§ 15.09

This chapter is enacted pursuant to Section 66477 of the Subdivision Map Act and the general police power of the city of San Rafael. The park and recreational facilities for which dedication of land and/or payment of a fee is required by this chapter are consistent with the recreation element of the San Rafael general plan.

(Ord. 1787 § 1 (part), 2002).

(a)

At the time of approval of the tentative map for a residential subdivision, the approving body shall determine the land required under this chapter for dedication, or the amount of in-lieu fees pursuant to Section 15.09.030.

(b)

The park land dedication or in-lieu fee that is required to meet the provisions of this chapter shall be imposed as a condition of approval on the tentative map.

(c)

At the time of final map or parcel map approval for recordation, the subdivider shall dedicate land, pay a fee in lieu thereof, or a combination of both, at the option of the city, for neighborhood and community park or recreational purposes at the time and according to the standards and formula contained in this chapter.

(Ord. 1787 § 1 (part), 2002).

It is found and determined that the public interest, convenience, health, welfare, and safety require that three (3) acres of property for each one thousand (1,000) persons residing within the city be devoted to neighborhood and community park and recreational purposes in accordance with the recreation element of the San Rafael general plan. The three (3) acres is justified by the existing ratio of three (3) acres of neighborhood and community parks in the city, as calculated in the San Rafael general plan.

(Ord. 1787 § 1 (part), 2002).

(a)

Where a park or recreation facility has been proposed or designated in the recreation element of the San Rafael general plan or applicable adopted specific plan or neighborhood plan, and is to be located in whole or in part within the boundaries of the property proposed for subdivision, to serve the immediate and future needs of the residents of the subdivision, the subdivider shall dedicate land for a local park sufficient in size

and topography to serve the present and future needs of the residents of the subdivision. The amount of land to be provided shall be determined pursuant to the following formula:

(1)

The formula for determining acreage to be dedicated shall be as follows:

Where

DUs = Number of new dwelling units within the proposed subdivision

Pop = Persons per dwelling unit DU

New "dwelling unit" as used in this section means a structure designed or used for residential occupancy, including, but not limited to single and multiple dwellings, apartment houses and mobile homes but not including hotels, motels and boarding houses for transient guests.

The following parkland dedication table has been established pursuant to Section 66477(a)(2) of the Subdivision Map Act.

Parkland Dedication Formula Table

(2)

Population per dwelling unit shall be based upon the latest federal census citywide average. In 2000, the Citywide average was 2.5 persons per dwelling unit.

(b)

Dedication of the land shall be made in accordance with the procedures contained in this title.

(c)

For the purposes of determining the amount of land or in-lieu fee required by this section, the number of new dwelling units shall be based upon the number of parcels or lots indicated on the tentative map, when in an area zoned for one dwelling unit per parcel; the number of new condominium dwelling units in the case of a condominium project; or the number of dwelling units approved when all or part of the subdivision is located in an area zoned for more than one dwelling unit per parcel. The term "new dwelling

unit" does not include dwelling units lawfully in place prior to the date on which the final map or parcel map is filed for recordation.

(d)

The subdivider shall, without credit:

(1)

Provide full street improvements and utility connections including, but not limited to, curbs, gutters, street paving, traffic control devices, street trees, and sidewalks to land which is dedicated pursuant to this section;

(2)

Provide for fencing along the property line of that portion of the subdivision contiguous to the dedicated land;

(3)

Provide improved drainage through the dedicated land; and

(4)

Provide other minimal improvements including, but not limited to removal of debris, clearing of the site and temporary hydro-seeding, which the recreation director determines to be essential to the acceptance of the land for recreational purposes.

(e)

The location, size and configuration of the land to be dedicated and the improvements to be made pursuant to this section shall be reviewed by the city's park and recreation commission and approved by the community services director.

(Ord. 1787 § 1 (part), 2002).

(a)

General Formula. If there is no park or recreation facility proposed in the recreation element of the San Rafael general plan, to be located in whole or in part within the land area proposed for subdivision to serve the residents of the subdivision, the subdivider shall, in lieu of dedicating land, pay a fee. The fee shall be equal to the value of the land and improvements, which would have been required for dedication in Section 15.09.025. The value of the land shall be determined in accordance with the provisions of Section 15.09.045.

(b)

Fees In-Lieu of Land, for Fifty Parcels/Lots or Less. Consistent with the provisions of 66477 of the Subdivision Map Act, if the proposed subdivision contains fifty (50) or fewer parcels or lots, the subdivider shall be required to pay a fee in an amount determined in accordance with the provisions of Section 15.09.040. However, when a condominium project, stock cooperative, or community apartment project, as defined in Section 1351 of the Civil Code, exceeds fifty (50) dwelling units, dedication of land may be required notwithstanding that the number of parcels or lots may be less than 50.

