HomeMy WebLinkAboutMINUTES - 03281995 - H.8 • �� Contra
TO: BOARD OF SUPERVISORS �;' ' Costa
°; County
FROM: HARVEY E . BRAGDON ; `
DIRECTOR OF COMMUNITY DEVELOPMENT
�� `�°
DATE: March 20, 1995
SUBJECT: Appeal by Richard Kerr of the County Planning Commission' s Decision of
Conditions of Approval .#4 and #10 of Minor Subdivision 6-94, Richard
and Paula Kerr (Applicants and Owners) , in the Concord area.
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
1 . Deny in part the appeal of Richard Kerr by retaining Condition
of Approval #4 as approved by the County Planning Commission
and approve in part the appeal of Richard Kerr by amending the
wording of Condition of Approval #10 .
2 . Accept the environmental review documentation as complete and
adequate .
3 . Approve the tentative map for Minor Subdivision 6-94 as
recommended by the County Planning Commission on March 7,
1995, subject to the revised Conditions of Approval shown in
Attachment A.
FISCAL IMPACT
None.
BACKGROUND/REASONS FOR RECOMMENDATIONS
Public Hearing Review
The applicant is proposing to subdivide 1 . 839 acres into four
parcels . Subject property is located at the west corner of Laurel
Drive and Debra Lane, in the Concord area.
On December 5, 1994, the Zoning Administrator after taking
testimony approved the tentative map for minor subdivision MS 6-94
as per staff recommendation, with added and revised conditions .
The applicant appealed that decision asking for removal of or
alteration to Conditions #4, 9 .A. 1, 9 .G. 2 , 9 .H. 3 , 9 .H.4 , 10 and
Advisory Note H.
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON P APPROVED AS RECOMMENDED X OTHER.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SI�OWN.
Contact: Delmar Tompkins 646-2031 \•
Orig: Community Development Department ATTESTED 9:7�
cc: Richard and Paula Kerr PHIL BATCHEL R, CLERK OF
Public Works - Mitch Avalon THE BOARD OF SUPERVISORS
AND COUNTY ADMINISTRATOR
BY DEPUTY
On March 7, 1995, this application was presented to the County Planning
Commission as Board of Appeals with staff recommendations for approval
of the minor subdivision with revisions to Condition of Approval #9 .
The County Planning Commission after taking testimony voted to approve
this application as per staff recommendation, with changes to Condition
of Approval #9 .
Appeal by Applicant
The applicant appeals Condition of Approval #4, which requires the
holding of an election to form a P-6 Police Service District for the
parcels created by this subdivision approval, and seeks revision to
Condition of Approval #10 , which is meant to indemnify the County from
any third party claim, action, or proceeding taken to attack the
approval of the subdivision. The applicant' s proposal for revision to
the Indemnification condition would exempt the applicant from providing
indemnification to the County when the subdivider is a plaintiff in the
action.
Discussion
COA #4 - In 1987 the Board of Supervisors established a policy
requiring creation of Police Service District zones in new major
subdivisions in the East County. On August 11, 1992 the Board altered
the policy on the creation of Police Service District zones to include
all major and minor subdivisions within the unincorporated area of the
County, with the exception of the Kensington which has its own Police
Service District . All major and minor subdivisions since that time
have been conditioned to participate in the provision of funding to
maintain and augment police services by voting to approve a special tax
for the parcels created by the subdivision action. Staff is not aware
of any special circumstances in this instance which would justify an
exception to this requirement .
COA #10 - The Indemnification Condition is included pursuant to
Government Code Section 66474 . 9 (b) (1) of The Subdivision Map Act
where "A local agency may require, as a condition for a tentative,
parcel, or final map application or approval, that the subdivider
defend, indemnify, and hold harmless the local agency or its agents,
officers, and employees from any claim, action, or proceeding against
the local agency or its agents, officers, or employees to attack, set
aside, void, or annul, an approval of the local agency, advisory
agency, appeal board, or legislative body concerning a subdivision,
which action is brought within the time period provided for in Section
66499 . 37 . "
The intent of the inclusion of Condition of Approval #10 is not to
prevent the applicant from exercising any rights to file a petition for
writ or mandate against the County regarding validity of any of the
conditions of approval for the map. Such a requirement would
apparently be prevented by Government Code Section 66474 . 9 (a) of the
Subdivision Map Act which states that a local agency may not condition
map approval on a requirement that the subdivider indemnify it against
a claim based on the agency' s action or inaction in reviewing,
approving, or denying the map.
