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CITY OF PETALUMA, CALIFORNIA
AGENDA BILL May 15, 2
Agenda Title: Consideration of an Appeal by Rick Costa and
Meeting Date: May 15, 2006
Robert Ramirez of the City's Issuance of a Conditional Certificate
of Compliance for Property Located at 800 Cindy Lane.
Meeting Time: ❑ 3:00 PM
(Moore/Robbe/Thomsen)
® 7:00 PM
Category (check one): ❑ Consent Calendar ® Public Hearing ❑ New Business
❑ Unfinished Business ❑ Presentation
Department:
Director:
Contact Person:
Phone Number:
Community
Mike Moo
Tiffany Robbe and
778-4301
Development
Leslie Thomsen
Cost of Proposal: N/A
Account Number: N/A
Amount Budgeted: N/A
Name of Fund: N/A
Attachments to Agenda Packet Item:
1. Draft Resolution Denying the Appeal and Upholding the Conditional Certificate of Compliance
2. Conditional Certificate of Compliance recorded on March 14, 2006
3. Appeal letter from Richard Hicks of Bembeim & Hicks representing the 800 Cindy Lane property
owners dated March 27`h and cover sheet accompanying the application forms and filing fee dated
March 30, 2006
4. Neighborhood Correspondence
5. Site Map
Summary Statement:
Property owners Rick Costa and Robert Ramirez have appealed the City's issuance and recordation of a
Conditional Certificate of Compliance regarding the vacant 5,011 square foot property located at 800
Cindy Lane.
The recorded Conditional Certificate of Compliance states that the subject property "should be deemed
lawfully created under the Subdivision Map Act for purposes of sale, lease, or financing" and requires that,
prior to any development of the site, zoning standards applicable at the time appellants purchased the
property in 1979 must be satisfied. These conditions require compliance with the minimum lot area
requirement of 6,500, compliance with the minimum lot depth requirement of 100 feet, and compliance
with the minimum lot with requirement of 65 feet.
The appeal contends that the property owners are entitled to the issuance of an unconditional Certificate of
Compliance and that compliance with the above bullet items should not be required. Secondly, the appeal
contends that "even assuming" a Conditional Certificate of Compliance could be issued by the City, the
conditions contained in the Certificate are improper.
Recommended City Council Action/Suggested Motion:
Staff recommends that the City Council deny the appeal and uphold the Conditional Certificate of
Compliance recorded on March 14, 2006.
Reviewed by Admin. Svcs. Dir:
Reviewed b i , Attornev:
Annroved Faity Manager:
Date:
D�te
ate:
S 9�0 -
Today's Date:
Revision # and Date Revised:
File Co...
9
May 2, 2006
b.
TO.
CITY OF PETALUMA, CALIFORNIA
MAY 15, 2006
AGENDA REPORT
FOR APPEAL BY RICK COSTA/ROBERT RAMIREZ
OF CITY'S ISSUANCE OF CONDITIONAL CERTIFICATE
OF COMPLIANCE FOR PROPERTY LOCATED AT 800 CINDY LANE
1. EXECUTIVE SUMMARY:
Appellants purchased at tax sale in 1979 a nonconforming parcel some 5,011 square feet in size
that was originally created when the Cherry Valley Subdivision was approved in 1971.
Conditions of map approval required the parcel to be deeded to an adjacent landowner, but the
deed was never recorded. Taxes were subsequently assessed against the parcel but not paid,
leading to the tax sale to appellants. The parcel did not meet zoning standards in 1971, in 1979,
or at the present time.
Appellant applied for a certificate of compliance and the City recorded a conditional certificate
on March 14, 2006. The conditions require compliance with zoning standards in effect as of the
date of appellants' purchase in 1979 regarding minimum lot size, depth and width prior to
development. Appellants contend they are entitled to an unconditional certificate of compliance,
and presumably, to the right to develop the parcel despite its failure to meet zoning standards.
2. BACKGROUND:
The parcel was originally part of a larger parcel subdivided in 1971 as the Cherry Valley
Subdivision. A triangular parcel of 5,011 square feet, it was substandard in size for the
applicable zoning district at the time the Cherry Valley Subdivision map was processed. It was
not intended to be a developable separate parcel, and a condition of map approval required the
property to be deeded to an adjacent property owner prior to final map recordation. The deed
was executed, but never recorded. Nevertheless, the final subdivision map was approved, and it
recorded on November 3, 1971.
