Chapter 9.84 — NOTICES OF VIOLATION

Sec. 9.84.005. - Tentative notices of violation.

Whenever the city engineer has information indicating that real property has been divided in violation of the Subdivision Map Act or the Subdivision Code, he shall file for record with the county recorder a tentative notice of violation giving a legal description of the property, naming the owners thereof, describing the violation, and stating that an opportunity will be given to the owner to present evidence on the issue whether the property has been divided in violation of the Subdivision Map Act or the Subdivision Code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.84.010. - Receipt of evidence.

Upon recordation of a tentative notice of violation, the city engineer shall bring the matter before the subdivision committee, which shall schedule a meeting at which evidence as to why a final notice of violation should not be recorded may be presented. The owner of the land in question shall be given at least 30 days written notice of said meeting, unless the owner requests an earlier determination. At the city engineer's discretion, the matter may be referred to the planning commission for public hearing if it is determined to be in the public interest to do so.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.84.015. - Subdivision committee determination.

(a)

If the subdivision committee determines that there has been no violation, the city engineer shall file for record a release of the tentative notice of violation with the county recorder.

(b)

If the subdivision committee determines that there has been a violation, or if within 60 days of receipt of such copy, the owner of such real property fails to inform the city engineer of his objection to recording the notice of violation, the city engineer shall file a final notice of violation with the county recorder.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.84.020. - Release by certificate of compliance.

A notice of violation may be released by a certificate of compliance pursuant to chapter 9.83.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.85. - LOCAL PARK CODE

Sec. 9.85.005. - Title.

Chapter 9.85 of the Subdivision Code may be cited as the City of Mission Viejo Local Park Code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.010. - Purpose, authority, and objectives.

The Local Park Code is adopted pursuant to the Government Code § 66477, the police power, the power to zone and the power to implement the conservation/open space element of the general plan. The general purposes and objectives of the Local Park Code are:

(a)

To preserve, enhance and improve the quality of the physical environment of the City of Mission Viejo.

(b)

To provide a procedure for the acquisition and development of local park facilities.

(c)

To secure for the citizens of Mission Viejo the social and physical advantages resulting from the provision of orderly park, recreation and open space facilities.

(d)

To establish conditions which will allow parks and recreation areas to be provided and to exist in harmony with surrounding and neighborhood land uses.

(e)

To ensure that adequate park and recreation facilities will be provided.

(f)

To ensure that park and recreation facilities are provided and maintained in a manner that will permit their maximum use and enjoyment by the residents of the surrounding areas.

(g)

To provide regulations requiring five usable acres having a grade not exceeding two percent or the proportionate share thereof for each 1,000 persons residing within the city be supplied by persons proposing residential subdivisions. Notwithstanding the above, however, the planning commission may accept land not meeting the two percent gradient standard where the planning commission finds that extraordinary or extenuating circumstances warrant an exception.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

For the purpose of this chapter, the following definitions shall apply:

(1)

Park. A parcel, or contiguous parcels, of land which is owned, operated and maintained by a public agency or which is a privately owned and/or operated and maintained which has been approved for local park credit under this code and which provides recreational land and facilities for the benefit and enjoyment of the residents and visitors of Mission Viejo.

(2)

Person. Any individual, firm, copartnership, joint venture, association, club, trust, receiver, syndicate, this and any other county, city and county, municipality, district or other political subdivision, or any other group or combination acting as a unit.

(b)

Unless otherwise specifically defined in this chapter, all definitions of the Development Code and the Subdivision Code are applicable to this code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.020. - Interpretation and application.

(a)

In all matters pertaining to local parks, the Local Park Code shall take precedence over all other ordinances or resolutions adopted by the city council, subject to the following provisions:

(1)

The provisions of the Local Park Code shall not be construed to repeal, amend, modify, impair, annul or otherwise interfere with any other existing article, ordinance, easement, deed restriction, covenant or other

agreement between parties or any part thereof not specifically repealed, amended, modified, or annulled herein, except that where this code imposes greater limitations or requirements on the use of land, or greater parks and open spaces, or larger areas or dimensions, or larger fees than the limitations or requirements imposed by any other article, ordinance, easement, deed restriction, covenant or agreement on the same premises or property, this code shall control.

