Loading...
HomeMy WebLinkAboutCDP 2020-0026; Lichtman, Valerie; 2020-0080003; Other• DOC# 2020-0080003 111111111111 lllll 11111111111111111111111111111111111111111111111111111 RECORDING REQUESTED BY: City of Carlsbad Feb 18, 2020 11 :26 AM OFFICIAL RECORDS Ernest J. Dronen burg, Jr, SAN DIEGO COUNTY RECORDER FEES $44.00 (SB2 Atkins $0.00) WHEN RECORDED MAIL TO: City of Carlsbad Housing and Neighborhood Services Attn: Code Enforcement 1200 Carlsbad Village Drive Carlsbad, CA 92008 (Space above for recorder's use) CODE COMPLIANCE AGREEMENT AND RELEASE Code Enforcement Case No. CC 2018-0902 939 Begonia Court, APN 214-390-23-00 Property Owner: Valerie Lichtman PAGES 11 THIS CODE COMPLIANCE AGREEMENT AND RELEASE and all addendums hereto (collectively referred to as the "Agreement"), effective as of the date executed herein, by and between property owner Valerie Lichtman and any of her authorized agent(s) (collectively referred to as "PROPERTY OWNER") and CITY OF CARLSBAD ("CITY") and sometimes collectively herein referred to as "PARTIES," is made with reference to the following facts: RECITALS 1. PROPERTY OWNER is the legal owner of 939 Begonia Court, Carlsbad, in the County of San Diego, California, which is residentially-zoned property assigned Assessor Parcel Number 214-390-23-00 (the "PROPERTY"). 2. This Agreement arises out of unpermitted grading and hillside development (the "Development") that began on the rear portion of the PROPERTY in approximately March, 2016 and continued until approximately June 2019. Specifically, PROPERTY OWNER caused the unpermitted installation of multiple multi-tiered mechanically stabilized earth walls ("MSE walls") in the rear yard. 3. On or about February 10, 2019, CITY issued a notice of violation to PROPERTY OWNER for violations of Carlsbad Municipal Code ("CMC") sections 15.16.050 (grading permit required) and 21.95.140 (hillside development and design standards) under Code Enforcement case number CC 2018-0902 ("the Code Case"). The recommended corrective actions were as follows: Obtain a valid permit for any graded work being 1 done on the property (CMC 15.16.050); contact CITY'S engineering department for further information (CMC 21.95.140). The notice of violation is attached as Exhibit 1. 4. In March 2019, PROPERTY OWNER's son and authorized agent, Rene Lichtman ("Lichtman"), contacted CITY'S engineering department regarding corrective options for the Development. Staff responded in writing to Lichtman that the Development could not remain, as the work performed was in conflict with CITY'S Hillside Development Ordinance, CMC 21.95.140 and coastal development standards, CMC 21.203.040. Staff advised that PROPERTY OWNER could pursue one of two options: (A) Apply for and obtain a grading permit to remove the walls and restore the slope to its original condition (hereinafter "Corrective Application"), or (B) apply for a Coastal Development Permit and Hillside Development Permit in an attempt to allow the walls to remain (hereinafter "Variance Application"). Staff advised PROPERTY OWNER that it would most likely recommend denial of any such application under option B, since the work did not appear to meet findings to support the requirements of CMC 21.203.040 and CMC 21.95.140. 5. On or about June 2, 2019, CITY issued a final notice of violation to PROPERTY OWNER for failure to achieve compliance by the compliance date set forth in the February 10, 2019 notice of violation. The final notice of violation is attached as Exhibit 2. 6. The PARTIES met and conferred multiple times between June 2019 to present, seeking to resolve the Code Case without the need for additional enforcement action by the CITY. During this timeframe, PROPERTY OWNER hired Advanced Geotechnical Solutions, Inc. to provide a geotechnical evaluation of the MSE walls, which is attached as Exhibit 3. This evaluation set forth three options to remedy the MSE walls, which were also determined to be structurally faulty. These options are outlined in Exhibit 3, section 7.0, titled "EARTHWORK RECOMMENDATIONS." 7. On more than one occasion during the pend ency of the Code Case, CITY advised PROPERTY OWNER of the risks of attempting to resolve the Code Case through any other means besides pursuing a Corrective Application. These risks include but are not limited to a staff recommendation to deny the Variance Application based on the Development's conflict with applicable regulatory requirements, a high likelihood that any reviewing bodies will also deny such Variance Application, and the expenditure of significant resources to apply for such Variance Application, a Corrective Application, and any other potential future applications should the Variance Application be denied. 