Conditions for a Building Permit

[PE_PLS]

I know this question falls more into the realm of civil engineering than land surveying, but I think some folks on this board may be able to provide helpful input, especially since the issue of subdivisions come into play.

I surveyed and am preparing preliminary grading plans for 2 lots located in Millbrae, CA. These lots were created by Parcel Map back in the early 1980’s. The 2 lots are near the end of a private road/driveway that serves a total of 10 lots. This private road doesn’t come close to conforming to current design standards. To make matters worse the road gains access from a very busy, curvy, dangerous main road, and the access is at a very sharp angle and slope. The private road/driveway is also in poor shape, it hasn’t had any maintenance for a very long time.

As I stated earlier, we are near the end of this private road that is approximately 500 feet long. After submitting our preliminary grading and drainage plan we received back a list of comments from public works. All of the comments were reasonable IMO except the last 2. The last 2 comments follow:

1. “Sharp turns and narrow road will create hazardous conditions and traffic congestion at Millbrae Avenue and on the easement areas (the private road), significantly affecting motorists at Millbrae Avenue and the residents in this area. The entrance to the easement area (the private road) also has a steep slope, over 17%, which is above the allowable slope for entrances. Applicant shall provide a report to the City on how to address these issues prior to the approval of this application.”

Here is my question/problem: The comment shown above all pertains to the private road where it intersects the public road, approx 400 feet from our site. When the TPM was approved in the early 1980’s the city never once brought this issue to bear. In their staff reports from then they make no mention of this issue. The TPM was approved and the PM was filed. From a legal standpoint, can a city place this type of burden on an individual trying to obtain a building permit? It seems they had their chance during the subdivision phase of the project, they shouldn’t have allowed 2 lots if the road was undersized. Now they are asking my client to fix the entrance to the private road (which would cost at least $100k) as a condition of his building permit. Is this legal?

Comments?

The second comment by the city is that the applicant repave the entire private road at his own cost, or form an HOA to share in the cost of repaving the road. Does this not place an undue burden on the applicant? I can understand them asking the applicant to repave that portion of the road fronting the applicants land (approx 90 feet) but the entire 500 feet of the road? Again, this seems like an undue burden that could’ve been a COA for the original subdivision in the early 1980's but doesn’t seem to be fair at this time when trying to obtain a building permit.

I have always thought that once a TPM is approved and a PM is filed that a city can't condition a project to the same extent as if someone was doing a subdivision. All the applicant wants is to build a SFR, and these conditions seem to be outside a normal range of conditions for a SFR. Do municipal codes address the extent to which conditions can be placed for building a SFR on an approved lot?

I don’t have a lot of experience with these types of issues, I asked Public Works to point out in the city municipal code where it says they can require this massive set of offsite improvements. They are consulting the City Attorney and will get back to me. In the meantime, does anyone have any comments?

[mpallamary]

Are these conditions contained in the conditions of approval for the project? It is not uncommon for a city/county to impose deferred conditions on a project. The logic is that at the time of subdivision, there is not enough money in place to pay for the improvements. If the property is subdivided, value is created and money becomes available. These conditions are tied into the issuance of building permits. This also includes formation of a private road maintenance association and resultant improvements. Normally when this occurs, the city/county does not want to be responsible for another public road and that is why the burden is imposed on the subdivider. When a building permit is issued, that is new money again and as a general rule, only the new homeowners (owners of the lots within the subdivision) benefit from the street improvements. This is why private roads are permitted to a lesser design standard.

Assuming the deferred improvement conditions were imposed on the project as a condition of project approval, this would have been based upon the impacts the project would have had on the community. This is called an exaction. Subdivision conditions are the product of the discretionary process. From the subdivider's perspective, their acceptance is purely a business condition. Many projects fail at the discretionary process because the conditions are too onerous and the project doesn't pencil out.
That being said, if the conditions were not imposed on the project when it was being evaluated, then in all likelihood, they cannot be imposed on the project now. The law is real clear in this regard. Once the tentative map has been approved and the conditions satisfied, the remaining work is ministerial and the city/county cannot impose anymore conditions on the project. Because a subdivision is a discretionary process, the city/county only get one bite of the apple. if they failed to identify an impact when they should have, that is their problem.
I hope this make sense.