(2)

Nothing in this code shall be construed to authorize the use of any premises or property in violation of this or any other applicable article, statute, ordinance or regulation.

(b)

Whenever reference is made to any portion of this code, the reference applies to all amendments and additions now or hereafter made.

(c)

In the event any uncertainty exists as to the meaning or intent of any of the provisions or requirements of this code, it shall be the duty of the director of community development to make a determination regarding such meaning or intent; such determination shall be that which best carries out the purposes and objectives of this code as set forth in section 9.85.010.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The city council hereby declares that it is the duty and the responsibility of the residents of Mission Viejo and of all levels of governments, including special districts, to preserve and enhance the quality of the physical environment and further, that it is the duty and the responsibility of the city to provide local park facilities.

(a)

It is the responsibility of each person who proposes to establish a dwelling unit or units, or to increase the number of dwelling units, on his property, and of each person who proposes to create residential building sites, to provide an equitable portion of the necessary park lands as required by this code.

(b)

It is the responsibility of the planning commission to approve all local park dedications, modifications and park implementation plans in accordance with the requirements of this code and after review and recommendation by the subdivision committee.

(c)

It is the duty of the director of community development to verify that the requirements of this code are complied with, and to notify all interested parties and agencies of such compliance.

(d)

It is the duty of the city building official to enforce the provisions of this code that are applicable to the issuance of building permits and certificates of occupancy.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

All park land provided and all fees paid shall be used to provide local park benefits for future residents of the area from which the park land or park fees are derived.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

All park fees paid pursuant to this chapter and interest accrued from such fees to the city shall be used to provide for acquiring and developing new parks or rehabilitating existing parks or recreational facilities to serve the subdivision and shall be deposited in a special account reserved for such purposes. Such fees may also be used for the purposes described in Government Code § 66477.5.

All park fees paid pursuant to this chapter and interest accrued from such fees to the city shall be used for the purposes set forth in section 9.85.010 and shall be deposited in a separate account reserved for such purposes.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.040. - Appeals to planning commission.

(a)

Any person may appeal a determination of the subdivision committee regarding the interpretation or implementation of this code. Any such appeal shall be addressed to the planning commission and shall be filed in duplicate with the director of community development within ten calendar days from the date of such determination.

(b)

The appeal shall set forth specifically where the determination of the subdivision committee fails to conform to the requirements of this code, or other applicable law, or wherein the conditions imposed are improper.

(c)

The director of community development shall bring the matter before the planning commission for hearing within 30 days after the date of filing the appeal. The person and appellant, if other than the person, shall be given at least ten days notice of the planning commission's hearing.

(d)

The planning commission may affirm, reverse or modify any determination of the subdivision committee and may make such findings as it deems appropriate. If only one or a limited number of conditions are being appealed, the planning commission need not limit its review to those specific conditions buy may

review the whole action taken by the subdivision committee. The planning commission shall render its decision on the appeal within seven days of the conclusion of its hearing.

(e)

An appeal, once filed, may be withdrawn only with the consent of the planning commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.045. - Appeals to the city council.

(a)

Any person may appeal a determination of the planning commission regarding the interpretation or implementation of this code. Any such appeal shall be addressed to the city council and shall be filed in duplicate with the city clerk within ten calendar days from the date of such determination.

(b)

The appeal shall set forth specifically where the determination of the planning commission fails to conform to the requirements of this code, or other applicable law, or wherein the conditions imposed are improper.

(c)

The director of community development shall report the filing of the appeal to the planning commission at

its next regular meeting. The planning commission may made a report to the city council for its consideration in determining the appeal of any observations or facts regarding such determination which would answer the statements set forth in the appeal. The director of community development shall transmit to the city clerk such report, together with such reports in the matter as possessed by the planning commission.

(d)

The city council shall consider the appeal at a regular meeting within 30 calendar days following the receipt by the city clerk or within such time as the council shall continue the matter.

