HomeMy WebLinkAboutMINUTES - 07212009 - C.124 (2)RECOMMENDATION(S):
For the purpose of advancing subsequent Board of Supervisors consideration of approval of
a parcel map for this project, ACCEPT the Staff Recommended Grant Deed of
Development Rights.
FISCAL IMPACT:
None. The Subdivider is responsible for staff costs in the processing of the proposed parcel
map.
BACKGROUND:
Review of Vesting Tentative Map Application
In 2005, the owners of an approximate 38-acre parcel applied to the County for a Vesting
Tentative Map (VTM) to subdivide the site into three parcels and a remainder. The site is
located in the area east of the City of Clayton on the north side of Marsh Creek Road, and
fronting on a private road, Bragdon Way. The General Plan designates the site Agricultural
Lands; the site is zoned General Agricultural (min. 5-acre parcel size required). All of the
proposed parcels in the original subdivision application exceeded five acres in area.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 07/21/2009 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Bob Drake, (925)
335-1214
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: July 21, 2009
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: EMY L. SHARP, Deputy
cc: Morgan Miller Blair, Patricia Curtin, Kendall & Roger Habig, Public Works Department, Gary Huisingh, Public Works Department, Jim Stein, East Bay
Regional Park District, Brad Olson, Dept. of Conservation & Development, Bob Drake
C.124
To:Board of Supervisors
From:Catherine Kutsuris, Conservation & Development Director
Date:July 21, 2009
Contra
Costa
County
Subject:Report on Proposed Deed Restriction for Approved Minor Subdivision, File #MS05-0030, East Clayton
(Bellecci & Associates - Applicant; Habigs - Owners)
The application was heard by the County Planning Commission on April 8, 2008. After
accepting testimony, the Commission closed the hearing and approved the proposed
subdivision subject to conditions.
Following the Commission decision, Save Mt. Diablo and East Bay Regional Park District
filed a joint appeal on the Commission’s decision. The appeal addressed several concerns
but fundamentally challenged the appropriateness of dividing this site.
BACKGROUND: (CONT'D)
Board of Supervisors 7/8/2008 Hearing on SMD/EBRPD Appeal of County Planning
Commission Decision
On July 8, 2008, the Board of Supervisors conducted a hearing on the appeal. Prior to the
hearing, there had been discussions with the applicant and appellants that resulted in
proposed modifications to the conditions of approval for the project that were accepted by
all, and which were reflected in the staff recommendation at that hearing. The resultant
proposal provided for:
• A reduction in the number of parcels for this project from three parcels and a
remainder, to two parcels and a remainder as required by COA #1; and
• Provision of a deed restriction covering the whole of the 38-acre property including
the remainder parcel to be granted to both the County and East Bay Regional Park
District (EBRPD); the building envelopes on the two parcels must be one-acre; the
building envelope on the Remainder must be 1 ½ acres; with specified exceptions,
the deed restriction is intended to prohibit the establishment of structures outside of
the building envelopes (COA #14);
The modified proposal also provided that the Subdivider must concurrently record deed
restrictions and disclosures pertaining to other project requirements (e.g., design of
buildings, soil stabilization investigations, grading restrictions, etc.) with the parcel map.
After accepting testimony and closing the hearing, the Board approved the project
subject to those modifications (VTM Approval).
Receipt of Proposed Deed Restriction
Following the VTM Approval, the Subdivider submitted a draft Grant Deed of
Development Rights intended to satisfy Conditions #1 and #14. The Grant Deed includes
as one of the intended attachments an Exhibit B, which includes:
• A Draft Building Envelope Plan & Parcel B Boundary Change; and
• A revised Vesting Tentative Map that reflects the reduction in the number of
parcels required by the VTM Approval. It also includes metes-and-bounds
descriptions of the building envelopes for the two proposed parcels (“B” and “C”)
and the Remainder pursuant to Condition #1. Pursuant to provisions of the proposed
Grant Deed of Development Rights, these envelopes are intended to indicate the
general location of the envelopes, and that they will be affixed before permits are
sought on each of the proposed parcels and remainder.
Discussion
Following a review by staff, the Subdivider and staff have agreed to several
modifications in the proposed Grant Deed of Development Rights. Those modifications
are reflected in the attached document which staff is recommending that the Board accept
so that processing of the proposed parcel map for this project may proceed.
