS
2. The Committee recommends sound walls on freeways, 1) City should begin negotiating
with Caltrans for construction of soundwalls as part of freeway widening, and 2) City
(or Caltrans) should construct sound walls where no freeway widening is anticipated.
STAFF RESPONSE
Caltrans has begun a project to widen Interstate 5 from Del Mar through Oceanside. . Current funding for the project will provide for freeway widening to Palomar Airport
Road. Caltrans anticipates appropriating funds for the remainder of widening north of
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Palomar Airport Road within the next few years. Caltrans anticipates beginning a five-
year environmental review process for the entire project in the Summer of 2000. This
will be followed by a two-year design phase before construction, which is set to begin in
2007-08. The project is estimated to be complete by the year 2020.
Caltrans conducted a preliminary noise study in 1993 that identified nine potential
soundwall locations along l-5 through the City of Carlsbad. Caltrans will engage in
additional noise studies estimated to take place during the second year of the
environmental review (2001-02). Caltrans anticipates revisiting the preliminary soundwall
locations, as well as any additional recommendations developed during the process.
All noise studies conducted by Caltrans will include public meetings and public hearings
regarding noise abatement and the construction of soundwalls along the l-5 corridor.
Caltrans will coordinate with affected cities, neighborhoods, and residences to ensure
that the public has an opportunity to participate in determining whether the structures
are necessary, reasonable, and feasible. Final locations for soundwalls to be
constructed as part of the freeway widening project will not be determined until the
completion of the noise study portion of the environmental review in 2001-02.
Soundwalls should not be constructed in advance of the widening project. It is
appropriate to defer this issue to be addressed as a part of the widening environmental
process.
UNDERGROUND UTILITIES
3. The committee recommends that “The Council direct staff to explore alternative funding
approaches to accelerate the undergrounding of overhead utilities”.
STAFF RESPONSE
Staff recommends that Council request staff to review the Underground Utilities
Program and return to Council on the existing status of the program and options for
accelerating the undergrounding program.
TRAFFIC CALMING
4. The Committee recommends:
a. Based upon our review of the current state-of-the-art street design in other
communities, the Committee recommends that instead of a single standard, the City
of Carlsbad utilize different design methodologies committed to preserving the
existing nature and character of each neighborhood.
b. “Based upon the public testimony we have heard, the Committee has found that one
of the most important concerns to the residents of “Olde Carlsbad” is excessive
traffic speed. Vehicular traffic speed should be calmed using the state-of-the-art
design methods, such as traffic lane narrowing, pseudo-shoulders, improved
signage, textured paving, rumble strips, Botts’ Dots’, Traffic-Circles, and Elephant
Ears.”
STAFF RESPONSE
Staff would recommend that the Street & Sidewalk Committee Final Report be
distributed to the Residential Traffic Management Committee.
5. The committee encourages the City Council to form a Traffic Calming Committee as a
follow-up to this committee’s efforts.
STAFF RESPONSE
Council has appointed a Residential Traffic Management Committee to explore traffic
calming measures.
DEDICATIONS
6. The Committee recommends that the Council adjust the Municipal Code requirement to
dedicate rights-of-way as a condition of a building permit exceeding $10,000 in building
permit by indexing the threshold from 1992 to increases in the International Conference
of Building Officials (ICBO) valuation amount.
STAFF RESPONSE
Staff concurs in this recommendation. This has been incorporated into the ordinance
for adoption.
7. The Committee recommends that street right-of-way dedication be required only for
building permits that create new residential dwelling units. Residential remodels would
be exempt from the requirement.
STAFF RESPONSE
State law and generally accepted practice recognizes the obligation of each property
owner to provide frontage rights-of-way and improvements to access property and provide continuity for the provision of services to the neighborhood and the community
as a whole. These dedications need to be consistent with accepted City standards,
unless they are modified by specific Council action. Consistent with committee recommendation number 8, at such time as Alternative Design is adopted identifying a
reduced right-of-way requirement, the excess dedication can be returned.
Staff recommends that right-of-way dedications be retained on residential remodels, but the threshold be increased to $15,000 and be indexed consistent with recommendation
number 6. Staff would further recommend that the Code be revised to allow irrevocable
offers of dedication to be executed. This would allow the owner to retain title to the land until the rights-of-way are actually needed for construction of improvements. Staff’s recommendation has been incorporated into the ordinance for adoption.
8. The Committee recommends that at such time as rights-of-way are found to be in
excess of that required, the excess will be quitclaimed.
STAFF RESPONSE
This recommendation is consistent with current City practice. Staff supports this
recommendation. .
FUTURE IMPROVEMENT AGREEMENTS
9. The Committee recommends that Future Improvement Agreements apply to only new construction. Remodeling of existing residential dwelling units would be exempt from improvement requirements.