(e)

Notice of the time and place the city council will consider the appeal shall be mailed to the applicant, and to the person who filed the appeal (if other than the applicant), and shall give at least ten days notice.

(f)

The city council may, at a regular meeting, affirm, reverse or modify, in whole or part, any determination of the planning commission from which an appeal has been taken under this section. The resolution shall include such express findings of fact or such observations, if any, as any member or members of the city council fails to pass such a resolution within 30 calendar days following the receipt by the city clerk of the duplicate copy of the appeal, or within such time as the council continued the matter, such failure shall be deemed an affirmation of the determination of the planning commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Requests for refunds of park fees paid or release of security instruments may be directed to the director of community development at any time. The director may approve a refund or a partial refund of park fees paid or release of security instruments when he has verified:

(1)

That the refund amount requested corresponds to the amount of fees actually deposited in the local part trust fund for a given number of dwelling units; and

(2)

That the local park requirement for the dwelling units in question had been met by actual council acceptance of park land, or by an irrevocable recorded offer to dedicate a park land on a final tract map or parcel map; or

(3)

The subdivision or building permit approval for which fees were required has been withdrawn or is otherwise no longer valid.

Requests that do not comply with above criteria (1) and (2) or (3) shall be denied by the director. Appeals from the decision of the director shall be first to the planning commission as described in section 9.85.040, and then to the city council as described in section 9.85.045.

When the director of community development approves a refund, he shall request a warrant from the director of administrative services, citing in his request the council resolution accepting the park land, or the tract, book and page number in the case of a recorded offer to dedicate land. In the case of release of a security instrument, he shall request such release from the city clerk.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any person may apply for a modification of the methods used in fulfilling requirements of this code.

(a)

Each application for a modification shall be in writing and shall state specifically the exact requirement that is requested to be modified, and the applicant's reasons for requesting such a modification.

(b)

Each application for a modification shall be filed with the director of community development.

(c)

The planning commission shall hold a public meeting for the purpose of hearing the modification request. Such meeting shall be set for a date not later than 30 days subsequent to the filing of the application.

(d)

Modifications of the methods used in complying with requirements of this code may be approved only when the planning commission makes a determination that the future residents of the subject property will be better served by the approval of the modification. If there is a determination that the future residents will not be better served, the planning commission shall disapprove the application.

(e)

The determination of the planning commission shall become final after an appeal period of 14 calendar days from the date of such determination, unless an appeal is filed within that period, in compliance with the regulations of section 9.85.040.

(f)

A park implementation plan may serve as a master park modification.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.060. - Requirements for subdivisions.

Any person who proposes to divide real property for the purpose of creating a residential subdivision or a parcel map for residential use shall pay a park fee or provide park land in accordance with the requirements of this subarticle.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The requirements of this subarticle shall be complied with by the provision of park land, as approved by the planning commission, the payment of park fees, or by a combination of both. Provision of park land shall not be required for parcel maps or subdivisions containing 50 parcels or less; except that when a condominium project, stock cooperative or community apartment project exceeds 50 dwelling units, dedication of land may be required notwithstanding that the number of parcels may be less than 50. Whenever a person proposes to provide park land, such person shall comply with the requirements of section 9.85.090.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

When the requirements of this code are complied with solely on the basis of dedicating park land, the amount of land to be provided shall be computed by multiplying the number of proposed dwelling units by the park land acres per dwelling unit in accordance with the appropriate density classification in the following table:

In the event the area to be dedicated is bounded or abutted by existing or proposed street frontage, the subdivider shall, at the time of approval of the tentative map, obligate himself by condition to said map to provide curbs, gutters, sidewalk, drainage facilities, street lighting, stop lights, street signs, matching pavement and street trees to full city standards, to stub-in requested standard improvements required for residential property plus initial on site grading required for developing the park facility; provided, however, that, with the approval of the planning commission or city council, whichever acts last on the tentative map, and in lieu of making said improvements, the subdivider may pay a sum as estimated by the director of public works sufficient to cover the cost of said improvements.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.075. - Amount of park fees required.