At some point thereafter, the Sonoma County Tax Assessor assigned the parcel a parcel number
and began assessing taxes against the subdivider which went unpaid. The parcel was eventually
tax -deeded to the State by operation of law, and sold to applicants at the ensuing tax sale by the
County of Sonoma on September 19, 1979.
Appellants' title from the tax sale prevails over the unrecorded earlier deed. The issues on appeal
are whether appellants are entitled to a City certificate of compliance stating that the parcel is a
legally created parcel for purposes of the Subdivision Map Act, and if so, whether the certificate
of compliance may be conditioned, and in what manner.
Appellants contend, based on what staff believes is an incorrect interpretation of the law, that the
City must issue an unconditional certificate of compliance. Staff believes that the certificate may
be conditioned by the zoning standards applied to the property, namely those in effect at the time
of appellants' purchase in 1979.
C2
Appellants note a California Attorney General's opinion which advises that tax sale properties
can be divided and sold without violating the provisions of the Subdivision Map Act. 64 Ops.
A.G. 814 (1981); Notice of Appeal, 3/27/06, p. 3. This is correct, but more important to this
appeal, the opinion also states that a tax sale does not exempt the buyer from complying with
applicable zoning standards. As the Attorney General said in his 1981 opinion, at footnote 3,
"The fact that the tax collector need not comply with the Map Act does not insulate a buyer
from complying with zoning requirements, requirements for a building permit, or other
lawful restrictions on the use of the land." Emphasis added.
Government Code section 66494.35(f)(1)(F) specifically states that the certificate may include
"any conditions to be fulfilled and implemented prior to subsequent issuance of a permit or other
grant of approval for development of the property . . . .. The conditional certificate of
compliance recorded by the City on March 14, 2006, states that prior to the development of the
property, the parcel shall comply with zoning standards applicable at the time of appellants'
purchase, including minimum lot area of 6,500 square feet, minimum lot depth of 100 feet, and
minimum lot width of 65 feet.
In this case, the property was assessed as a separate parcel by mistake. Either because of the tax
sale, or if the parcel is considered a de facto remainder parcel because its deed to the adjacent
landowner was never recorded, it may be sold without further compliance with the Subdivision
Map Act. Gov't. Code. Sec. 66424.6; 64 Ops. A.G. 814 (1981).
However, there is no requirement in law that the City issue an unconditional certificate of
compliance. Appellants cite to two California Court of Appeal cases to support its position that
an unconditional certificate is required. Notice of Appeal letter from Richard Hicks, counsel for
Appellants, 3/27/06, p. 3. Neither of the court cases cited required the public entity to issue an
unconditional certificate. In Hunt v. County of Shasta (1990) 225 Cal.App. 432, the appellate
court reversed a lower court ruling that had required the County of Shasta to issue the requested
certificates of compliance and ruled for the County on statute of limitations grounds. No
certificates were issued. Id. at 446. In Findleton v. Board of Supervisors of El Dorado County
(1993) the Court of Appeal held that applicants were not entitled to issuance of an unconditional
certificate. Applicant had argued that he was entitled to an unconditional certificate because of
alleged violations of the Permit Streamlining Act. The court found that the Permit Streamlining
Act did not apply and that applicant was not entitled to an unconditional certificate. Id. at 714.
The court did not consider the question of whether the County's conditions were properly
imposed. Ibid.
The enacting provisions of the City's Conditional Certificate of Compliance state that in
paragraph 1, "That the real property and/or the division thereof described herein does comply, as
conditioned, with the applicable provisions of the Subdivision Map Act and of local ordinances
enacted pursuant thereto;" [Emphasis added]. With the conditions requiring conformance to the
zoning standards, the parcel would be compliant. (Even though the findings section of the
certificate omits the words "as conditioned" in a similar phrase, the enacting provisions control.)
Appellants also state that the City is imposing conditions on the certificate of compliance that
cannot be met because of the physical configuration of the property. If that is true, it arises from
the condition of the property and not from any special hardship imposed on applicants by the
City. The physical configuration of the property is why the parcel was not intended to be a
developable parcel at the time Cherry Valley was subdivided.
3
Appellants purchased at a tax sale without any guarantee or representation that the property was
developable. Any argument appellants make regarding a potential takings claim, or their
reasonable expectations for development of the property, must be limited by the caveat eniptor
nature of their purchase at tax sale.