STAFF RESPONSE
As with the dedication requirement, frontage improvements are commonly recognized
as a property owner obligation. To the extent that improvements are inadequate to meet the needs of the neighborhood and the community as a whole, the Council needs a mechanism to ensure the ability to gain property owner participation should improvements be required.
Past practice of the City has been to obtain Future Improvement Agreements (FIA’s). These documents establish a lien obligation on the property and require installation of improvements upon demand of the City. The FIA represents a lien on the property, is
recorded and runs with the property. FIA’s have been invoked in conjunction with City
improvement projects. This has given rise to an equity concern that some citizens have
been required to install and pay for improvements through FIAs, while their neighbors
may not have been required to pay. A more equitable approach would be to form
assessment districts and spread the cost equitably throughout the block. This approach is more consistent with a general obligation for all property owners, will allow a more equitable distribution where an alternative design varies for different frontages and
would better lend itself to payment for improvements over time.
Staff working with an assessment attorney has developed a “Neighborhood
Improvement Agreement”. Under this agreement, the building permit applicant agrees to
not protest the formation of an assessment district on their block and to pay their fair
share of improvements.
This approach has the advantage of a more equitable distribution of cost and a
reduction of cost to the City as a whole, but it will require an extensive public process to
define and install needed improvements. In some instances, this may be very difficult to
accomplish and frustrate needed improvements.
Staff recommends that the former Future Improvement Agreement be replaced with a
“Neighborhood Improvement Agreement”, that improvement requirements continue to
be recognized for residential remodels, and that agreements be required when permits
exceed $75,000 in building permit valuation. This amount to be indexed to changes in
the ICBO valuation schedule. $75,000 is an increase over the existing $50,000. This
recommendation has been incorporated into the ordinance for adoption.
10. The Committee recommends that building permit applicants be issued a notification of
potential improvement or Future Improvement Agreement obligation at receipt of the
building permit application.
STAFF RESPONSE
. Staff supports this recommendation.
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11.
12.
13.
14.
The Committee recommends Future Improvement Agreements be made subordinate to
homeowner’s mortgages or trust deed financing at present and in the future. Staff will
review language with the City Attorney’s office to make sure that the agreement is
subordinate to trust deeds.
STAFF RESPONSE
Should the FIA continue, staff supports this recommendation to revise the language to
make that intent clear. The intent is consistent with current practice.
The Committee recommends that property owners be given 90 days to respond to
demands to comply with Future Improvement Agreements rather than 30 days as
currently contained in the agreement.
STAFF RESPONSE
If the FIA is retained, staff supports this recommendation.
The Committee recommends the cost of all improvements be equitably
all of the beneficiaries, and that no FIA exceed the property owner’s
improvement cost.
allocated among
fair share of the
STAFF RESPONSE
Staff supports this recommendation. Assessment proceedings will assist in ensuring that
this intent is complied with.
The Committee recommends that the City retain its current policy of not building isolated
improvements to curbs and sidewalks. The Committee recommends that the portion of
Section 18.40.070 as amended in November 1999 pertaining to the policy regarding the
deferral of improvement requirements remain as the permanent policy after the building
moratorium has been lifted.
STAFF RESPONSE
Staff supports this recommendation and would recommend that Municipal Code section
18.40.070, Deferral of Improvement Requirements, be amended by the addition of (5)
and (6) to read: (5) “Improvement would be to a street designated by Resolution of the
City Council as an ‘Alternative Design Street’ and subject to the ‘Alternative Street
Design Approval Process”‘, and, (6) “Improvements are not continuous with existing
improvements and construction would be impractical.”
The revised code section presented for Council action includes this section for Council
adoption.
STAFF
DEDICATION, IMPROVEMENTS AND
REPORT
FUTURE IMPROVEMENT AGREEMENT
SURVEY RESULTS
PURPOSE OF THE SURVEY
To determine how other agencies address the issues of dedications of right-of-way,
improvement requirements and future improvement agreements (FIA).
AGENCIES SURVEYED
Staff was asked to survey all San Diego County agencies and three municipalities in each of
Riverside County, Orange County and the rest of California (See attached Survey Results for
exact agencies used). Agencies surveyed outside San Diego County (except City of Riverside)
were surveyed based one or more of the following factors:
1. Agency population was similar to the City of Carlsbad at either current or estimated
buildout
2. Agency showed greater than 25% estimated population growth since 1990 ’
Note: Not all agencies surveyed outside San Diego County responded. Only agencies that
responded to survey were included in the survey results.
INFORMATION REQUESTED
Staff asked each agency if they required dedication of right-of-way, improvements or future
improvement agreements as a condition to the issuance of building permits, similar to Carlsbad
or otherwise. Each agency was given a copy the City of Carlsbad Municipal Code Chapter
18.40 to assist in making these determinations.