Staff has added the following wording to Condition of Approval #10 :
"Nothing in this condition is intended to prevent the subdivider from
challenging the validity of any of the conditions of approval for the
map nor would he be liable for the County' s legal expenses in defending
such Conditions of Approval provided such action is filed in a timely
manner. "
ADDENDUM TO ITEM H.8
MARCH 28, 1995
The Chair convened the hearing on the appeal of Richard Kerr of the County Planning
Commission's decision of Conditions of Approval No.4 and No. 10 of Minor Subdivision 6-94,Concord
area. Dennis Barry of the Community Development Department recommended that the appeal be granted
in part by amending Condition of Approval No. 10 by adding the following wording: "Nothing in this
condition is intended to prevent the subdivider from challenging the validity of any of the conditions of
approval for the map nor would he be liable for the County's legal expenses in defending such conditions
of approval providing such action is filed in a timely manner." Mr.Barry further recommended that the
appeal be denied in part by retaining Condition of Approval No.4 as approved by the County Planning
Commission.
The hearing was opened and Richard Kerr,the appellant,4924 Laurel Drive,Concord,advised
that he was agreeable to the additional wording to Condition No. 10,but expressed his belief that he
should be excluded from participating in the provision of funding to maintain and augment police services
by voting to approve a special tax for the parcels created by his subdivision. He advised that he found the
$800 he was required to pay excessive for the conduct of the election since he was the owner of all parcels
within MS 6-94.
Supervisor Torlakson noted that the Finance Committee will be reviewing the fee issue because
he had some questions regarding the$800 charge to hold an election.
Supervisor DeSaulnier moved that the Board grant the appeal in part by amending Condition of
Approval No.4 by adding the wording proposed by Mr.Barry. Since the Finance Committee will be
reviewing the$800 cost for the election for police service, Supervisor DeSaulnier further moved that the
Board deny the appeal in part by retaining Condition of Approval No. 10(as approved by the County
Planning Commission) with the proviso that should the Finance Committee provide an exemption for
small minor subdivisions,that it would apply retroactively to Mr.Kerr's as well as to future ones. The
motion was seconded by Supervisor Rogers.
THEREFORE,IT IS BY THE BOARD ORDERED that the aforesaid motion is APPROVED.
IT IS FURTHER ORDERED that the environmental review documentation is ACCEPTED as
complete and adequate.
IT IS FURTHER ORDERED that the tentative map for Minor Subdivision 6-94 is APPROVED
as recommended by the County Planning Commission On March 7, 1995,subject to the revised
Conditions shown on Attachment A and noted in the above motion.
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Attachment "A"
CONDITONS OF APPROVAL FOR MINOR SUBDIVISION 6-94
1. The request to subdivide the 1.84 parcel is approved for 4 parcels and a remainder
subject to the Tentative Map dated received by the Community Development
Department on May 25, 1994. The following conditions of approval require
compliance prior to the filing of the Parcel Map unless otherwise indicated.
Sewer and Water Service
2. The applicant shall show proof that water and sewage service is available prior to
recording the Parcel Map.
3. Comply with the requirements of the Environmental Health Division of the Health
Services Department as follows:
A. Sewage Disposal: All wastewater shall be disposed of into a sewer system
constructed and operated under permit form the Regional Water Quality Control
Board.
B. Water Supply: Domestic water supply shall be from an existing public water
system. Water supply shall be from the Contra Costa water system.
C. Other: Any abandoned on-site wells and septic systems shall be destroyed in
accordance with Health Services Department, Environmental Health Division
regulations. Environmental Health Division permit and inspections for this work
shall be obtained.
Due to conditions characteristic to the area, ability to meet the sewage
requirement may be problematic. Therefore, evidence should be provided that
each proposed lot would be able to support an appropriate sewage disposal
system.
Police Service District
4. The owner of the property shall participate in the provision of funding to maintain and
augment police services by voting to approve a special tax for the parcels created by
this subdivision action. The tax shall be the per parcel annual amount (with
appropriate future CPI adjustment) then established at the time of voting by the Board
of Supervisors. The election to provide for the tax shall be completed prior to the filing
of the Parcel Map. The property owner shall be responsible for paying the cost of
holding the election, payable at the time that the election is requested by the owner.
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Street Addressing
5. At least 30 days prior to filing the Parcel Map, plans shall be submitted for review by
the Community Development Department, Graphics Section, to obtain addresses and
for street name approval (public and private). Alternate street names should be
submitted in the event of duplication and to avoid similarity with existing street
names. The Parcel Map cannot be certified by the Community Development
Department without the approved street names and the assignment of street
addresses.