This item is only to consider the proposed Grant Deed of Development Rights for this
project
ATTACHMENTS
Grant Deed of Development
Exhibit B - Maps
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MMB\977854
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Contra Costa County
Department of Conservation and Development
Community Development Division
651 Pin Street, N. Wing, 2nd Floor
Martinez, CA 94553
APN: 078-090-025
______________________________________________________________________________
(Space Above This Line For Recorder’s Use Only)
GRANT DEED OF DEVELOPMENT RIGHTS
Roger and Kandell Habig (collectively referred to as “Grantor”), grants to the COUNTY
OF CONTRA COSTA, a political subdivision of the State of California (“County”), and the East
Bay Regional Park District (“EBRPD”) (collectively “Grantee”), deed restrictions and provisions
set forth in this document relating to Grantor’s real property more particularly described in
Exhibit A attached hereto.
RECITALS
WHEREAS, Grantor is the sole owner in fee simple of that certain property in Contra
Costa County, comprising Assessor’s Parcel No. 078-090-025, and more particularly described
as Parcels B and C and the Remainder, shown and so designated on the Parcel Map for
Subdivision MS 05-0030, filed in Book ___ of Maps at Page ____ in the Office of the County
Recorder of Contra Costa County, California (the “Property”);
WHEREAS, the Property is located adjacent to the EBRPD’s Clayton Ranch Land Bank;
WHEREAS, the Property is located in the County;
WHEREAS, on July 8, 2008, the County Board of Supervisors approved a vesting
tentative map for Minor Subdivision MS 050030 approving the subdivision of the Property into
two parcels and a remainder parcel subject to conditions of approval (the “Project”); the decision
of the Board of Supervisors requires a reduction in the number of parcels that had been proposed
from three parcels and a remainder to two parcels and a remainder by the elimination of Parcel
A;
WHEREAS, as required by Condition of Approval Number 14 to MS 050030, Grantor
grants to Grantee, and Grantee desires to accept, this Grant Deed of Development Rights
(“Agreement”) relating to the Property; and
NOW, THEREFORE, in consideration of the recitals set forth above and the mutual
covenants, terms, conditions, and restrictions contained herein, Grantor hereby grants and
conveys to Grantee this Agreement, and Grantor and Grantee agree as follows:
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1. Grant Date.
a. Notwithstanding anything to the contrary herein, the Agreement shall
become effective upon recordation of a Parcel Map for MS 050030.
b. Before recording the Parcel Map, an instrument may be recorded
indicating that the Property will be encumbered as set forth in this Agreement. If the Parcel Map
is not recorded, the instrument shall have no force and effect.
2. Prohibited Uses and Restrictions.
a. Parcels B and C on the Property shall contain a building envelope of one
(1) acre for each parcel. A residence (limited to 5,000 square feet plus an 800 square foot
garage) and accessory buildings may be constructed within each building envelope. Other
buildings and structures such as pools, and tennis and sports courts, may be constructed within
the building envelopes and shall not be constructed outside the building envelope. No residential
second units may be constructed on Parcels B and C. Sewer/leach systems, well sites, water
tanks, fences, gates, utilities, driveways and roads are allowed outside the building envelopes.
b. The Remainder Parcel on the Property shall contain a building envelope of
one and a-half (1 ½) acres. A residence and other structures exist on the Remainder Parcel. Any
additional buildings including a residential second unit and accessory buildings and other
structures including pools, tennis and sports courts must be constructed within the building
envelope. A residential second unit on the Remainder Parcel shall not exceed 1,200 sq. ft. plus a
200 square foot garage. The existing out building and trailers shall be allowed to remain outside
the building envelope with the provision that Grantor shall demonstrate to the satisfaction of the
Zoning Administrator that the storage or use of the trailers are otherwise consistent with the
County Code. Building permits to allow repair or maintenance of these buildings outside the
envelope are allowed up to 50% of their value. These buildings may not be expanded or
replaced if more than 50% is damaged or is lost.
c. The general location of the building envelopes for Parcels B and C and the
Remainder Parcel are shown on the attached map (Exhibit B). At least 30 days prior to seeking a
building permit for a new structure or expansion of an existing structure on a parcel or
Remainder Parcel:
i. The owner of the respective parcel or Remainder Parcel shall
propose a final building envelope for the review and approval of the Zoning Administrator. The
proposal shall include a plat map and legal description of the proposed final building envelope
that have been certified by a licensed land surveyor.