INFORMATION PROVIDED
Most agencies responded that they do require dedication of right-of-way, improvements or FlAs
as a condition to the issuance of a building permit. However, most ofthe agencies also
reported a variety of differing conditions for any of these requirements. Some agencies always
require dedication while others never require dedication. Certain agencies place requirements
on all residential development, while others only on “new” residential development. In a few
agencies certain types or sizes of structures were exempt from dedication and improvement
requirements while in others no structures were exempt (See attached Survey Results).
CONCULSION
The results of this survey do not support either requirement of or exemption from dedications,
improvements of future improvement agreements. The results of the survey simply provide a
true variety of how different public agencies address the issues of dedications of right-of-way,
improvement requirements and future improvement agreements. The committee should be
able to use the information presented to determine how best to recommend related policy
changes to City Council as these issues pertain to the City of Carlsbad.
’ Population data was gathered from the Historical CitKountv Potdation Estimates, 1991-1999. with 1990 Census
Counts: California Department of Finance. Demoprauhic Research Unit.
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RECORDING REQUESTED BY:
Department of Public Works
CITY OF CARLSBAD
1635 Faraday Avenue
Carlsbad, CA 92008
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Space above this line for Recorder’s use.
CITY OF CARLSBAD
NEIGHBORHOOD IMPROVEMENT AGREEMENT
Permit No.
Parcel No.
NIA No.
THIS AGREEMENT (the “Agreement”) is made this day of
-9 20-by and between the City of Carlsbad, a municipal corporation (the “City”),
and (the “Owner”).
RECITALS
1. Owner is the owner of real property located in the City of Carlsbad, California and
described in Exhibit A attached hereto and incorporated herein by this reference
(the “Property”).
2. . Owner has applied to the City for issuance of the above identified permit to
authorize the development of the Property (the “Development Permit”).
3. The City has determined that additional public improvements and additional right-
of-way for such public improvements may be necessary in the future in order to
allow Owner to proceed with development and, therefore, the Property would be
suitable for development as requested by Owner if certain public improvements
as described in Exhibit B attached hereto and incorporated herein by this
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4.
5.
6.
reference (the.“lmprovements”) are constructed and the rights-of-way for such
Improvements are dedicated to the City.
The Municipal Code of the City of Carlsbad requires either the dedication of the
necessary rights-of-way for and the construction by Owner of the Improvements
or an agreement for the same for certain developments as a condition of
approval of the Development Permit.
The Owner has requested that the City approve the Development Permit prior
the construction of the Improvements.
The City is willing to approve the Development Permit prior to the construction of
the Improvements as requested by the Owner if Owner (a) grants to the City an
irrevocable offer of dedication of the right-of-way necessary for the Improvements
and-the subsequent maintenance and operation of the Improvements (the “Right-
of-Way”) after acceptance of the Improvements by the City and (b) approves and
consents to the formation of an assessment district to include the Property for the
purpose of financing the construction of the Improvements.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
Section 1. Recitals. The foregoing recitals are true and correct.
Section 2. City’s Obligations. The City shall approve the Development Permit
promptly following the occurrence of each of the following events:
A. the execution of this Agreement by the Owner; and
B. receipt by the City of an irrevocable offer of dedication for the Right-of-
Way in a form satisfactory to the City Attorney.
Section 3. Owner’s Obligations.
Section 3.01. Owner’s Consent to and Approval of Formation of an
Assessment District and Levy of Assessments. In consideration for the approval of the
Development Permit prior to the completion of the construction of the Improvements,
Owner hereby consents to and approves of:
A. the inclusion of the Property in an assessment district which may be formed by
the City Council of the City for the purpose of financing the construction of the
Improvements (the “Assessment District”);
B. the levy of an assessment against the Property (the “Assessment”) in an amount
not to exceed the estimated cost of construction of the Improvements, together with the
estimated incidental costs of such construction and the estimated costs of formation of
the Assessment District and issuance of any bonds to be issued to represent the
Assessment. The foregoing costs constituting the Assessment are set forth in Exhibit C
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attached hereto and incorporated herein by this reference. The Assessment shall be
subject to adjustment for inflation from the date first written hereinabove until the date
the Assessment is confirmed and levied by the increase in the Construction Cost Cost
Index for Los Angeles as contained in the Engineering News Record or, if the
Construction Cost Index for Los Angeles is no longer published, an equivalent index
reasonably selected by the City Engineer. In granting the consents and approvals set forth in
this Section 3., Owner is acting for and on behalf of Owner, the Owner’s successors, heirs,
assigns, and/or transferees and intends that such consents and approvals shall be binding upon
each and every such person.
Except as otherwise provided for in this Agreement, the consents and approvals
given by Owner shall be irrevocable.