(a)

Whenever the requirements of this code are met solely on the basis of the payment of park fees, the amount of such fees shall be computed by multiplying the number of proposed dwelling units by the park land acres per dwelling unit shown in the table of section 9.85.070, and by multiplying the resultant acreage amount by the land value of the land being developed, per acre.

(b)

The land value shall be based on the average per acre value of the property to be subdivided at the time of recording the final subdivision map, adjusted to reflect the value of such an acre of property rough graded to a maximum one percent slope. Fair market value shall be determined as of the date on which the parcel or final map is filed.

(c)

Land value initially shall be determined by negotiations between the director and the subdivider. If these negotiations are unsuccessful, the land value shall be determined by a Member of the Appraisal Institute (MAI) mutually agreed upon by the director and the subdivider. The subdivider shall pay for the cost of the appraisal. The subdivider shall select the appraiser from a list of three provided by the director.

(d)

In addition to the fee to be paid in lieu of land dedication, the subdivider shall also pay an amount equal to 20 percent of the in-lieu fee to provide curbs, gutters, drainage facilities, street lighting, stop lighting, stop lights, sidewalks, street signs, matching pavement and street trees to full city standards, stubbing in of requested utility line services to the park facility, and all standard improvements required by the city for residential subdivisions.

(e)

Where the director and the subdivider so agree, all or part of the in-lieu fee and any additional improvement fee may, instead of being paid in cash, be paid by making improvements of equivalent value to existing or projected parks either inside or outside of the subdivision. Such improvements shall be provided for by an improvement agreement and improvement security approved by the city attorney.

(f)

Following recommendations received from the community services commission and the planning commission, the city council may modify by resolution the above procedure for determining land value.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Whenever the requirements of this code are complied with by both the provision of park land and payment of park fee, the amount of the park fee shall be computed by determining the required amount of park land in accordance with the provisions of section 9.85.070 and subtracting the amount of park land actually provided. The remainder shall be converted to a fee in accordance with the provisions of section 9.85.075.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

If the person is required to provide dedicated park land and provides park and recreational improvements to the dedicated land, pursuant to a development plan approved by the city, the value of the improvements together with any equipment located thereon shall be a credit against the payment of fees or dedication of land required by this code. Value of such improvements shall be at cost to the developer.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.090. - Park land requirements.

Any person meeting either all or part of the requirements of this code by providing park land shall comply with the following requirements:

(a)

If the proposed park land is within or contiguous to the boundary of a tentative tract or parcel map, it shall be shown on the tentative tract or parcel map.

(b)

If the proposed park land is outside the boundary of the tentative tract or parcel map, it shall be shown on a separate map accompanying the tentative tract map or shall be consistent with an approved park implementation plan.

(c)

If the planning commission makes a determination that the future residents will be better served by the establishment of a park in a different location that proposed by the person, it may require the person to pay a park fee for all or part of the required park land, and the amount of park land required to be shown on the tentative map shall be reduced by an equivalent amount.

(d)

Any proposal to provide park land on real property zoned for multiple residential uses shall include a statement on the face of the map specifying the number of proposed dwelling units, and the amount of park land required shall be computed on the basis of the number of dwelling units shown on the face of the map. If the number of building permits for dwelling units exceeds the amount proposed on the face of the tentative map, an appropriate park fee in accordance with the requirements of section 9.85.075 shall be paid for the additional dwelling units or additional acreage dedicated.

(e)

Each proposal to provide park land shall be required and a determination made by the director of community development as to compliance with the regulations, standards and criteria specified by this code and the conservation/open space element of the general plan. The director shall report all findings to the planning commission. All park land shown on a tentative tract or parcel map or a subdivision of land shall be recorded on a final tract map or a parcel map. Such map shall include an offer of dedication to the City of Mission Viejo.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.095. - Park fee procedures.

Park fees shall be approved by the planning commission. The amount of park fees shall be computed in accordance with the provisions of section 9.85.075, based on representative land value of the land being developed at the time the building permits are issued. Fees shall be paid prior to issuance of building permits or at such time as otherwise provided by resolution of the city council.