8. On December 10, 2019, at the request of CITY, PROPERTY OWNER executed a written commitment ("Commitment") to resolve the Code Case, which is attached as Exhibit 4. Pursuant to the Commitment, PROPERTY OWNER agreed to submit a complete 2 Variance Application to CITY within 90 days of execution of the Commitment (no later than March 9, 2020), in lieu of pursuing CITY'S recommendation to submit a Corrective Application. 9. City Council for CITY has determined that the enforcement of the CMC and applicable state codes throughout CITY is an important public service and is vital to the protection of the public's health, safety, and quality of life. 10. City Council for CITY has determined that there is a need for alternative methods of code enforcement and that a comprehensive code enforcement system uses a combination of judicial and administrative remedies to gain compliance with CMC, land use, and state code regulations. 11. By entering into this Agreement, PROPERTY OWNER and CITY desire to resolve the issues presented and challenged in the Code Case. PROPERTY OWNER has voluntarily agreed to comply with: (a) the terms of this Agreement no later than March 9, 2020, and (b) all future compliance deadlines, which are as of yet undetermined, and which will be included by addendum(s) to this Agreement upon submission of PROPERTY OWNER'S Variance Application. 12. PROPERTY OWNER understands the risks involved with pursuing a Variance Application, as outlined in paragraph 7. PROPERTY OWNER further understands and agrees that if a Variance Application is denied and all administrative remedies are exhausted, PROPERTY OWNER will immediately apply for and pursue a Corrective Application. PROPERTY OWNER understands and assumes liability for the costs and fees associated with applying for a Variance Application, a Corrective Application, and any other necessary applications, as outlined more fully in the Mutual Agreement section of this Agreement. 13. PROPERTY OWNER has further agreed to execute this Agreement to provide assurances to CITY that PROPERTY OWNER will remain in compliance with all applicable CMC, state codes and land use permit conditions from the date of any corrective action(s) and compliance deadline(s) and forward for as long as PROPERTY OWNER retains ownership of said PROPERTY, and shall consent to the imposition of any remedy authorized by the CMC, and with the understanding that CITY will conduct ongoing inspections to ensure compliance as determined appropriate by CITY. 14. This Agreement is being entered into after arms-length negotiations between the PARTIES, in absolute good faith and in a spirit of settlement and compromise. It is based upon the information and facts learned in the course of enforcement efforts, investigation, uncertainty of litigation, costs of litigation and the desire of the PARTIES to reasonably settle the Code Case, as between themselves, on the terms and conditions set forth in this Agreement. All of the negotiations and correspondence between the PARTIES related to the negotiation of this Agreement shall be deemed to be settlement negotiations and subject to Evidence Code section 1152. 3 MUTUAL AGREEMENT 15. The PARTIES agree that the notices of violation referred to herein were issued properly, and that the current Development violates CMC sections 15.16.050 (grading permit required) and 21.95.140. 16. The PARTIES agree that PROPERTY OWNER will submit a complete Variance Application, as defined in paragraph 4 herein and subject to all applicable regulations, procedures, and standards for such applications, to CITY no later than March 9, 2020, in good faith and with all required components of the Variance Application. The PARTIES also agree that PROPERTY OWNER shall arrange to meet and confer with CITY by writing, phone call, or in person at least 30 days prior to March 9, 2020 to confirm that all required components of the Variance Application are in progress in a timely manner. 17. PROPERTY OWNER agrees that upon submission of a complete Variance Application on or before March 9, 2020, PROPERTY OWNER will continue to use good faith efforts to comply with all future requirements and compliance deadlines that will be included by addendum(s) to this Agreement. 