Section 3.02 Owner’s Grant of a Proxy to the Citv fo’r Assessment Ballot
Procedure. Owner hereby grants to the City a proxy to act for and on behalf of Owner,
the Owner’s successors, heirs, assigns, and/or transferees for the limited purpose of
completing and submitting an assessment ballot in support of the levy of the
Assessment in the proceedings to form the Assessment District.
In granting such proxy, Owner is acting for and on behalf of Owner, the Owner’s
successors, heirs, assigns, and/or transferees and intends that such proxy shall be
binding upon each and every such person.
Except as otherwise provided for in this Agreement, the proxy granted by Owner
shall be irrevocable.
Section 4. Owner’s Representations and Waiver of Rights.
Section 4.01
follows:
Owner’s Representations. Owner hereby represents as
A. Owner understands and acknowledges that:
1. Article XIIID of the Constitution of the State of California (“Article
XIIID”) and the Proposition 218 Omnibus Implementation Act (Government
Code Section 53750 and following) (the “Implementation Act”) (Article
XIIID and the Implementation Act may be referred to collectively as the
“Assessment Law”) establish certain procedures and requirements which
apply when any agency such as the City considers the levy of
assessments upon real property.
2. The requirements established by the Assessment Law include the
following:
a. The proportionate special benefit derived by each parcel to be
assessed must be determined in relationship to the entirety of the
capital cost of the improvement for which the assessment is to be
levied ;
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b. No assessment may be imposed on any parcel which
exceeds the reasonable cost of the proportional special benefit
conferred on that parcel from the improvement for which the
assessment is to be levied;
C. Only special benefits are assessable; and
d. Parcels within an assessment district that are owned or used
by any agency, the State of California or the United States of
America shall not be exempt from assessment unless the agency
proposing to levy the assessment can demonstrate by clear and
convincing evidence that those publicly owned parcels in fact
receive no special benefit from the improvement for which the
assessment is being levied.
3. The procedures established by the Assessment Law include:
a. The agency which proposes to levy an assessment (the
“Agency”) shall identify all parcels which will have a special benefit
conferred upon them from the improvement for which the
assessment is proposed to be levied and upon which an
assessment is proposed to be imposed.
b. All assessments must be supported by a detailed engineer’s
report prepared by a registered professional engineer certified by
the State of California.
C. Prior to levying a new assessment, the Agency must give
written notice by mail (the “Assessment Notice”) to the record
owner, i.e., the owner of a parcel whose name and address
appears on the last equalized secured property tax roll, of each
parcel proposed to be assessed. The Assessment Notice must
include: (i) the total amount of the proposed assessment
chargeable to the entire assessment district, (ii) the amount
chargeable to the record owner’s parcel, (iii) the duration of the
assessment payments, (iv) the reason for the assessment, (v) the
basis on which the amount of the proposed assessment was
calculated, and (vi) the date, time and location of a public hearing
on the proposed assessment.
d. The Assessment Notice must contain an assessment ballot
that includes a place where the person returning the assessment
ballot may indicate his or her name, a reasonable identification of
the parcel, and his or her support or opposition to the proposed
assessment. The Assessment Notice must also include, in a
conspicuous place, a summary of the procedures for the
completion, return and tabulation of assessment ballots.
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e. At the time, date and place stated in the Assessment Notice,
the Agency shall conduct a public hearing upon the proposed
assessment. At such public hearing, the Agency shall consider all
objections or protests, if any, to the proposed assessment. At such
public hearing, any interested person shall be permitted to present
written or oral testimony.
f. At the conclusion of the public hearing, the Agency shall
tabulate the assessment ballots submitted, and not withdrawn, in
support or opposition to the proposed assessment. If there is a
majority protest against the imp’osition of a new assessments, the
Agency may not impose the assessment. A majority protest exists if
the assessment ballots submitted, and not withdrawn, in opposition
to the proposed assessment exceed the assessment ballots
submitted, and not withdrawn, in favor of the proposed assessment.
In tabulating the assessment ballots, the assessment ballots shall
be weighted by the amount of the proposed assessment to be
imposed upon each parcel for which an assessment ballot was
submitted.
4. The description of the requirements and procedures established by
and contained in the Assessment Law set forth above are intended only to
summarize certain of such requirements and procedures.
5. The City would not agree to issue the Development Permit prior to
the construction of the Improvements unless the City is assured that it will
be legally able to impose the Assessment on the Property. The assurance
of the City’s legal ability to impose the Assessment on the Property is both
a material inducement to and a material consideration for the City to enter
into this Agreement and agree to issue the Development Permit prior to
the construction of the Improvements.
B. Owner has had a reasonable opportunity to thoroughly read and review
the Assessment Law in its entirety and has further had a reasonable
opportunity to consult with Owner’s attorney regarding the Assessment
Law and the terms and conditions of this Agreement.