Building Plan Review
6. Development plans for each building site shall be reviewed and approved by the Zoning
Administrator at least 30 days prior to issuance of building permits. All setbacks and
yard minimum sizes shall be measured from the edge of the private road easement.
All structures shall have non-flammable roofs and fire retardant or non-flammable
siding. All out-buildings shall have adequate spacing from residences.
Construction Activities
7. Comply with the following construction, noise, dust and litter control requirements:
A. Noise generating construction activities, including such things as power
generators, shall be limited to the hours of 7:30 A.M. to 5:00 P.M., Monday
through Friday, and shall be prohibited on State and Federal holidays. The
restrictions on allowed working days may be modified on prior written approval
by the Zoning Administrator.
B. The project sponsor shall require their contractors and subcontractors to fit all
internal combustion engines with mufflers which are in good condition and shall
locate stationary noise-generating equipment such as air compressors and
concrete pumpers as far away from existing residences as possible.
C. At least one week prior to commencement of grading, the applicant shall post
the site and mail to the owners of property within 300 feet of the exterior
boundary of the project site notice that construction work will commence. The
notice shall include a list of contact persons with name, title, phone number
and area of responsibility. The person responsible for maintaining the list shall
be included. The list shall be kept current at all times and shall consist of
persons with authority to indicate and implement corrective action in their area
of responsibility. The names of the individual responsible for noise and litter
control shall be expressly identified in the notice. The notice shall be reissued
with each phase of major grading activity.
A copy of the notice shall be concurrently transmitted to the community
Development Department. The notice shall be accompanied by a list of the
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names and addresses of the property owners noticed, and a map identifying the
area noticed.
D. A dust and litter control program shall be submitted for the review and approval
of the Zoning Administrator. Any violation of the approved program or
applicable ordinances shall require an immediate work stoppage. Construction
work shall not be allowed to resume until, if necessary, an appropriate
construction bond has been posted.
E. The applicant shall make a good-faith effort to avoid interference with existing
neighborhood traffic flows. Prior to issuance of building permits, the proposed
roads serving this development shall be constructed to provide access to each
lot. This shall include provision for an on-site area in which to park earth
moving equipment.
Archaeological
8. Should archaeological materials be uncovered during grading,trenching or other on-site
excavation(s), earthwork within 30 yards of these materials shall be stopped until a
professional archaeologist who is certified by the Society for California Archaeology
(SCA) and/or the Society of Professional Archaeology (SOPA) has had an opportunity
to evaluate the significance of the find and suggest appropriate mitigation(s), if deemed
necessary.
Road Improvement, Traffic, Utility
9. Comply with drainage, road improvement, traffic and utility requirements as follows:
A. General Requirements:
1> In accordance with Section 92-2.006 of the Ordinance Code, this
subdivision shall conform to all applicable provisions of the Subdivision
Ordinance (Title 9), except Division 914-10, 914-12, and 926.
Additional exceptions therefrom must be specifically listed in this
conditional approval statement. The drainage, road and utility improve-
ments outlined below shall require the review and approval of the Public
Works Department and are based on the tentative map dated May 1994.
2) Improvement plans prepared by a registered civil engineer shall be
submitted to the Public Works Department , Engineering Services
Division, along with review and inspection fees, and security for all
improvements required by the Ordinance Code for the conditions of
approval of this subdivision. These plans shall include any necessary
traffic signage and striping plans for review by the Transportation
Engineering Division.
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B. Public Roadway Improvements (Frontage).
The Ordinance Code requires construction of frontage improvements. As this
area is relatively undeveloped, frontage improvements are not warranted at this
time. An exception is granted providing a DIA is executed requiring the
owner(s) of the property involved in the subdivision to:
1) Applicant shall construct curb, 4-foot 6-inch sidewalk (width measured
from curb face), necessary longitudinal and transverse drainage, street
lighting, border landscaping and irrigation, pavement widening along the
frontage of Laurel Drive.
2) Underground the existing utility distribution facilities along the frontage
of Laurel Drive.
3) At the time the deferred improvement agreement is called up, submit
improvement plans to the Public Works Department, Engineering
Services Division, for review pay the inspection fee, plan review fee and
applicable lighting fees.
C. Access to Adjoining Property:
Proof of Access/Acquisition
1) Applicant shall furnish proof to the Public Works Department, Engi-
neering Services Division, of the acquisition of all necessary rights of
way, rights of entry, permits and/or easements for the construction of
off-site, temporary or permanent, road or drainage improvements.
