HomeMy WebLinkAboutJaw'shykang, Lih'jen Lo Kasai Liu Kunigawa; 1990-11-09;CT 8443
AGREEMENT FOR WAIVER OF PROHIBITION
AGAINST THE IMPOSITION OF CONDITIONS
UPON THE APPROVAL OF AN EXIENSION OF
A TENTATIVE SUBDMSION MAP
This Agreement is made this y& day of n&Z%&.il9f&etween the City
of Carlsbad, a municipal corporation, (hereinafter called "City") and Jaw' shykang, Lih'jen
Lo, Gregory D. Kasai, Cindy C. Kasai, Chiu-Lan Liu, and Yoetsu Kunigawa (hereinafter
called "Subdivider").
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Government Code Section 66452.6(e) and Carlsbad Municipal Code Sections
20.12.110 and 20.24.180 permit Subdividers to request and City to approve,
conditionally approve or deny extensions of time for the expiration of tentative
maps or tentative parcel maps (hereinafter collectively called 'Tentative Subdivision
Maps").
El Patio v. Permanent Rent Control Board, 110 Cal. App. 3d 915, modified 111
Cal. App. 3d 788 (1980) indicates that the Government Code (Subdivision Map
Act) may not authorize City to impose new conditions; i.e., those which were not
imposed on the tentative subdivision map, upon the extension of time for
expiration of a tentative subdivision map, but also held that the City does have
discretion to approve or deny such extensions.
Government Code Section 66452.6(d) and Carlsbad Municipal Code Section
20.12.100(d) and 20.24.160 provide that expiration of a tentative subdivision map
shall terminate all proceedings and that no final map or parcel map for any
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property covered by the tentative subdivision map shall be filed without first
processing a new tentative subdivision map.
Subdivider has requested City to approve the extension of time for Tentative
Subdivision Map No. CT 84-43 which was initially approved on August, 26,1986.
Since the approval of said Tentative Subdivision Map, City has conducted studies
which show that the construction of certain drainage facilities or thoroughfares are
essential to protect and provide for the health, welfare, and safety of all of the
present and future residents of City, including those who will reside in said
subdivision.
Since the approval of said Tentative Subdivision Map, City has adopted a major
drainage fee or major thoroughfare fee or both to provide the funds to construct
the necessary drainage facilities and thoroughfares.
Since the approval of the Tentative Subdivision Map, City has conducted studies
which show the need to establish a public facilities fee in order to provide for
public facilities to protect the public health, safety and welfare of the present and
future residents of City and to ensure that public facilities to serve the
development will be available concurrent with need as required by City's General
Plan. Developer agrees to pay said fees and has executed a contract which is on
file with the City Clerk to that effect.
Because the original approval of said Tentative Subdivision Map occurred prior to
the adoption of the aforementioned fees, City did not condition the approval of
said Tentative Subdivision Map with the payment of said fees.
Since the initial approval of said Tentative Subdivision Map there may have been
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changed circumstances which require additional conditions of approval on the
extension of the Tentative Subdivision Map to protect the public health, safety and
welfare, to mitigate affects on the environment or to ensure consistency of the
extended map with the City's General Plan and Municipal Code.
City arguably may not, without the voluntary consent of Subdivider, impose upon
the extension of said Tentative Subdivision Map conditions requiring payment of
the fees mentioned above or conditions necessary to protect the public health,
safety or welfare, or the environment or ensure consistency with the General Plan
or Municipal Code.
Without such voluntary consent of Subdivider to the imposition of conditions City
may be required to deny Subdivider's request for extension to ensure that the
public health, safety and welfare, or the environment are protected or that the
General Plan or Municipal Code requirements are satisfied. Approval of the
extension of said Tentative Subdivision Map without assurances that the fees
mentioned above would be paid for said subdivision would be contrary to the best
interests of the City and would threaten the City's ability to protect and provide
for the public health, safety and welfare. Subdivider agrees that it is in the best
interest of City and Subdivider that City be able to protect the public health, safety
and welfare, or the environment or ensure consistency with the General Plan or
Municipal Code by the imposition of conditions on the extension of tentative
subdivision maps.
Subdivider realizes that denial of the requested extension could result in the
expiration of the tentative subdivision map. Subdivider would then be required
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to incur substantial costs and time delays in processing a new tentative subdivision
map approval of which would be subject to new conditions necessary to ensure
consistency of the tentative subdivision map with the Subdivision Map Act, the
California Environmental Quality Act, Titles 19, 20 and 21 of the Carlsbad
Municipal Code, the City's General Plan and to protect the public health, safety
and welfare.
City has reviewed the Subdivider's request for an extension of time for said
tentative subdivision map and finds that granting the request subject to certain
conditions will not be contrary to the public health, safety and welfare.
NOW, THEREFORE, in consideration of the recitals and of the mutual covenants
set forth herein, City and Subdivider agree as follows:
1. City agrees to extend Subdivider's Tentative Subdivision Map for one year
subject to whatever new or revised conditions the City in its sole discretion deem
appropriate.
2. Subdivider knowingly and voluntarily waives any and all right to the
unconditioned extension of Tentative Subdivision Map No. CT 84-43.
3. Subdivider knowing and voluntarily consents to the imposition of a
condition of approval of the extension of Tentative Subdivision Map No. CT 84-43 which
requires payment of any fees which may be in effect at the time of approval of the final
subdivision map for said subdivision or any portion thereof and to the following
additional conditions:
A. This approval is expressly conditioned on the payment by the applicant of
a public facilities fee as required by City Council Policy No. 17, issued and
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effective on April 22, 1986, on file with the City Clerk and incorporated
herein by reference, and according to the agreement executed by the
applicant for payment of said fee. If said fee is not paid as promised, this
application will not be consistent with the General Plan and the project
cannot proceed and this approval shall be void.
This approval is expressly conditioned upon the subdivider's compliance with
any growth management system in effect at the time the final map is filed.
Subdivider shall also pay or agree to pay (as decided by the City Council)
all fees identified by the City Council as necessary to pay for the cost of
providing facilities and improvements which are imposed pursuant to the
growth management system or any other applicable laws.
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4. The provisions of Carlsbad Municipal Code Section 20.12.110 and
20.24.180, as appropriate, shall govern extension of the map which is the subject of this
agreement.
5. If this agreement is for an extension of a tentative subdivision map for a
minor subdivision, the appeal of the City Engineer's approval, or conditional approval, of
the extension by any party shall void this agreement unless the agreement is subsequently
approved by the City Council.
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San Dego Mcmkr F I) 2%: I L Bank@"$
be the egso_nlsJ whose-n_a_m_eLs_l is/a-q subscribed to this instrument, and
acknowledged that he [she/tbg-J executed the same.
Jaw shyrkang ---------- Yoetsu Kunigawa,
Lih jen Lo By Cindy C. Kasai, Attorney
5 Gregory D. Kasai In Fact Cindy C. Kasai
5 Chiu-Lan Liu
Witness my hand Y z!
1 ss. STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
[for notary seal or stamp]
NOTARY ACKNOWLEDGMENT
INDIVIDUAL
6. Any action by Subdivider to challenge the legality of this agreement or any
failure by Subdivider to pay the fees and comply with any other conditions applicable to
the extension shall void the approval of such extension. The map shall not final and the
development shall not proceed until a new tentative subdivision map has been approved.
SUBDMDER CITY OF CARLSBAD, a municipal corporation
Jaw‘ shyrkang
Chiu-Lan Liu
Notarial acknowledgement of execution by subdivider must be attached. Affix corporate
seal if appropriate.
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