Section 4.02 Waiver of Rights
A. In consideration of the approval by the City of the Development Permit
prior to the construction of the Improvements, Owner hereby waives
Owner’s rights under the Assessment Law to:
1. object or protest the ordering by the City of the construction of the
Improvements and the imposition of the Assessment at such public
hearing so long as the amount of the Assessment does not exceed the
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amount set forth in Exhibit C hereto adjusted for inflation pursuant to
Section 3.01 B above;
2. submit an assessment ballot in support of or in opposition to the
imposition of the Assessment so long as the amount of the Assessment
does not exceed the amount set forth in Exhibit C hereto adjusted for
inflation pursuant to Section 3.01B above; and
3. file or bring any protest, complaint or legal action of any nature
whatsoever challenging the validity of the proceedings to form the
Assessment District and/or the validity of the imposition of the Assessment
on the Property.
B. In order that the City may be assured of its ability to legally impose the
Assessment on the Property and, therefore, be willing to enter into this
Agreement and agree to approve the Development Permit prior to the
construction of the Improvements, Owner represents and warrants that
Owner has knowingly, intelligently and voluntarily waived for and on behalf
of Owner, Owner’s successors, heirs, assigns and/or transferees, each
and every one of the rights specified in Section 4.02A above.
Section 5. Alternative Satisfaction of Owner’s Obligations
Owner’s obligations under Section 3 above may be terminated by installing and
constructing, or causing the construction, of the Improvements pursuant to the
provisions of this Section 5 without cost or expense to the City in accordance with plans
and specifications approved by the City Engineer.
The construction of the Improvements shall be subject to inspection by the City
and such construction must be completed to the satisfaction of the City Engineer. The
Owner shall pay for any such inspection of the Improvementsas may be required by the
City Engineer.
The construction of the Improvements must be completed prior to the initiation
by the City of proceedings to form the Assessment District and impose the Assessment
on the Property.
If the construction of the Improvements is completed in accordance with the
provisions of this Section 5, Owner’s obligations under Section 3 above shall be
deemed to have been terminated and, at Owner’s request, a release of this Agreement
shall be recorded in the office of the County Recorder of the County of San Diego.
In the event that the Owner elects to construct, or cause the construction of the
Improvement pursuant to this Section 5, Owner will at all times up to the completion and
acceptance of the Improvement by the City, give good and adequate warning to the
traveling public of any dangerous or defective conditions of public property.
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Section 6. General Provisions.
Section 6.01 Conflict with Other Aoreements or Requirements of the City.
Except as specifically provided in this Agreement, nothing contained herein shall be
construed as releasing Owner from any condition of development of the Property or
requirement imposed by any other agreement with or requirement of the City.
Section 6.02 General Standard of Reasonableness. Any provision of this
Agreement which requires the consent, approval, discretion or acceptance of any party
hereto or any of their respective employees, officers or agents shall be deemed to
require that such consent, approval or acceptance not be unreasonably withheld or
delayed, unless such provision expressly incorporates a different standard.
Section 6.03 Entire Agreement; Amendment. This Agreement contains all
of the agreements of the parties hereto with respect to the matters contained herein and
no prior or contemporaneous agreement or understandings, oral or written, pertaining to
any such matters shall be effective for any purpose. No provision of this Agreement
may be modified, waiver, amended or added to except by a writing signed by the party
against which the enforcement of such modification, waiver, amendment or addition is
or may be sought.
Section 6.04 Notices. Any notice, payment or instrument required or
permitted by this Agreement to be given or delivered to either party shall be deemed to
have been received when personally delivered or seventy-two (72) hours following
deposit of the same in any United States Post Office in California, registered or certified,
postage prepaid, addressed as follows:
Owner:
City: City of Carlsbad
Attn: City Manager
Each party may change its address for delivery of notice by delivering written notice of
such change of address to the other party.
Section 6.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the parties hereto.
Section 6.06 Governino Law. This Agreement and any dispute arising
hereunder shall be governed by and interpreted in accordance with the laws of the State
of California.
Section 6.07 Waiver. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by any other party, or the failure
by a party to exercise its rights under the default of any other party, shall not constitute
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a waiver of such party’s right to insist and demand strict compliance by any other party
with the terms of this Agreement thereafter.
Section 6.08 Sinnular and Plural: Gender. As used herein, the singular of
any work includes the plural, and terms in the masculine gender shall include the
feminine.
Section 6.09 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
Section 6.10 Construction of Agreement. This Agreement has been
reviewed by legal counsel for both the City and the Owner and shall be deemed for all
purposes to have been jointly drafted by the City and the Owner. No presumption or rule
that ambiguities shall be construed against the drafting party shall apply to the
interpretation or enforcement of this Agreement. The language in all parts of this
Agreement, in all cases, shall be construed as a whole and in accordance with its fair
meaning and not strictly for or against any party and consistent with the provisions
hereof, in order to achieve the objectives of the parties hereunder. The captions of the
sections and subsections of this Agreement are for convenience only and shall not be
considered or referred to in resolving questions of construction.