D. Private Roads:
1) Applicant shall construct a turnaround at the end of the proposed private
road.
2) Applicant shall construct to County private road standards a 20-foot
paved private roadway with 2-foot compacted shoulders within a 28-
foot easement, to serve Parcels A, B, and D in this proposed subdivi-
sion.
3) Applicant shall develop and enter into a maintenance agreement that will
insure that the proposed private road will be maintained, and that each
property that uses the proposed private road will share in its mainte-
nance.
E. Road Dedication:
Applicant shall convey to the County, by Offer of Dedication, the right of way
necessary for the planned future width of 60 feet along the frontage of Laurel
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Drive.
F. Utilities/Undergrounding:
All new utility distribution services shall be installed underground. Overhead
utilities on the subject parcel which are to be relocated are not to be considered
new facilities.
G. Drainage Improvements:
Collect and Convey:
1) Division 914 of the Ordinance Code requires that all storm waters
entering or originating within the subject property shall be conveyed,
without diversion and within an adequate storm drainage facility, to a
natural watercourse having definable bed and banks (Mount Diablo
Creek), or to an existing adequate public storm drainage facility which
conveys the storm waters to a natural watercourse.
2) Dedicate a 14-foot drainage easement along the southerly property line
of Parcel D and construct at least 16 linear feet of Line A of the
Drainage Area 33C plan (Drawing No. D-12469) and the appurtenant
outfall structure in Mount Diablo Creek. The ditch downstream of the
existing concrete lined ditch along the southerly property line shall be
rerouted to drain directly to Mount Diablo Creek along the Line A
easement. Any necessary relocation of utility facilities shall be the
responsibility of the owner or his agent.
in accordance with Section 914-14.004, "Closed Conduits-Minimum
Widths of Easements" of the County Ordinance Code,the applicant shall
dedicate an additional 25-foot construction easement along those on-site
portions of Line A which have yet to be installed.
3) Certain improvements required by the Conditions of Approval for this
development or the County Subdivision Ordinance Code may be eligible
for credit or reimbursement against the drainage area fee. The
developer should contact the Public works Department to personally
determine the extent of any credit or reimbursement for which he might
be eligible. Any credit or reimbursements shall be determined prior to
filing the final map or as approved by the Flood Control District.
H. Miscellaneous Drainage Requirements:
1) Storm drainage originating on the property and conveyed in a concen-
trated manner shall be prevented from draining across the sidewalk(s)
and driveway(s).
2) The applicant shall install within a dedicated drainage easement any
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portion of the drainage system which conveys run-off from public
streets.
3) Studies of Mount Diablo Creek have shown that creek improvements are
needed to convey the design run-off flows to prevent flooding. New
development, such as the subject application, will adversely impact
Mount Diablo Creek. To reduce the impact of additional storm water
run-off from this development on Mount Diablo Creek, one cubic yard
of channel excavation material will be removed from the inadequate
portion of Mount Diablo Creek for each 50 square feet of new imper-
vious surface area created by the development. All excavated material
shall be disposed of by the developer at his cost.
Upon written request, the applicant may make a cash payment in lieu of
actual excavation and removal of material from the creek. The cash
payment will be calculated at the rate of $0.25 per square foot of new
impervious surface area created by the development. The added
impervious surface area created by the development will be based on
the Flood Control District's standard impervious surface area ordinance.
The Flood Control District will use these funds to work on the creek in
areas of inadequate capacity. Some on-site creek work, specifically the
removal of the concrete structure within the old Railroad right of way or
additional on-site bank stabilization improvements, may be eligible for
credit toward the mitigation fee. The calculation of eligible credit will
be based on the improvement plans and cost estimate and will be
i determined by the Flood Control District at the time of the filing of the
Parcel Map.
4) A drainage easement encompassing the proposed 28-foot private access
easement for Parcels A, B, and D shall be conveyed to the County by
Offer of Dedication. Improvements in the easement shall be consistent
with the improvement plans for the private access road from Laurel
Drive to the southerly three lots of MS 6-94.
Access control gates at Laurel Drive and Concord Boulevard shall be
consistent in appearance and quality with access provisions for
restricted upscale residential developments. Access control shall be
subject to the review and approval of the Public Works Department.