Any approval of the payment of park fees shall be made by the planning commission prior to or concurrently with the approval of the tentative map, and such approval shall be shown on the face of the tentative map and by conditions of approval.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.100. - Change in requirements after approval of tentative map or division of land.

If any person proposes to change the amount of the park land or the payment of the park fee, or the size, shape, location, terrain or improvements of the park shown on an approved tentative tract map, or tentative

parcel map, such change shall be deemed to be a revision of the tentative tract map or tentative parcel map, and shall require the filing of a new or revised map.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.105. - Standards.

All required local park land provided in compliance with this code shall comply with the standards and criteria contained in the conservation/open space element of the general plan.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.85.110. - Compliance with this code; unsubdivided and previously subdivided lands.

Whenever a person proposes to build, place, or otherwise establish a dwelling unit or units on a building site or sites created prior to June 29, 1971 or proposes construction of a new residential condominium project, stock cooperative or community apartment exceeding 50 dwelling units, no local park fees having been paid nor park land dedicated on behalf of such sites, such person shall pay a park fee in an amount determined pursuant to section 9.85.075, prior to issuing building permits.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.90. - MAJOR THOROUGHFARE AND BRIDGE FEES[[3]]

Footnotes:

--- ( 3 ) ---

Cross reference— Fees in lieu of dedication or improvements, § 9.77.015; traffic, tit. 12; parks and recreational facilities, tit. 13; streets and sidewalks, tit. 14.

Sec. 9.90.010. - Payment prerequisite to approval of subdivision.

A subdivider, as a condition of approval of a final or parcel map, or a building permit applicant, as a condition of issuance of a building permit, shall pay a fee as hereinafter established to defray the costs of constructing bridges over waterways, railways, freeways and canyons, or constructing major thoroughfares.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Area of benefit means a specified area wherein it has been determined that the real property located therein will benefit from the construction of a major thoroughfare or bridge project.

Bridge facilities means those locations identified in the transportation or flood control provisions of the circulation element or other element of the city's general plan as requiring a bridge to span a waterway, a railway, freeway or canyon. Should the city not have a general plan in effect, then, until such time as such a plan is adopted, the term "bridge facilities" shall mean those locations identified in the transportation or flood control provisions of the circulation element or other element of the general plan of the county as that plan existed on March 31, 1988.

Construction includes preliminary studies, design, acquisition of right-of-way, administration of construction contracts, and actual construction.

Major thoroughfare means those roads designated as transportation corridors and major, primary, secondary, or commuter highways on the master plan of arterial highways in the circulation element of the city's general plan. Should the city not have a general plan in effect, then, until such time as such a plan is adopted, the term "major thoroughfare" shall mean those roads designated as transportation corridors and major, primary, secondary or commuter highways on the master plan of arterial highways in the circulation element of the general plan of the county as that plan existed on March 31, 1988. The primary purpose of such roads is to carry through traffic and provide a network connecting to and including the state highway system.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Cross reference— Definitions generally, § 1.01.170.

Sec. 9.90.030. - Inclusion of project in general plan prerequisite to requirement of payment.

The provisions herein for payment of a fee shall apply only if the major thoroughfare or bridge facility has been included in an element of the general plan adopted by the city council at least 30 days prior to the filing of a map or application for a building permit and on land located within the boundaries of the area of benefit. Should the city not have a general plan in effect, then, until such time as such a plan is adopted, the provisions herein for the payment of a fee shall apply only if the major thoroughfare or bridge facility has been included in an element of the general plan of the county as that plan existed on March 31, 1988.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.040. - Project to be in addition to or improvement of existing thoroughfare as prerequisite to requirement.

Payment of fees shall not be required unless any major thoroughfares are in addition to, or a widening or reconstruction of, any existing major thoroughfares serving the area at the time of the adoption of the boundaries of the area of benefit.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.050. - Project to be existing or original bridge as prerequisite to requirement.

Payment of fees shall not be required unless any planned bridge facility is an original bridge serving the area or an addition to an existing bridge facility serving the area at the time of the adoption of the boundaries of the area of benefit.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.060. - Establishment of area of benefit.