Section 6.11 Recitals; Exhibits. Any recitals ,set forth above and any
attached exhibits are incorporated by reference into this Agreement.
Section 6.12 Authoritv of Signatories. Each signatory and party hereto
hereby represents and warrants to the other party that it has legal authority and capacity
and direction from its principal to enter into this Agreement, and that all resolutions
and/or other actions have been taken so as to enable such party to enter into this
Agreement.
Section 6.13 Hold Harmless. Until such time as the City accepts the
Improvements if Owner elects to construct, or cause the construction of the
Improvements pursuant to Section 5 above, the City shall not, nor shall any officer or
employee thereof, be liable or responsible for any accident, loss or damage happening
or occurring to the Improvements prior to the completion of the construction thereof and
the acceptance of such Improvements by the City; nor shall the City, nor any officer or
employee thereof, be liable for any persons or property injured by reason of
construction of the Improvements, but all of said liabilities shall be assumed by the
Owner and the Owner’s successors, heirs, assigns or transferees, and they shall save
the City harmless from, and indemnify the City against, any and all claims, suits and
liabilities of or to any person or property injured or claiming to be injured as a result of
the construction of the Improvements.
Section 7. Covenant Running with the Land. The parties hereto intend that the
burdens and obligations of the Owner under Section 3 above constitute a covenant
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running with the land and that such covenant shall be binding upon all transferees of the
Property.
[End of page. Next page is signature page.]
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[Signature page]
CITY OF CARLSBAD,
A municipal corporation of the
State of California
RAYMOND R. PATCHETT
City Manager
By:
LLOYD B. HUBBS, P.E.
Public Works Director
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:
Deputy City Attorney
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[Signature Page Continued]
Signed by the Owner this day of I 20
OWNER:
By:
(Sign here.)
(Print name here)
(Title and organization of signatory)
By:
(Sign here.)
(Print name here)
(Title and organization of signatory)
(Proper notary acknowledgement of execution by Owner must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or
assistant treasurer must sign for corporations. Otherwise, a corporation must attach a
resolution certified by the secretary or assistant secretary under corporate seal
empowering the officer(s) signing to bind the corporation.)
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
A -1
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EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
B -1
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EXHIBIT C
THE ASSESSMENT
c -1
City of Carlsbad
July 14, 2000
Mr Kip McBane 2691 Crest Drive
Carlsbad, CA 92008
~~*A@lndatt4m#~ :
For the Information of the:
crrYcouNcIL
AsstCM-CAdC4-/
D&e 7- I 1 City Mwv$&
STAFF RECOMMENDATIONS ON THE JMPLEMENTATION OF THE STREET AND
SIDEWALKS COMMITTEE FINAL REPORT
Dear Mr McBane:
Well the day is almost here. As you know, staff will be making recommendations to the City
Council regarding implementation of the Street & Sidewalk Policy Committee Final Report at
6:OOp.m. Tuesday, July 18, 2000. Attached for your review is a copy of the agenda bill and
exhibits staff will present to Council.
This is truly a landmark time in the history of Carlsbad, and you have been a part of it! We
thank you again for your participation in the committee process and strongly urge you to read
through the material and attend the Council meeting as a representative of the Street &
Sidewalk Policy Committee. It is only with input from community members that the City Council can make the most informed decisions.
If you have any questions about the agenda bill or exhibits, please feel free to call Steve Didier
or me at 760-602-2730.
Public#Vorks Director
LBH:sd
c: City Manager
City Attorney
Public Works Manager - Doug Duncanson
.
1635 Faraday Avenue - Carlsbad. CA 92008-7314 - (760) 602-2730 - FAX (760) 602-8562 @
~ MR KIP MCBANE
2891 CREST DRIVE
CARLSBAD CA 92008
MR PAUL GAMACHE
1436 PINE AVENUE
CARLSBAD CA 92008
MR BOB LEGER 4087 SUNNYHILL DRIVE.