I. Creek Structure Setbacks:
Applicant shall relinquish "development rights" over that portion of the site that is
within the structure setback area of Mt. Diablo Creek. The structure setback shall be
determined by using the criteria outlined in Chapter 914-14, "Rights of Way and
Setbacks", of the Subdivision Ordinance. "Development rights" shall be conveyed to
the County by grant deed.
Those sections of the private access road which fall within the approximate structure
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setback area of the creek shall also be subject to the above condition. If sections of
the roadway fall within the structure setback area as defined by the Ordinance Code,
then the applicant shall submit a soils and geotechnical report verifying the stability of
the creek bank or identifying necessary creek bank stabilization methods in the vicinity
of the access road.
Indemnification
10. Pursuant to Government Code Section 66474.9,the applicant(including the subdivider
or any agent thereof) shall defend, indemnify, and hold harmless the Contra Costa
County Planning Agency and its agents, officers, and employees from any claim,
action, or proceeding against the Agency (the County) or its agents, officers, or
employees to attack, set aside, void, or annul, the Agency's approval concerning this
subdivision map application, which action is brought within the time period provided
for in Section 66499.37. The County will promptly notify the subdivider of any such
:........................................
claim, action, or proceeding and cooperate fully in the defense. atttiigj3
eflniti:ans:�ntnded :prtevent the sttbt3ruj�e from cfiatien1ng the vatEtity:ofan:Yf
cncl�t� n$ f asraal for tfla map n6r wGUld fze #�e Irelte fir tfaeunty's #eQ.
a
e epenses r� tefendrng such and tao s. f Appf.vaT prow'dedsuch actb rs t.ed to a
ri�et���r�ner
ADVISORY NOTES
PLEASE NOTE ADVISORY NOTES ARE ATTACHED TO THE CONDITIONS OF APPROVAL BUT
ARE NOT A PART OF THE CONDITIONS OF APPROVAL, ADVISORY NOTES ARE PROVIDED
FOR THE PURPOSE OF INFORMING THE APPLICANT OF ADDITIONAL ORDINANCE
REQUIREMENTS THAT MUST BE MET IN ORDER TO PROCEED WITH DEVELOPMENT.
A. Comply with the requirements of the Contra Costa County Fire Protection District (see
attached).
B. Comply with the requirements of the Building Inspection Department. Building permits
are required prior to the construction of most structures.
C. This project may be subject to the requirements of the Department of Fish & Game.
The applicant should notify the Department of.Fish & Game, P.O. Box 47, Yountville,
California 94599, of any proposed construction within the development that may
affect and fish and wildlife resources, per the Fish and Game Code.
D. This project may also be subject to the requirements of the United States Army Corps
of Engineers. The applicant should notify the appropriate district of the Corps of
Engineers to determine if a permit is required.
E. The applicant will be required to comply with the requirements of the
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Bridge/Thoroughfare Fee Ordinance for the Central County Area of Benefit as adopted
by the Board of Supervisors.
F. The applicant shall be required to comply with the drainage fee requirements for
Drainage Area 33C as adopted by the Board of Supervisors.
G. The applicant shall be required to comply with all rules, regulations, and procedures of
the National Pollutant Discharge Elimination Systems (NPDES) for municipal,
construction and industrial activities as promulgated by the California State Water
Resources Control Board, or any of its Regional Water Quality Control Boards (San
Francisco Bay- Region II or Central Valley -Region V).
H. Vested Rights and Fees: This project is subject to the development fees and
regulations in effect under County Ordinance as of June 24, 1994, the date the
vesting tentative map application was accepted as complete by the Community
Development Department. These fees are in addition to any other development fees
which may be specified in the conditions of approval.
The fees include but are not limited to the following:
Park Dedication $2000 per residence.
Child Care $ 400 per residence.
An estimate of the fee charges for each approved lot may be obtained by contact the
Building Inspection Department at 646-4992.
I. Pursuant to Section 66424.6(d) of the Subdivision Map Act, a certificate of
compliance or a conditional certificate of compliance may be required by the City of
Concord prior to the sale of the designated remainder.
J. The applicant is advised that the tax for the police services district is currently set by
the Board of Supervisors at $200 per parcel annually (with appropriate future
Consumer Price Index [CPI] adjustments). The annual fee is subject to modification by
the Board of Supervisors in the future. The current fee for holding the election is $800
and is also subject to modification in the future. The applicable tax and fee amounts
will be those established by the Board at the time of voting. The applicant is advised
that the election process takes from 3 to 4 months and must be completed prior to
recording the Final or Parcel Map.
DLT/RHD/aa
MSXXIV/6-94C.DLT
8/30/94
9/15/94