18. PROPERTY OWNER agrees that if a Variance Application is denied and all administrative remedies are exhausted, PROPERTY OWNER shall immediately apply for and pursue a Corrective Application, including obtaining all necessary permits and performing all necessary work to comply with all applicable codes. However, PROPERTY OWNER does not waive herein any legal rights it may have for any legal claims or defenses against the CITY outside of a Corrective Application if any of those claims or defenses should arise. 19. PROPERTY OWNER understands and assumes all risks, including costs and fees, of attempting to resolve the Code Case. These risks include but are not limited to a staff recommendation to deny any Variance Application based on the Development's conflict with applicable regulatory requirements, a high likelihood that any reviewing bodies will also deny such Variance Application, and the expenditure of significant resources to apply for such Variance Application, a Corrective Application, and any other potential future applications should the Variance Application be denied. 20. PROPERTY OWNER agrees that s/he is solely liable for any and all costs and fees of pursuing a Variance Application, a Corrective Application, and any other potential future applications related to the Development. All costs and fees associated with a Variance Application, Corrective Application, and any other potential future applications related to the Development are non-transferrable. All fees shall be paid according to CITY'S current Development Fee Schedule, as adopted by the City Council. 4 21. CITY agrees to refrain from further enforcement of the outstanding Code Case, including the levying or collection of fines, until March 9, 2020 and during any period of CITY review of a complete Variance Application, so long as such Variance Application is submitted no later than March 9, 2020 in good faith with all required components of the application. 22. Continuing Compliance with City Regulations. PROPERTY OWNER hereby voluntarily agrees to take all corrective actions within the compliance period(s) set forth herein and will remain in compliance with all applicable CMC, land use permits, and related regulations for as long as said PROPERTY is owned by PROPERTY OWNER. 23. Compliance Inspections. CITY will inspect the PROPERTY at the scheduling discretion of CITY during the performance of any corrective work and following completion of said work to determine if PROPERTY OWNER has taken all required corrective action(s) set forth in this Agreement and remains in compliance after such corrective action is taken. If CITY determines that the terms of this Agreement are not met, CITY may, without issuing a notice of violation, notice and order, or stop work order, impose any remedy authorized by CMC chapter 1.10 and set forth in Paragraph 19 below. 24. Remedies for Non-Compliance. The consequences to PROPERTY OWNER for non- compliance at any time during the term of this Agreement include, but are not limited to: criminal prosecution, civil injunction, administrative abatement, administrative citations, revocation of permits, recordation of notices of violation, recordation of certificates of noncompliance and withholding offuture municipal permits (including discretionary permits, building permits, etc.) as set forth in CMC section 1.10.030. PROPERTY OWNER acknowledges that CITY may charge any unpaid penalty, fee or cost as a lien against the PROPERTY where the code violation occurred, when applicable, and that the unpaid amount may be a joint and several personal obligation of all persons responsible for the violation. Penalties imposed for non-compliance with this Agreement accrue from the date that this Agreement was executed. 25. Waiver of Right to Notice. As PROPERTY OWNER and the responsible party for the stated code violations, PROPERTY OWNER understands thats/he: has a right to be served with a notice of violation, notice and order, or stop work order for any violation identified in this Agreement; has a right to administratively appeal any such notice and order or stop work order; and is knowingly and intelligently waiving those rights by executing this voluntary Agreement. PROPERTY OWNER hereby agrees that CITY may immediately pursue any and all remedies, if appropriate and necessary, to ensure compliance with this Agreement and to correct the code violations without further 5 notice to PROPERTY OWNER. 