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CITY COUNCIL AGENDA ITEM NO. 26

Meeting Date: August 26, 2003

Subject/Title: Approve an Ordinance to Amend the Brentwood Municipal Code to Permit the City Manager to Approve Final Maps and to Execute Subdivision Agreements

Submitted by: Dennis Beougher, City Attorney

RECOMMENDATION
Approve an Ordinance to amend the Brentwood Municipal Code to add two new chapters, Chapter 16.165 and Chapter 16.166, to permit the City Manager to approve final maps and to execute subdivision agreements.

BACKGROUND
The Subdivision Map Act (“Map Act”) contains detailed provisions governing the content and form of final maps. The Map Act establishes the persons who are qualified to prepare the final map, the standards for preparation, and the various certificates and acknowledgements required for the final map.

For example, the final map must be prepared under the direction of a registered civil engineer or a licensed land surveyor and be based on a survey. Only final and parcel maps (not tentative maps) may be filed for recording in the county recorder’s office. The written consent of all parties having any record title interest in the real property proposed to be subdivided must be obtained as a prerequisite to the recordation of a final or parcel map.

Various certificates, statements, and acknowledgments must accompany the final map under Government Code sections 66435-66443.

● A statement signed and acknowledged by all parties having any record title interest in the property consenting to preparation and recordation of the final map must appear on the map. Gov’t Code § 66436. Excluded from this requirement are various lienholders, parties owning easements, rights-of-way, owners of beneficial interests or trustees under deeds of trust (but not both), and holders of other interests that cannot ripen into a fee. Gov’t Code § 66436.

● Certain statements of dedication, including dedications of interests in real property for specified public purposes, such as streets and public utility easements. Gov’t Code § 66439.

● A certificate or statement for execution by the clerk of each approving legislative body, stating that the body approved the map and accepted any real property offered for dedication for public use. Gov’t Code § 66440.

● The certificate or statement of a city engineer or county surveyor. Gov’t Code § 66442(a). It must state that the official has examined the map, that the subdivision is substantially the same as it appeared on the tentative map, that all applicable provisions of the Map Act and local ordinances have been complied with, and that the official is satisfied that the map is “technically correct.” This certificate or statement must be completed and filed with the appropriate legislative body within 20 days from the date the final map is submitted to the official by the subdivider for approval. Gov’t Code § 66442(b).

Multiple final maps may be filed before expiration of the tentative map if (1) at the time the tentative map is filed, the subdivider informs the advisory agency of its intent to file multiple final maps, or (2) the city and the subdivider later concur in the filing of multiple final maps. The right of the subdivider to file multiple final maps under this section does not limit the city’s authority to impose reasonable conditions relating to the filing of multiple final maps. Gov’t Code § 66456.1.

The final map must be filed with the city before the tentative map expires. The expiration of the tentative map terminates all proceedings, and no final map or parcel map shall be filed without first processing a new tentative map. Once a timely filing is made, subsequent actions of the city, including but not limited to processing, approval, and recording, may lawfully occur after the date of expiration of the tentative map. Gov’t Code § 66452.6(d). Delivery to the county surveyor or city engineer shall be deemed a timely filing for purposes of this section. The Map Act does not indicate what constitutes a “timely filing.” It usually goes beyond presenting the map to the city and includes such tings as improvement agreements, bonds, evidence of other agency approvals, and a completed plan check.

Various court decisions have affirmed that the approval of a final map is ministerial if the final map conforms to a properly approved tentative map and the subdivider has complied with all the conditions of approval attached to the tentative map.

The county surveyor or the city engineer has 20 days to attach a certificate that the final map has been examined, that the subdivision as shown is substantially the same as it appeared on the tentative map, that all provisions of the Map Act and any local ordinance applicable at the time of approval of the tentative map have been complied with, and that the map is technically correct. However, there can be no ministerial approval of a final map when the conditions are unfulfilled; in fact, the Map Act requires disapproval of the map when there has not been substantial compliance with the conditions imposed. “Approval of the final map in effect is a confirmation that the tentative map requirements have been fulfilled.” Kriebel v. City Council, 112 Cal. App. 3d 693, 703 (1980).

ANALYSIS
The city council may delegate, by ordinance, the authority to approve or disapprove a final map to the city or county engineer, surveyor, or other designated official. Gov’t Code § 66458(d). The ordinance that permits an official to approve or disapprove final maps must require the official to notify the city council when he or she is reviewing a map, contain specified time limits, provide notice of pending approval or disapproval by the official, state that the official’s decisions may be appealed to the city council, and require periodic legislative review of the delegation of authority. Gov’t Code § 66458(d).

If the city council or a designated official does not approve or disapprove the map within the prescribed time, or within any authorized extension, and the map conforms to all requirements and rulings, it shall be deemed approved, and the city clerk shall certify or state its approval thereon. Gov’t Code § 66458(b). Here, in contrast to the tentative map, automatic approval does occur, since approval is ministerial.