Action to establish an area of benefit may be initiated by the city council upon its own motion or upon the recommendation of the director of public works. The proposal will be forwarded to the planning commission for its review and recommendations at a regular, adjourned or special meeting. The planning commission's comments and recommendations and the public works director's report shall be transmitted to the city council. The city council will set a public hearing for each proposed area benefited. Notice of the time and place of the hearing, including preliminary information related to the boundaries of the area of benefit, estimated costs and the method of fee apportionment, shall be given by first class mail addressed to each owner as shown on the last equalized assessment roll of property within the proposed area of benefit.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.070. - Council hearing and action on proposed benefit area.

(a)

At the public hearing the city council will consider the testimony, written protests, and other evidence. At the conclusion of the public hearing the city council may, unless a majority written protest is filed and not withdrawn as specified in subsection (c) hereof, establish an area of benefit. If established, the city council shall adopt a resolution describing the boundaries of the area of benefit, setting forth the cost, whether actual or estimated, and the method of fee apportionment. A certified copy of such resolution shall be recorded with the county recorder.

(b)

Such apportioned fees shall be applicable to all property within the area of benefit and shall be payable as a condition of approval of a final map or as a condition of issuing a building permit for such property or portions thereof. Where the area of benefit includes lands not subject to the payment of fees pursuant to this section, the city council shall make provisions for payment of the share of improvement cost apportioned to such lands from other sources.

(c)

Written protest shall be received by the city clerk any time prior to the close of the public hearing. If written protests are fried by the owners of more than one-half of the area of the property to be benefitted by the improvement, and sufficient protests are not withdrawn so as to reduce the area represented by the protests to less than one-half of the area to be benefitted, then the proposed proceedings shall be abandoned, and the city council shall not, for one year from the rifling of the written protests, commence or carry on any proceedings for the same improvement under the provisions of this section, unless the protests are overruled by an affirmative vote of four-fifths of the city council. Any protests may be withdrawn by the owner making the same, in writing, at any time prior to the close of the public meeting.

(d)

If any majority protest is directed against only a portion of the improvement, then all further proceedings under the provisions of this section to construct that portion of the improvement so protested against shall be barred for a period of one year, but the city council shall not be barred from commencing new proceedings not including any part of the improvement so protested against. Such proceedings shall be commenced by a new notice and public hearing as set forth in section 9.90.060 above.

(e)

Nothing in this section shall prohibit the city council, within such one-year period, from commencing and carrying on new proceedings for the construction of an improvement or portion of the improvements so protested against if it finds, by the affirmative vote of four-fifths of its members, that the owners of more than one-half of the area of the property to be benefitted are in favor of going forward with such improvement or portion thereof.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.080. - Receipt of fees; handling and expenditure.

Fees paid pursuant to this section shall be deposited in a planned bridge facility or major thoroughfare fund. A fund shall be established for each planned bridge facility project or each planned major thoroughfare project. If the area of benefit is one in which more than one bridge or major thoroughfare is required to be constructed, a separate fund may be established covering all of the bridge projects or major thoroughfares in the area of benefit. If the area of benefit encompasses one or more bridges and one or more thoroughfares and all lands within the area of benefit are subject to the same proportionate fee for all bridges and thoroughfares, a single fund may be established to account for fees paid. Moneys in such fund shall be expanded solely for the construction or reimbursement for construction of improvements serving the area to be benefitted and from which the fees comprising the fund were collected, or to reimburse the city for the costs of constructing the improvement.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.090. - Acceptance of consideration in lieu of payment.

The city council may approve the acceptance of consideration in lieu of the payment of fees established herein.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.100. - Advancement of other monies pending receipt of fees.

The city council may approve the advancement of money from the general fund or road fund to pay the costs of constructing the improvements covered herein and may reimburse the general fund or road fund for such advances from planned bridge facility or major thoroughfare funds established pursuant to this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.90.110. - Reimbursement of developer for costs not allocated to subdivider's property.