[PE_PLS]

Thanks Michael for your comments. I should've been clearer in this regard.

These conditions were NOT on the COA for the original subdivision. They are being added now as conditions for the building permit.

I should've stated that there were several COA for the original subdivision that were all met. These included putting in a water line, a sewer line, a storm drain, and installing a fire hydrant. All these were required for the original subdivision, and all have been constructed.

Now they are putting conditions on these offsite improvements as conditions for a building permit.

I guess one of my main questions is can they condition a building permit to this level, to require this many offsite improvements for a simple building permit.

To use your analogy Michael: They only get one bite of the apple for a subdivision. Is the building permit a new apple that they can take another bite from?

Any input from those on here who are employed on the public works side of things? Is this common where you practice?

[Ian Wilson]

Dylan:

They only get one bite of the apple for a subdivision. Is the building permit a new apple that they can take another bite from?

Short answer: Yep, they do.

The CREATION of a parcel is subject to certain restrictions and regulations. The requirement is to produce a LEGAL parcel that meets statutory and local standards as of the date it is created.

The creation of a parcel does NOT imply the utility of a parcel. It does not imply that the same conditions that are in place at the time of the Parcel Map’s approval will hold when time comes to develop the parcel.

The permitting process is entirely separate from the subdivision process.

.

[Anthony Maffia]

It's a private road, though, and the new lot owners are not the fee owners of the road. I don't think the city has jurisdiction.

Also, that means that the new lot owners are completely at the mercy of the other 8 lot owners, and if they don't want to commit to spending $20K - $100K each, then the new lot owners are out of luck.

It sounds like a city staffer wanting to improve the world.

[PE_PLS]

Can the owner at the beginning of the road, where the road is too steep according to city standards, hold hostage the project by refusing to allow the road to be redesigned?

Ian, though the city is calling this a COA of the building permit, doesn't this sure sound like taking 2 bites of the same apple? Nothing as far as physical improvements are concerned have changed since the PM, but now they have a problem with something that was never a problem before when they issued the original COA.

To cast it more bluntly, if I did a PM in 2008 with a private road, and went to get building permits a year later and the city changed the road design standards so that the road didn't measure up, could they require me to design a whole new road?

[Ian Wilson]

” To cast it more bluntly, if I did a PM in 2008 with a private road, and went to get building permits a year later and the city changed the road design standards so that the road didn't measure up, could they require me to design a whole new road?”

Yes. They could.

You are asking the local jurisdiction to do something.

They can agree to do it as it or they can agree to do it with conditions.

Look at it another way.

Say I purchased an undeveloped lot in a subdivision approved in 1958. Way back then, the main road was a two lane country road. Now, it’s a 6 lane busy highway. In order for me to build my new office building, the jurisdiction wants me to put in a traffic light.

What the heck!?! It wasn’t a condition back in 1958!

The only difference between your case and this hypothetical is the time span.

And, a lot can happen in a year.

Increase in traffic. New specific plan. New staff. New department head. New local government. Etc.

Again, the subdivision does not grant a right to develop the property under the conditions in place at the time of the subdivision. The right to develop the property is a separate item.

[Anthony Maffia]

The city could charge an impact, signal, or traffic mitigation fee, but not the full cost of a signal light. Only the portion of the impact attributed to the development.

I unfortunately agree that having a legal lot doesn't guarantee a buildable lot.

[D Ryan]

Speaking strictly to the issue of the previous Parcel Map, the subdivision created a legal lot for sale, lease or finance, not for developability. It is mostly unrelated to the current requirements. For a parcel map, they may not even be able to require immediate improvements except in certain instances. See 66411.1 SMA. Now if they actually spelled out those improvements at the time of the subdivision, but deferred them, you might have a case to limit them to what was spelled out-but you already said that's not the case.