The proposal shall also include a second plat map that identifies
existing and proposed structures drawn to scale and labeled as to use, and their respective
distances to the proposed building envelope on the property. The shape of the building envelopes
may change but the size and general location shall not change from that shown on Exhibit B.
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Prior to clearance of a building permit, the property owner shall
provide evidence to the Department of Conservation and Development, Community
Development Division that the Final Building Envelope which has been approved by the Zoning
Administrator has been recorded against the title to the parcel.
ii. The owner of the Remainder parcel shall either provide evidence
that existing trailers on the Remainder parcel have been removed, or shall provide evidence for
the review and approval of the Zoning Administrator that the trailer use is permitted by the
County Code.
d. No further subdivision of the Property and no lot line adjustments are
allowed.
e. No indigenous trees shall be removed beyond those necessary (1) to
implement the Project, (2) for fire safety or maintenance, or (3) for wastewater or water supply
for the Project.
f. Agricultural uses allowed under the A-2 General Agricultural District
zoning for the Property shall be allowed to occur on the Property provided that no additional
indigenous trees are removed and the uses do not conflict with this Section 2. A one acre
vineyard on former grassland on each parcel is specifically allowed provided no indigenous trees
are removed.
g. No building permits shall be allowed on the Property outside the
designated building envelopes except as provided in Section 2.a. Grading is permissible on the
Property in accordance with the requirements of the County Code.
3. Rights and Responsibilities of Grantee.
a. County, in its sole discretion, has the right but is not required to prevent
any activity or use that is in violation of this Agreement. County may require the restoration of
areas or features of the Property that are damaged by a violation of the Agreement, pursuant to
the remedies set forth in Section 6, below. EBRPD only has the ability to bring a court action to
enforce this Agreement as permitted by Section 6.b, below.
b. Nothing contained in this Agreement shall be construed to entitle Grantee
to bring any action against Grantor for any injury to or change on the Property resulting from the
following: (i) any natural cause beyond Grantor’s control, including, without limitation, fire,
flood, storm, and earth movement, or any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury resulting from such causes; or (ii) acts
by Grantee or its agents or employees.
4. Restrictions on Grantee and the Public.
a. Notwithstanding anything to the contrary herein, Grantee shall have no
right to enter upon the Property without obtaining prior written consent of Grantor.
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b. No right of general public access is created by this Agreement. The grant
of this Agreement and its acceptance by Grantee does not authorize, and shall not be construed to
authorize, the public or any member thereof to enter upon or use all or any portion of the
Property or as granting to the public or any member thereof any rights in or to the Property or the
right to go upon or use the Property in any manner.
5. Reservation of Rights of Grantor.
a. Subject to the restrictions set forth in Section 2 above, nothing in this
Agreement shall prevent, limit, or interfere with the maintenance, occupancy of, or means of
egress onto or from the Property or the use and enjoyment of the Property by Grantor or their
invitees.
b. Grantor may consult with the East Contra Costa Fire Protection District to
develop an appropriate fuel management plan for the Property, and may utilize grazing or other
means to mitigate fire danger. Consistent with Section 2.e above, trees on the Property may be
trimmed or removed as part of the fuel management plan or to mitigate fire danger.
c. Grantor reserves the right to repair landslides as needed and to undertake
such actions as necessary to protect the Property and other surrounding properties from
landslides and other movement of earth.
d. Grantor reserves to itself, and to its personal representatives, heirs,
successors, and assigns, all rights accruing from its ownership of the Property, including the right
to engage in or to permit or invite others to engage in all uses of the Property that are not
inconsistent with this Agreement.