If the subdivider, as a condition of approval of the subdivision, or the building permit applicant, as a condition of the issuance of the building permit, is required or desires to construct a bridge or major thoroughfare, the city council may enter into a reimbursement agreement with the subdivider or building permit applicant. Such agreement may provide for payments to the subdivider or applicant from the bridge facility or major thoroughfare fund covering that specific project to reimburse the subdivider or applicant for costs not allocated to the subdivider's or applicant's property in the resolution establishing the area of benefit. If the bridge or major thoroughfare fund covers more than one project, reimbursements shall be made on a pro rata basis reflecting the actual or estimated costs of the projects covered by the fund.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.92. - INTERIM SCHOOL FACILITIES FEES

Sec. 9.92.010. - Application.

If the governing board of a school district:

(1)

Makes a finding in accordance with Government Code § 65971 supported by clear and convincing evidence that conditions of overcrowding exist in one or more of the attendance areas within the district which will impair the normal functioning of educational programs including the reason for such conditions existing; and that all reasonable methods of mitigating conditions of overcrowding have been evaluated and no feasible method for reducing such conditions exists; and

(2)

Notifies the council in writing of such findings and evidence and describes the precise geographic boundaries of the overcrowded attendance area or areas and the facilities to be constructed with any fees obtained pursuant to this article; and

(3)

Specifies in writing mitigation measures considered by the governing board, such measures to include, but not be limited to, those enumerated in this chapter; and

(4)

If the council, after a hearing and recommendation by the planning commission, concurs in such findings and finds that the facilities proposed to be constructed are consistent with the general plan, then the provisions of this chapter shall be applicable to the attendance area or areas described in the governing board's resolution subject to the exceptions set forth in this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.015. - Definitions.

As used in this chapter the following definitions shall apply:

Attendance area means the area established by a governing board within which pupils must reside to attend a particular school.

Governing board means the governing board of any school district which operates a high school or elementary school.

Reasonable methods of mitigating conditions of overcrowding includes but is not limited to:

(1)

Agreements between a governing board and subdivider whereby temporary use buildings will be leased to the governing board or temporary use buildings owned by the governing board will be used.

(2)

Double sessions.

(3)

Relieving overcrowded school conditions by adjustment of attendant area boundaries.

(4)

Continuous school programs as authorized by Education Code § 37600 and following.

(5)

Use of available annual tax rate and bond revenues to the full extent authorized by law.

(6)

Full use of funds which could be available from sale of surplus school district real property and funds available from any other sources.

(7)

The possible use of the facilities in adjacent districts.

Residential development means a project containing residential dwellings, including mobile homes, of one or more units or a subdivision of land for the purpose of constructing one or more residential dwelling units.

Time of sale of the property means the time of close of escrow.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Cross reference— Definitions generally, § 1.01.170.

Sec. 9.92.020. - Fees imposed.

(a)

No building permits shall be issued for any residential development in any attendance area to which this chapter is applicable until an agreement for payment of the fees set forth herein has been received by the city.

(b)

Fees shall be in the amount of 0.8 percent of the selling price of each dwelling unit, not to exceed $1,200.00; provided that, in the case of construction by an owner-occupant, where no sale is contemplated prior to occupancy, fees shall be based on the amount of the value of the unit, as agreed upon between the owner and the district.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.025. - Agreement for fees.

There shall be an agreement signed prior to the issuance of any building permit between the school district and the developer that the fees shall be collected at the time of sale, or occupancy, if no sale is contemplated, and promptly given to the district. A copy of such agreement shall be provided to the director of community development at the time of issuance of building permits.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.030. - Exemptions and waivers.

(a)

Notwithstanding any other provision of this chapter, no fee shall be imposed upon residential developments in which the residence is enforceably restricted by deed to adults.

(b)

The council may waive all or any part of the fees otherwise required by this chapter where it finds that such fees do not bear reasonable relationship or will not be limited to the needs of the community for interim elementary or high school facilities caused by the development. The council shall consider such waiver only when requested to do so by the proponent of the resident development project and only after giving at least ten days' written notice to the governing board of its intention to consider a waiver. The governing board shall be heard on the question before the council grants a waiver. No waiver shall be considered unless requested prior to application for building permits. The planning commission shall make recommendations on any request.