However, nothing in this section shall prohibit the dedication and acceptance of land for park and recreation purposes in subdivisions of fifty parcels or fewer, where the subdivider proposes such dedication voluntarily and the land is acceptable to the approving body.

(Ord. 1787 § 1 (part), 2002).

15.09.035 - Criteria for requiring both dedication and fee.

In subdivisions of more than fifty (50) parcels, the subdivider shall both dedicate land and pay a fee in lieu thereof in accordance with the following formula:

(a)

When only a portion of the land area proposed for subdivision is designated in the recreation element of the San Rafael general plan as a site for a local park, such portion shall be dedicated for local park purposes. A fee computed pursuant to the provisions of Section 15.09.040 shall be paid for the value of any additional land that would have been required to be dedicated pursuant to Section 15.09.025.

(b)

When a major part of the local park or recreation site has already been acquired by the city and only a small portion of land area for the park is needed from the subdivision site to complete the park, such remaining portion shall be dedicated and a fee computed pursuant to provisions of Section 15.09.040 shall be paid in an amount equal to the value of the land not dedicated, such fees to be used for the improvement of the existing park and recreation facility or for the improvement of other local parks and recreation facilities in the area serving the subdivision.

(Ord. 1787 § 1 (part), 2002).

15.09.040 - Amount of fee in-lieu of land dedication.

(a)

When a fee is to be paid in lieu of land dedication, the amount of such fee shall be based upon the fair market value of the amount of land, which would otherwise be required for dedication pursuant to Section 15.09.025. The fee shall be determined by the following formula:

Where

DUs = Number of new dwelling units within the proposed subdivision as defined in Section 15.09.025

Pop = Persons per dwelling unit as defined in Section 15.09.025

FMV = Fair market value per buildable parkland acre as determined by Section 15.09.045

Buildable parkland acre = A typical acre of a residential subdivision in San Rafael with a slope less than ten percent (10%) and located in other than an area on which building is excluded because of flooding, easements, or other restrictions.

Minimum improvements costs = The costs associated with providing park land area improvements identified in Section 15.09.025(d).

(d)

Fees to be collected pursuant to this section shall be approved by the community services director and the community development department.

(e)

By resolution, the city council may adopt a flat, park dedication in-lieu fee amount for each new dwelling unit created in a residential subdivision. Should a flat in-fee amount be adopted, it shall be regularly updated based on the current fair market value of a buildable, parkland acre of land, as required by Section 15.09.045 of this chapter.

(Ord. 1787 § 1 (part), 2002).

The fair market value per buildable parkland acre shall be determined by a licensed appraiser and updated regularly to reflect current land values. The current fair market value shall be used in determining a specific park in-lieu fee amount per dwelling unit, as adopted by resolution of the city council.

(Ord. 1787 § 1 (part), 2002).

Whether the approving body accepts land dedication or elects to require payment of a fee in lieu thereof, or a combination of both, shall be determined by consideration of the following:

(a)

The compatibility of the land dedication with the San Rafael general plan;

(b)

The natural features, access, and location of land in the subdivision available for dedication;

(c)

The size and shape of the subdivision and land available for dedication;

(d)

The feasibility of dedication; and

(e)

The location of and proximity to existing and proposed park sites and trailways.

(Ord. 1787 § 1 (part), 2002).

Credit may be given for private recreation facilities or common, open area in the subdivision only as hereinafter provided. When private recreation facilities and common open areas designed to be usable for active recreational purposes are provided in a proposed planned development, real estate development, stock cooperative, or community apartment project, as defined in Sections 11003, 11003.1, 11003.2, 11003.4 and 11004, respectively, of the Business and Professions Code, or condominiums, as defined in Section 783 of the Civil Code, partial credit, not to exceed fifty percent (50%), may be given against the requirement of land dedication or payment of fees in lieu thereof if the city finds that it is in the public interest to do so and that the following standards are met:

(a)

Yards adjacent to each residential unit, setbacks, and other open areas required by the zoning and building ordinances and regulations shall not be included in the computation of such private recreation area; and

(b)

Private park and recreation facilities shall be owned by a homeowners' association composed of all property owners in the subdivision and being an incorporated nonprofit organization capable of dissolution only by a one hundred percent affirmative vote of the membership, operated under recorded land agreements through which each lot owner in the neighborhood is automatically a member, and each lot is subject to a charge for a proportionate share of expenses for maintaining the facilities, or subject to a covenant running with the land requiring continued operation by the developer or owner; and