6. Enforcement.
a. County in its sole discretion shall determine if a breach of this Agreement
has occurred by Grantor and if a breach has occurred, whether to pursue enforcement. If EBRPD
alleges a breach, it must comply with Section 6.b. below. In the event County believes an
alleged breach occurs or Grantor believes an alleged breach occurs by either Grantee, the non-
breaching party shall give the breaching party written notice to correct the violation no less than
thirty (30) days after the alleged violation was known to occur and at least thirty (30) days prior
to taking any other action.
b. If EBRPD reasonably believes a breach has occurred under this
Agreement, EBRPD shall notify the Contra Costa County Department of Conservation and
Development (the “Department”) within thirty (30) days of the known violation. The
Department will then determine whether a breach has occurred and whether to pursue
enforcement. County is solely responsible for enforcing the terms of this Agreement.
Concurrence from the County Board of Supervisors is required before EBRPD can initiate court
action relating to enforcement of this Agreement.
c. The breaching party shall be solely responsible for reasonable costs
resulting from such breach and their subsequent remediation or restoration. Further, the
breaching party shall be solely responsible for all reasonable costs incurred by the non-breaching
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party in pursuing an investigation, enforcement or legal action regarding the alleged violation.
Reasonable costs can only be recovered if it is determined that a breach occurred and such
recovered costs shall apply to only those aspects of the Agreement the breaching party was found
to have violated.
7. Compliance with Laws. Nothing in this Agreement shall be construed to exempt
Grantor from complying with all applicable laws, ordinances, regulations, and permit
requirements.
8. Amendment. This Agreement may be amended or modified only by an
instrument in writing signed by each of the parties.
9. Perpetuity. This Agreement shall run with the Property. The term “Grantor”
shall include their respective successors.
10. Notices. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and sent by certified
mail, postage prepaid, to the following addresses, or to such other address as either party from
time to time shall designate by written notice to the other:
To Grantor: Roger and Kandell Habig
3000 Bragdon Way
Clayton, CA 94517
To County: Contra Costa County
651 Pine Street
Martinez, CA 94553
Attn: Deputy Director Community
Development Division, Department of
Conservation & Development
To EBRPD: East Bay Regional Park District
2950 Peralta Oaks Court
Oakland, CA 94605-0381
Attn: Land Division
13. Recordation. The County shall record this Agreement concurrently with the
recordation of the Parcel Map in the official records of the County.
14. General Provisions.
a. Controlling Law. The interpretation and performance of this Agreement
shall be governed by the laws of the State of California.
b. No Third Party Beneficiaries. This Agreement is intended solely for the
benefit of the parties hereto and shall not be construed to create any rights in any person or entity
other than the parties.
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c. Severability. If any provision of this Agreement is found to be invalid,
the remaining provisions of this Agreement shall not be affected thereby.
d. Entire Agreement. This Agreement sets forth the entire agreement of the
parties with respect to the Agreement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Agreement, all of which are merged herein.
e. No Forfeiture. Nothing contained herein will result in a forfeiture or
reversion of Grantor’s title in any respect.
f. Termination of Rights and Obligations. Grantor’s obligations
hereunder run with the land. Grantor’s rights and obligations under this Agreement terminate
upon transfer of Grantor’s interest in the portion(s) of Property affected.
g. Counterparts. The parties may execute this Agreement in counterparts,
which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an
original as against any party who has signed it.
IN WITNESS WHEREOF, Grantor has duly executed and County has approved this
Agreement as of _______________, 2009.
ROGER HABIG
_______________________
KANDELL HABIG
______________________
COUNTY OF CONTRA COSTA
By: ______________________________
Its: ______________________________
In witness WHEREOF, East Bay Regional Park District has accepted this Agreement.
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EAST BAY REGIONAL PARK DISTRICT
By: ______________________________
Its: ______________________________
D:\Personal\Habig\GDDR w 7-14-c staff edits.DOC
RD\
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STATE OF CALIFORNIA )
)ss
COUNTY OF CONTRA COSTA )
On , 2009, before me, ,
a notary public in and for said state, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
)ss
COUNTY OF CONTRA COSTA )
On , 2009, before me, ,
a notary public in and for said state, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
9
STATE OF CALIFORNIA )
)ss
COUNTY OF CONTRA COSTA )
On , 2009, before me, ,
a notary public in and for said state, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
)ss
COUNTY OF CONTRA COSTA )
On , 2009, before me, ,
a notary public in and for said state, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
MMB\977854
EXHIBIT A
Legal Description
MMB\977854
EXHIBIT B
Building Envelopes for Parcels B, C and the Remainder