No opinion on whether they are exceeding some other authority.

[subman]

Review: Dolan v. City of Tigard, 512 U.S. 374 (1994)
http://en.wikipedia.org/wiki/Dolan_v._City_of_Tigard

Review the Initial Study that was done for the Parcel Map, particularly the Transportation/Traffic and Public Services (Fire Protection) Environmental Factors. Most likely they were determined to be less than significant, not requiring any mitigation.

Review the Agency Fire Code to see what conditions can apply to "Access" under a ministerial building permit.

Review the Agency Zoning Code. Some types of building permits can trigger the requirement to construct "standard public improvements" along your frontage. In my agency, that requirement is not triggered till you get multi-residential structures of three units or more and commercial/industrial.

Confirm that there was no Conditional Use Permit that was attached to the Vesting Parcel Map which had additional conditions imposed on the property prior to issuance of a building permit or prior to occupancy.

I deal with both public works grading and improvement conditions on all levels of development as a licensed civil engineer and also represent my agency as a licensed land surveyor. In my opinion, I would be beyond my authority (in my public works jurisdiction) if I were to ask for those types of offsite improvements under a single family building permit. However, the Fire Code could have some life/safety access requirements under a building permit that could take priority.

See SMA 66411.1 with respect to limitations on improvements that could be imposed on a parcel map of fewer than 5 parcels. The local agency would have needed to prove a public health and safety condition and/or a finding related to orderly development to impose such offsite conditions (paving and reconstruction of the driveway intersection. Feel free to IM me and we can exchange phone numbers. I would be happy to discuss further.

[Anthony Maffia]

Oh, yes, fire dept. can require a drivable surface and turn-around, even for just a single-family home, depending on the distance from a road to the structure.

These requirements can be very cumbersome. These can be partially mitigated with fire sprinklers & fire hydrants.

[land butcher]

City of Tustin.
My son's neighbor, who has a corner house - garage on side st, started renovating his kitchen while trying to contact the city about permits. Tustin takes weeks to return calls, if ever. Finally he went over there and they had a site visit. Between the house and garage was a permitted addition. Being on the side street the dwy was about 10 ft long.
The City could not find their copy of the permit for the addition.
The City recently passed a rule requiring 20 ft min length dwys. They want to ban all overnight street parking, even at apt bldgs where they included street parking as part of the complex's parking areas.
The site visit the city determined that the ceiling of the addition was 2 inches too low. The owner didn't like the addition so having to rebuild it didn't really bother him exc he didn't want to do it now.
Since the addition had to be rebuilt that falls into structural work. Falling into the structural work triggered the 20 ft dwy min so he had to move his garage to allow for a 20ft dwy.
A kitchen remodel resulted in the city requiring him to remove the addition and move his garage have a no-see-thru temp fence around the property and porta potty and 3 rows of sandbags, so in the sense of might as well since I'm here he tore the house down to the studs and rebuild it.
The city also told him that he could not stucco the house or reroof it until the hardscape and landscape was in. He told them he would not do the lawn until const was finished and they relented on that. The const work destroyed his one year old sod lawn.
So then the recent rains are predicted. The city allows him to cover his roof with plastic and REQUIRES him to cover all dirt areas with plastic. This is in addition to the sand bags.
Not sure what the environment damage is to discarding about 6000 sq feet of visqueen.
He was also required to regrade his lot (this is a tract of homes built in the mid 60s) and install an area drain system. He also installed a concrete panel wall that sets on a conc curb. The city reviewed his grading plan, approved the wall (which was built while my son was out of town) that blocked natural drainage off my sons property to this neighbors. Due to massive puddling we just finished installing our own area drain system. I guess the city is blind at the PLs.

I guess what I am saying is that the local agencies can do pretty much what they want. And when work is slow like now they get real nit picky.

[PE_PLS]

Dennis,

Thanks for your suggestion regarding the Supreme Court case. The owner and I informed the city that we would not satisfy their conditions and were prepared to seek legal action. Public Works consulted with the City Attorney and backed down. Hopefully smooth sailing from here.