(c)

Use of the private park and recreation facilities are restricted for park and recreation purposes by recorded covenant which runs with the land in favor of the future owners of the property and which cannot be defeated or eliminated without the consent of the city or its successors; and

(d)

The proposed private park and recreational facilities are designed for active use, and are reasonably adaptable for use for park and recreation purposes, including recreational community gardening, children's play apparatus areas, picnic areas, hiking, jogging, and bicycle trails and paths, or landscaped exercise

areas, taking into consideration such factors as size, shape, topography, geology, access, and location; and

(e)

The facilities that are proposed are in substantial accordance with the provisions of the recreation element of the San Rafael general plan; and

(f)

Open space land intended for the protection of environmentally sensitive areas or to protect views and ridgetops or hillside areas not suitable for active recreation use shall not be credited, regardless if passive recreation use (trails, pedestrian access) is allowed in these areas; and

(g)

The private facilities for which credit may be given must be a minimum of one acre and with at least three (3) of the local park basic elements listed below, or a combination of such and other recreation improvements that will meet the specific recreation needs of future residents of the area:

Before credit is given, the city shall make written findings that the above standards are met.

(h)

The determination of the city as to whether credit shall be given and the amount of credit shall be final and conclusive.

(Ord. 1787 § 1 (part), 2002).

(a)

Fees determined pursuant to Section 15.09.040 shall be paid to the city and shall be deposited into the subdivision park trust fund, or its successor. Money in the fund, including accrued interest, shall be expended solely for acquisition, development, or rehabilitation of park land, or improvements related thereto.

(b)

The city shall develop and maintain a schedule specifying where, when and how it will use the dedicated land, in-lieu fees or both to develop park and recreational facilities to serve the residents of the subdivision.

(c)

Collected fees shall be committed within five (5) years of receipt of payments or within five (5) years after the issuance of building permits on one half of the lots created by the subdivision, whichever occurs later. If such fees are not committed, these fees, less an administrative charge, shall be distributed and paid to the then record owners of the subdivision in the same proportion that the size of their lot bears to the total area of all lots in the subdivision.

(d)

The city finance director shall report annually to the city council on income, expenditures, and status of the subdivision park trust fund, as part of the annual city budget.

(Ord. 1787 § 1 (part), 2002).

The following are exempted from the provisions of this chapter:

(a)

Subdivisions containing four (4) or fewer parcels or lots that are not used for residential purposes; provided, however, that a condition shall be placed on the approval of such tentative map that if a building permit is requested for construction of a residential structure or dwelling units on one or more of the parcels or lots, the in-lieu fee shall be required to be paid by the property owner of each such parcel or lot, as a condition to the issuance of such permit;

(b)

Commercial or industrial subdivisions;

(c)

Condominium projects or stock cooperatives which consist of the subdivision of airspace in an existing apartment building which is more than five (5) years old and no new dwelling units are added.

(d)

The approving body may, upon receipt of a written request, waive the requirements of Chapter 15.09 for those dwelling units which are to be approved and built as below market rate (BMR) units, as defined by

the San Rafael general plan.

(Ord. 1787 § 1 (part), 2002).

The value of park and recreation improvements in addition to those required by Section 15.09.025(d) shall be credited against the fees and/or dedication of land required by this chapter provided that:

(a)

The subdivider shall apply to the community services director for permission to construct such improvements;

(b)

If permission is granted, the community services director, in consultation with the department of public works, shall determine the dollar value of the improvements.

(Ord. 1787 § 1 (part), 2002).

All land offered for dedication for public park or recreational purposes, shall have access to at least one existing or proposed public street. This requirement may be waived by the city council if the city council determines that public street access is unnecessary for the maintenance of the park area or use thereof by residents.

(Ord. 1787 § 1 (part), 2002).

If during the ensuing time between dedication of land for park purposes and commencement of first-stage development, circumstances arise which indicate that another site would be more suitable for local park or recreation purposes serving the subdivision and the neighborhood (such as receipt of a gift of additional park land or a change in school location), the land may be sold upon the approval of the city council, with the resultant funds being used for purchase of a more suitable park site. Should the city decide to dispose of the property, the subdivider or his successor shall have a right of first refusal to purchase the property at fair market value.

(Ord. 1787 § 1 (part), 2002).

Except as expressly prohibited by Section 66477 of the Subdivision Map Act, the terms and procedures contained in this chapter may be waived or modified by a development agreement adopted pursuant to Section 65864 et seq. of the California Government Code.

(Ord. 1787 § 1 (part), 2002).

Chapter 15.10 - EASEMENTS AND RESTRICTIONS