(c)

This chapter shall not apply to any residential development where the council finds that there are specific overriding fiscal, economic, social or environmental factors which in the judgment of the council, expressed by resolution, would benefit the city to the extent that approval of such development without compliance with this chapter is justified. The planning commission shall make recommendations on any request.

(d)

In lieu of all or any part of the fees otherwise required by this chapter, the proponent of residential development may agree to dedicate, by instrument acceptable to the governing board to mitigate conditions of overcrowding. The value of such property shall be determined by the governing board, real property to be used by the governing board and the party making the dedication and such value shall be reported to the city council in writing and the agreement of the owner and the governing board as to such value shall be acknowledged thereon. Such report shall also set forth the precise boundaries of the property to be dedicated and the territory, which may include all or parts of one or more attendance areas, for which the dedication is to be credited. Upon approval by the city council and, if the city council finds the site proposed to be dedicated to be consistent with the general plan, the city council may approve the agreed value. If approved, credit for such value against the fees otherwise required by this article shall be given until exhaustion of such credit after which an agreement for payment of such fees shall be required at the time of issuance of building permits. Such credit shall be applicable to any residential dwelling in the territory specified in the agreement. Any report to the council pursuant to this section shall be made before any agreement for payment of fees has been required by the city for residential dwelling units in the territory described in the report.

(e)

In lieu of payment of any fee required by this chapter, the builder of a residential development may, at his option and expense, provide interim facilities, owned or controlled by such builder, at the place designated by the school district; and at the conclusion of the fifth school year the builder shall, at the builder's expense, remove the interim facilities from such place.

(f)

In lieu of payment of any fees required by this chapter, the builder of a residential development may submit a letter from the district stating that the developer has mitigated the conditions of overcrowding by way of a separate agreement with school facilities with the district for meeting district needs.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.035. - Schedule for mitigation.

The governing board having jurisdiction over an attendance area which is subject to this chapter shall submit a schedule specifying how it will use the fees required to solve the conditions of overcrowding. The schedule shall be in accordance with the facilities described pursuant to section 9.92.010 and shall include the school sites to be used, the classroom facilities to be made available, and the times when such facilities will be available. If the governing board cannot meet the schedule, it shall submit modifications to the council and the reasons for the modifications.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.040. - Accounting for fees received.

Any governing board receiving funds or dedications pursuant to this chapter shall maintain a separate account for any such funds and shall file a report with the council on the balance in the account at the end of the previous fiscal year and the facilities leased, purchased or constructed during the previous fiscal year. In addition, the reports shall specify which attendance areas will continue to be overcrowded when

the fall term begins and where conditions of overcrowding will no longer exist. Such report shall be filed by August 1 of each year and shall be filed more frequently if requested by the council. The city may, at any time, conduct an audit of the fees transferred to the governing board for the purpose of ascertaining whether or not such fees are being used for the purposes authorized by this article. The governing board and the developer paying fees shall cooperate in such audit.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.045. - Agreements where two governing boards receive fees.

Where two separate governing boards operate schools in the attendance area where overcrowding conditions exist for both school districts, the city council shall enter into an agreement with each of the governing boards for the purpose of determining the distribution of revenues from the fees levied pursuant to this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

This chapter shall cease to apply to any attendance area upon a determination by the council that conditions of overcrowding no longer exist.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.055. - Changed conditions.

If the severity of conditions of overcrowding in an attendance area increases after the governing board has given the council the notice described in section 9.92.010 and the governing board has determined that additional facilities beyond those described in such notice are necessary, such governing board may give additional notice to the council in the manner provided in section 9.92.010. Such notice shall, in addition, describe the additional facilities for which fees under this chapter are desired.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

This chapter shall be administered by the director of community development. The director shall, subject to approval of the board, adopt rules, policies and procedures to implement this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.92.065. - Change in attendance areas.

If the boundaries of any attendance area to which this chapter is made applicable are changed the governing board shall immediately notify the council, specifying both the new and the old boundaries, and shall furnish such additional information in connection with such change as may be requested by the council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)