26. Closure of Code Case. The Code Case will be closed after a final inspection and report by CITY staff confirming that all cited violations have been corrected as required by all applicable codes and regulations. Alternatively, if a Variance Application is approved, the Code Case will be closed after all work under said Variance Application has been completed, CITY has conducted a final inspection of the work, and CITY has issued a final report verifying compliance with all conditions of the approved Variance Application. Upon closure of the Code Case, CITY will waive and release any and all claims, damages, and fines against PROPERTY OWNER pertaining to this Code Case. 27. Recording of Agreement. CITY reserves the right to record this Agreement against the PROPERTY, which will run with the land, on notice to any and all future owner(s) or interested parties of the PROPERTY. PROPERTY OWNER agrees to sign any document necessary for recording. 28. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the party to receive such notice at the addressed set forth below: TO THE CITY OF CARLSBAD: City of Carlsbad Housing & Neighborhood Services, Code Enforcement Attn: Program Manager Code Enforcement 1200 Carlsbad Village Drive Carlsbad, CA 92008 TO THE PROPERTY OWNER/ AGENT: Rene Lichtman c/o April E. Roberts, legal counsel for Rene Lichtman 901 S. State St., Suite 400 Hemet, CA 92543 Any party may change the address to which notices are to be sent by notifying the other party of the new address in the manner set forth above. 6 29. Duration of Agreement. This Agreement shall remain in effect from the date of execution and terminate when the Code Case is closed, pursuant to paragraph 26, or upon sale of the PROPERTY to an alternate property owner and for as long as the noted PROPERTY OWNER owns said PROPERTY, whichever event comes first. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of the PROPERTY OWNER and the Community & Economic Development Director, Code Manager, or the City Building Official. 30. Integrated Agreement. This Agreement constitutes the entire Agreement between the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. This Agreement shall not be changed unless in writing and signed by both PARTIES. RELEASE PROVISIONS 31. Representations of Parties. The PARTIES each represent and warrant that they have freely considered, reviewed, and negotiated the terms of this Agreement, have had the opportunity to investigate and discuss it with her/their legal advisors or have been given the opportunity to retain an attorney and investigate and discuss the terms of this Agreement with said attorney, and that all have signed it voluntarily. By voluntarily signing this Agreement, the PARTIES represent and warrant that they have relied on their own judgment and any independent legal advice they may have sought and not upon any recommendations or representations of the other or from any opposing attorneys or third parties. By voluntarily signing this Agreement, the PARTIES each confirm that they understand and accept the terms of this Agreement as resolving all claims known and unknown they have or might have had against the other. The PARTIES represent and warrant that they have the full right, capacity, and authority to enter into and perform this Agreement. Such representations and warranties shall survive full execution and performance under this Agreement. 32. Representations and Warranties Re: Claims. Both PARTIES represent and warrant, for the benefit of each of the other PARTIES, that they are the owners of the claims which are the subject of this Agreement and that such claims have not been assigned, transferred or hypothecated, whether voluntarily or involuntarily, by subrogation, operation of law or otherwise, to any other person or entity. Such representations and warranties shall survive full execution of and performance under this Agreement. 33. Hold Harmless. PROPERTY OWNER will indemnify and hold harmless (without limit as to amount) CITY and its elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as "lndemnitees"), and any of them, from and against all loss, all risk of loss and all damage (including reasonable attorneys' fees and costs) sustained or incurred because of or by reason of any and all claims, demands, 7 suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made or obtained, allegedly caused by, arising out of or relating in any manner to PROPERTY OWNER's actions or defaults pursuant to this Agreement, and shall protect and defend lndemnitees, and any of them with respect thereto. This provision shall survive the term of this Agreement. 