The Subdivision Map Act, Government Code section 66458(d), permits the City Council to provide by ordinance for the approval or disapproval of final maps by the City Manager or other designated official. The Subdivision Map Act further permits the City Council to permit the designated city official to accept, subject to improvement, or reject dedications and offers of dedications that are made by a statement on the map provided that five conditions are met as stated below:

1) the designated official shall notify the legislative body at its next regular meeting after the official receives the map that the official is reviewing the map for final approval;
2) the designated official shall approve or disapprove the final map within 10 days following the meeting of the legislative body that was preceded by the notice in (4) below;
3) the designated official’s action may be appealed to the legislative body;
4) the clerk of the legislative body shall provide notice of any pending approval or disapproval by the designated official, which notice shall be attached and posted with the legislative body’s regular agenda and shall be mailed to interested parties who request notice;
5) the legislative body shall review periodically the delegation of authority (suggested every 3 years) and except as specifically authorized by this subdivision, the processing of final maps shall conform to all procedural requirements of this division.

In addition, the Subdivision Map Act, permits the City Council to approve an ordinance that permits a subdivision agreement to be executed by a designated public official provided the agreement is in accordance with City standards.

Staff believes that as the approval of the map is absolutely ministerial in action that it is appropriate to have the City Manager approve the map and to execute any related subdivision agreements that conform to the City’s standard subdivision agreements. It will lessen the time for acceptance, be a more effective use of city staff’s time, and reduce the workload of the City Council and staff.

Attachment:
Ordinance

ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING TITLE 16, SUBDIVISIONS AND LAND DEVELOPMENT, TO ADD CHAPTER 16.165 AND CHAPTER 16.166 TO PROVIDE THAT THE CITY MANAGER MAY APPROVE OR DISAPPROVE A FINAL SUBDIVISION MAP AND ACCEPT, SUBJECT TO IMPROVEMENT, OR REJECT DEDICATIONS AND OFFERS OF DEDICATIONS THAT ARE MADE BY A STATEMENT ON THE MAP AND ALSO TO APPROVE SUBDIVISION AGREEMENTS IN ACCORDANCE WITH CITY STANDARDS AND TO DELETE BRENTWOOD MUNICIPAL CODE SECTION 16.070.030(D) AND SECTION 16.070.040

WHEREAS, Government Code section 66458(d) permits the City Council to provide by ordinance for the approval or disapproval of final maps by the City Manager or other designated official; and

WHEREAS, Government Code section 66458(d) further permits the City Council to permit the designated city official to accept, subject to improvement, or reject dedications and offers of dedications that are made by a statement on the map provided that five conditions are met as stated below:

1) the designated official shall notify the legislative body at its next regular meeting after the official receives the map that the official is reviewing the map for final approval;
2) the designated official shall approve or disapprove the final map within 10 days following the meeting of the legislative body that was preceded by the notice in (4) below;
3) the designated official’s action may be appealed to the legislative body;
4) the clerk of the legislative body shall provide notice of any pending approval or disapproval by the designated official, which notice shall be attached and posted with the legislative body’s regular agenda and shall be mailed to interested parties who request notice;
5) the legislative body shall periodically review the delegation of authority except as specifically authorized by this subdivision, the processing of final maps shall conform to all procedural requirements of this division; and

WHEREAS, Government Code section 66462 permits the City Council to approve an ordinance that permits a subdivision agreement to be executed in accordance with City standards.

NOW, THEREFORE, the City Council of the City of Brentwood does hereby ordain as follows:

Section 1. Title 16 (Subdivisions and Land Development), Chapters 16.165 and 16.166 are hereby added to the Brentwood Municipal Code to read as follows:

“Chapter 16.165 City Manager Approval of Final Map and Subdivision Agreements

16.165.010 City Manager’s Approval of Final Maps.
The City Clerk shall notify the legislative body at its next regular meeting after the City Manager receives the map that the City Manager is reviewing the map for final approval; the City Manager shall approve or disapprove the final map within 10 days following the meeting of the legislative body that was preceded by the notice required by this subsection.

16.165.020 Appeal.
The City Manager’s action may be appealed to the City Council, as provided in Brentwood Municipal Code section 16.170.030[C] through [H], inclusive.

16.165.030 City Clerk’s Notice.
The City Clerk shall provide notice of any pending approval or disapproval by the City Manager, which notice shall be attached and posted with the City Council’s regular agenda and shall be mailed to interested parties who request notice.

16.165.040 Periodic Review.
The City Council shall review the delegation of authority to the City Manager every three years from the effective date of this ordinance, or as soon thereafter as is practical.

16.165.050 Conformity.
Except as specifically authorized by this subsection, the processing of final maps shall conform to all procedural requirements of this chapter.

16.166.10 Subdivision Agreements.
The City Manager is authorized to execute subdivision agreements, as permitted by Government Code section 66462(d), in accordance with City standard subdivision agreements. The City Manager’s action approving or disapproving a subdivision agreement may be appealed to the City Council as provided in Brentwood Municipal Code section 16.170.030[C] through [H], inclusive. The City Council shall review the authority granted to the City Manager by this subsection every three years from the effective date of this ordinance, or as soon thereafter as is practical.”

Section 2. Subsections 16.070.030(D) and 16.070.040 of the Brentwood Municipal Code are repealed.

Section 3. Severability.
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The city council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.

Section 4. Effective Date.
This ordinance shall take effect thirty (30) days after passage and shall within fifteen (15) days after passing, be posted in accordance with section 36933 of the Government Code of the State of California with the names of those City Councilmembers voting for or against it.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 26th day of August, 2003, by the following vote:
 

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