CARLSBAD CA 92008
MR BAILEY NOBLE
5470 LOS ROBLES DRIVE
CARLSBAD CA 92008
MR JACK KUBOTA
536 MERIDIAN WAY
CARLSBAD CA 92009
MS PAM WISCHKAEMPER
4039 SUNNYHILL DRIVE
CARLSBAD CA 92008
MS RUTH LEWIS
2001 AVENUE OF THE TREES
CARLSBAD CA 92008
MR GARY PIRO
2641 VALEWOOD AVENUE
CARLSBAD CA 92008
MS ZELL. DWELLEY
2771 WILSON STREET
CARLSBAD CA 92008
MR CLARENCE SCHLEHUBER
4085 SUNNYHILL DRIVE
CARLSBAD CA 92008
MR DOUG CHARTIER
2697 WILSON STREET
CARLSBAD CA 92008
MS LORI WICKHAM
4055 PARK DRIVE
CARLSBAD CA 92008
MR JOE SPAN0
2390 SPRUCE STREET CARLSBAD CA 92008
MR JOE GALLAGHER
1165 HOOVER STREET
CARLSBAD CA 92008
MR JOHN MAMAUX
1393 BASSWOOD DRIVE
CARLSBAD CA 92008
JACK C. DEBES, PH.D.
AGENDA ITEM #
City Council Members and Mayor
1200 Carlsbad Village Drive
Carlsbad, CA 92008
c: Mayor
city council
July 12,200O City Manager
City Attorney
city c&w&
Dear Council Members and Mayor:
This council did not meet last week as we were celebrating our Declaration of
Independence from an oppressive empire. Fifteen years after our forefathers declared our
independence from the British Crown the first 10 amendments to the Constitution were
ratified. This document, known as the Bill of Rights forms the basis of what Americans
have spent the last two centuries living and dying for. The Fourth Amendment states:
The r&ht of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warants
shall issue, but upon probable cause, supported by Oath or aBikmaubn, and
particularly descn’bing the place to be searched, and the persons or things to be
seized.
This brings me to a proposed piece of legislation for the City of Carlsbad called the NIA
(Neighborhood Improvement Agreement), which calls for the so called “dedication” of land
(real property) by the owner to the City without compensation. This agreement would
hold home-owners hostage in that they cannot remodel or otherwise substantially improve
their residential property unless they deed over significant amounts of land to the City
without compensation. This is an unreasonably form of seizure! No other city in San
Diego County has this type of policy on residential property. This practice is un-American.
Not in Carlsbad! N-I-A, Not In America! We the Citizens of Carlsbad strongly urge this
Council not to adopt this policy of seizure of property.
Sincerely,
/J
&A L Al&&+-
/ ’ : ,’
Jack C. Debes, Ph.D.
.
4055 PARK DRIVE 9 CARLSBAD CALIFORNIA l 92008
AGENDA ~-I-EM g
C: MWOF
city QNlncil
city bmlger
City Attorney
Ch %Hi
DRAE'T
WAIVER OF RIGHTS AS A CONDITION TO
RECEIVING A GOVERNMENT BENEFIT
July 17,200O
Waiver of rights
"The term 'waiver' means the intentional relinquishment or abandonment of a
known right." (Bickel v. City of Piedmont (1997) 16 Cal.Qth 1040, 1048 [68 Cal.Rptr.2d 758, 946 P.2d 4271.) "To constitute a waiver, there must be an
existing right, knowledge of the right, and an actual intention to relinquish the right. [Citation.] 'The waiver may be either express, based on the words of
the waiving party, or implied, based on conduct indicating an intent
to relinquish the right.' [Citation.]" (Id., at p. 1053.) " ' "Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right
after knowledge of the facts." [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing
evidence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver." ' [Citation.]" (Grubb & Ellis Co. v. Belle (1993) 19 Cal.App.4th 231, 236 [23 Cal.Rptr.2d 2811.) "Whether there has been a waiver
is a question of fact." (Bickel v. City of Piedmont, supra, 16Ca1.4th at p.
1052.)" (People v. $241,600 United States Currency (1998) [67 Cal.App.4th 1100, 11091)
"In the first place, an individual may not waive the provisions of a law "established for a public reason" (Civ. Code, 3513) if the waiver would " ' "contravene any . . . public policy reasons motivating the enactment of the
statute [I" ' " (Cowan v. Superior Court (1996) 14 Cal.4th 367, 372 [58
Cal.Rptr.2d 458, 926 P.2d 438])." (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040; 1058, 168 Cal.Rptr.2d 758, 946 P.2d 4271, dissenting opinion).
"Civil Code section 3513 provides: 'Anyone may waive the advantage of a law
intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." . . . . Section 3513,0ne of the maxims of jurisprudence in our Civil Code, is an aid to the application
of statutory law, not an inflexible legal principle. (Civ. Code, 3509;Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 21 [51 Cal.Rptr. 881,415 P.2d
7691.) Because it is difficult to conceive of a statutory right enacted solely
for the benefit of private individuals that does not also have an incidental public benefit, a literal reading of Civil Code section 3513 would eliminate the
established rule that rights conferred by statute may be waived unless specific
statutory provisions prohibit waiver. For this reason, a literal construction
of section 3513 would be unreasonable. (See Civ.Code, 3542 [interpretations must be reasonable].)" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, FN
4, [68 Cal.Rptr.2d 758, 946 P.2d 4271).