34. Attorneys' Fees. The PARTIES agree to bear their own attorneys' fees and costs associated with the Agreement. 35. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair any other provisions, which shall remain in full force and effect. 36. Execution by the Parties. This Agreement may be executed by the PARTIES in one or more counterparts, and may be executed on copies, each of which shall be deemed an original, and all of which together constitute one and the same instrument. 37. Electronic Record. The PARTIES may convert this Agreement into an electronic record. The PARTIES consent to and recognize the validity, enforceability and admissibility of such record, which shall have the same force and effect as the original Agreement. IN WITNESS WHEREOF, the PARTIES have executed this Agreement as of the dates set forth below. Dated: _,d\"-"'-+1-=~'---"----'' 2020 J Dated: -'1.~/_2_=-__ _,. 2020 I Dated: _i.._;_, ___ _,. 2020 Rene Lichtman, Authorized Agent of PROPE"IER~ t.LBO" Assistant Director, Community & Economic Development City of Carlsbaq APPROVED AS TO FORM: Dated: ~( ( () .2020 ~ Attorney for PROPERTY OWNER Dated: y_ lo • 2020 Marissa A. Kawecki, Deputy City Attorney for City of Carlsbad 9 ·,,._ California All Purpose Acknowledgement 2015 Government Code 1189 compliant A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of S °" t\ P ( ,e,,9 O on fe.b1.,'2.-0"l-0 beforeme, T~v1S f·hbSov,1 t{rJ~t}( f'vtbltc_ (here insert name and title of the officer) personally appeared Ve, l e, r I ~ i. I <.. V\ + Mt;. I'\. C. n J fl_ t-V\ -l.-, L I c.. n f-MA r\. W.ho proved to me on the basis of satisfactory evidence to be the person~~reli!!l) ..i8@subscribed to the within instrument and acknowledged to me that fie xecuted the same in h~uthorized capaciMies>, and that by hielhe~igna urt:(@ on the instrument the persci'iu}, or the entity upon.behalf of which the perso~acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. TRAVIS HOBSON WIT ESS my hand and official seal. ~ Signature COMM. #2209755 .,, • Notary Public. California ,!, San Diego County - Comm. Expires Aug 12, 2021 OPTIONAL INFORMATION Law does not require the infonnation below. This infonnation could be of great value to any person(s) relying on this document and could prevent fraudulent and/or the reattachment of this document to an unauthorized document{s) DESCRIPTION OF ATTACHED DOFUMENT Title or Type of Document Coole" Co /YI.~ /1 Gt n..-c..-<..,. A, t"ib(,, A ~-f-' Document Date: f-(; b -i, J... 0 '2--0 Number of Pages: __ 9L-_ Signer(s) if Different Than Above: _________________ _ Other Information: ------------------------------- CAPACITY(IES) CLAIMED BY SIGNER($) Signer's Name(s): □ Individual D Corporate Officer (Title{s)) D Partner D Attorney-in-Fact D Trustee D Guardian/Conservator D Other: __________________________ _ SIGNER IS REPRESENTING: Name of Person or Entity ____________ _ © 2015 Notary Public Seminars www.notarypublicseminars.com .. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of So... Y"I. D ,· e..'.j o i="e½,r..io.r'-\_ ~ ·v:.,7-0 . . L· . o 1 ~ 1. i . n ,1. On tr ) beforeme,C,bY'i $"TJ nc.... •"\e;.y1e 11=c-tY1(t1-e-C. > t'-'"'mv1 l\v:1 ,c:.. Date Here Insert Name and Title f the Officer personally appeared M I L :Pe \--c 's 'D n Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 :;.:,7.::·~~;,;T,;A·~~ .RODRI~~~ 1 -;-:" ', COMM. #2220186 ,:; ~ ! lb i NOTARY PUBLIC-CALIFORNIA !: SAN DIEGO COUNTY I My Comm. Expires October 29, 2021 CC 05555 CUC USU Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature C tvu,_,t,._p,,, '111 c--~ l<.t.., c~'-'-"-l Signature of Notary Public 0 ----------------OPTIONAL---------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached D)lpument Title or Type of Document:t: ..... o't,d,1,,..0 12.__..._{-='oc-,M""'f-p'--'/LL, .,,.Q._...l)...,c..g_."""""=--~/'-½--""-1,-'-.,-~ei~~'--1h.____,e,=-h..----'+---=a.,~~-'-'cJ=. -~~--~l~·c:.....,,·<"-----"S---e,,~--- Document Date: __________________ Number of Pages: _____ _ Signer(s) Other Than Named Above: _______________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ___________ _ □ Corporate Officer -Title(s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □Other: ______________ _ □ Other: _____________ _ Signer Is Representing: ________ _ Signer Is Representing: ________ _ c::<;. ©2016 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907