The procedures and provisions provided in the statute must serve a primary
public purpose and public benefit. In Bickel, the California Supreme Court provides two alternative tests to ascertain whether a statute forbids waiver:
"Accordingly, to determine whether in this case the Act bars application of the
waiver doctrine, we must ascertain (1) whether the Act's time limits are for the
benefit of applicants or are instead for a public purpose, and (2) whether there
is any language in the Act prohibiting a waiver." (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048, 168 Cal.Rptr.2d 758, 946 P.2d 4271).
First, we'address the issue of primary and incidental public benefit to resolve the question of whether plaintiff may waive their rights to receive a government
benefit:
"Some public benefit is, however, inherent in most legislation. The pertinent inquiry, therefore, is not whether the law has any public benefit, but whether
that benefit is merely incidental to the legislation's primary purpose. In this case, the Court of Appeal's concurring and dissenting justice viewed the Act's public benefit as incidental: "The primary beneficiary of the time limits is
the applicant, the Act being designed to prevent the agency from foot-dragging
and coercing time waivers at the applicant's expense. The gen.eral public may incidental.ly benefit from expedited land use decisions, aided progress of
important large-scale developments, reduced delay for other applicants and perhaps an enhanced business environment generally.' (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040,1049, [68 Cal.Rptr.2d 758, 946 P.2d 4271).
Fifth 'Amendment rights
The primary purpose of the takings clause of the Fifth Amendment is to protect the public from the government taking their property without compensation.
Therefore, its public purpose is to protect the public. A single individual cannot, nor does he have the authority, to waive a right designed to protect the public by contract.
First Amendment rights
Plaintiff's right to protest illegal conditions imposed under the guise of excessive building plan check and building permit fees and the right to seek
legal remedy are protected rights under the freedom of speech clause and the right to redress grievances contained within the First Amendment. "[IIt is well
settled that a government cannot deny a benefit on a basis that infringes
constitutionally protected interests- 'especially [one's] interest in freedom of
speech." (Perry v. Sindermann, (1972) 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570). Pursuing the remedies at law, including petition and litigation are protected expressions of speech. "Certainly the right to
petition extends to all departments of the Government. The right of access to the courts is but one aspect of the right of petition." (CaliforniaTransport v.
Trucking Unlimited (1972) 404 U.S. 508, 510 [30 L.Ed.2d 642, 646, 92 S.Ct.
6091 . )
Unconstitutional conditions
The Condition requires a future waiver of rights associated with obtaining prospective building permits by requiring forced dedications and improvement
fees as an unconstitutional condition imposed upon Plaintiff's receipt of governmental benefits. "Grant of public privilege, such as building permit, may
not be conditioned upon deprivation of constitutional protections." (Rohn v.
Visalia, (1989) 263 Cal.Rptr. 319 (214 Ca.App.3d 1463)). "Under the well- settled doctrine of "unconstitutional conditions," the government may not
require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a
discretionary benefit conferred by the government where the property sought has
little or no relationship to the benefit. 'See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Ed.of Township
High School Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L. Ed.2d 811
(1968)." (Dolan v City of Tigard (1994) 512 U.S.-; 114 S.Ct.2309; 129 L.Ed.2d
304).
Equal Protection
The Condition applies prospectively if Plaintiff elects to improve their property. Obviously, Plaintiff has no authority to waive other property owner's rights to protest unconstitutional conditions when imposed as improvement fees and forced dedications for the receipt of a government benefit like a building
permit. Plaintiff views this Condition as a means to deprive them of any opportunity to have equal standing with the other property owners situated in a
similar position of owning properties within the city and seeking a building
permit.
Due Process and violations of law
Due process requires notice and a hearing before depriving someone of a right or
privilege. The Condition to waive Plaintiff's rights serves to deprive Plaintiff of their right to due process by depriving them of their rights to protest unconstitutional conditions such as forced dedications and improvement
fees imposed on building department permits. By depriving Plaintiff of their
due process, the condition protects and acts to exempt the City from allegations by Plaintiff that the unconstitutional conditions violate the law.
Conclusion
California courts have held that "[algreements whose object, directly or
indirectly, is to exempt its parties from violation of the law are against
public policy and may not be enforced. (See Civ. Code,1668.)" (In re Marriage
of Fell 55 Cal.App.4th 1058). Civil Code 1668 provides that "[a]11 contracts
which have for their object, directly or indirectly, to exempt anyone from
responsibility for his own fraud, or willful injury to the person or property of
another, or violation of law, whether willful or negligent, are against the
policy of the law."
The conditions proposed by the City, therefore, are void even if Plaintiff were
to consent to their imposition.
Jeff Piro 1898 Forest Avenue Carlsbad, Ca 92008
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