If the Council wishes to consider a modification of standards for this parcel on this appeal, there
is no directly applicable provision of the Petaluma Municipal Code (PMC). Some guidance may
be gained from the appeal procedure set out in Chapter 20, "Subdivisions". Section 20.40.075
provides that, in the course of a tentative map or parcel map process, a requested modification
which "relates only to variation in the minimum lot area of a lot or lots, or the minimum
dimensions of such a lot' may be approved by the reviewing authority (in this case the City
Council) "as part of its approval of the tentative or parcel map'. In all other cases which involve
modifications during the map process, the planning commission is required to report findings on
requested modifications to the City Council. PMC 20.40.080. The requested "modification"
must still be supported by findings that:
o There are special circumstances or conditions affecting [the] property;
o Modification is necessary for the preservation and enjoyment of a substantial
property right of the petitioner; and
o Granting of the modification will not be detrimental to the public welfare or safety,
or injurious to other property in the territory in which said property is situated.
(PMC sections 20.40.020-.040.)
3. ALTERNATIVES:
In addition to its option to deny the appeal, the appeal section of the PMC under which the
Council is proceeding states that "Upon hearing of the appeal, the city council may over -rule or
modify the decision, determination or requirement appealed from and enter any such order or
orders as are in harmony with the spirit and purpose of this title." [Chapter 20, "Subdivisions".]
4. FINANCIAL IMPACTS:
Undetermined.
5. CONCLUSION:
Having provided a process for hearing this appeal, the Council should make a decision to uphold
or withdraw the Conditional Certificate of Compliance. If it is withdrawn, the City would then
be required by law to issue an unconditioned Certificate of Compliance.
C. OUTCOMES OR PERFORMANCE MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR
COMPLETION:
Decision of the Council will identify completion of the appeal.
7. RECOMMENDATION:
Uphold the Conditional Certificate of Compliance and the conditions issued by staff.
DRAFT RESOLUTION OF THE CITY COUNCIL OF PETALUMA
DENYING THE APPEAL BY RICK COSTA AND ROBERT RAMIREZ OF THE
ISSUANCE AND RECODATION BY THE CITY OF
A CONDITIONAL CERTIFICATE OF COMPLIANCE FOR
PROPERTY AT 800 CINDY LANE
APN 006-562-015; FILE #05-COC-0594-CR
WHEREAS, on September 28, 2005 a Certificate of Compliance application for 800 Cindy Lane
was filed on behalf of the property owners; and
WHEREAS, on November 16, 2005, the City Attorney's office recommended that the City issue
a conditional certificate of compliance for the property imposing those conditions, including
minimum lot size, that would have applied to the property on the date of its purchase by
Appellants, September 15, 1979; and
WHEREAS, on March 14, 2006 a Conditional Certificate of Compliance was recorded by the
City in the Official Records of the County of Sonoma, California, pertaining to the property at
800 Cindy Lane, stating that the subject property "should be deemed lawfully created under the
Subdivision Map Act for purposes of sale, lease, or financing" and further requiring that, prior to
any development of the site, zoning standards applicable at the time Appellants purchased the
property in 1979 must be satisfied, namely, compliance with the minimum lot area requirement
of 6,500 square feet; compliance with the minimum lot depth requirement of 100 feet; and
compliance with the minimum lot width requirement of 65 feet; and
WHEREAS, on March 30, 2006, Appellants filed an appeal to the City Council with the City
Clerk contending that: Appellants are entitled to the issuance of an unconditional Certificate of
Compliance and that compliance with the above described zoning standards should not be
required; and that even assuming a Conditional Certificate of Compliance could be issued by the
City, the conditions contained in the Certificate are improper; and
WHEREAS, the City Council scheduled the appeal for May 1, 2006 and continued it to May 15,
2006 at the request of the applicant; and
WHEREAS, the City Council heard said appeal on May 15, 2005.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma,
following a public hearing and consideration of all of the evidence in the record, does hereby
deny the appeal of Rick Costa and Robert Ramirez based on the following findings:
1. That Government Code §66412.6 provides that the City may require a conditional
certificate of compliance and that Government Code §66499.35 provides that the City
may impose conditions on the certificate of compliance that could have been imposed on
the owners of the Property at the time they acquired their interest in the Property.
2. That purchase of the Property at a tax sale does not negate the owners' obligations to
comply with zoning requirements, requirements for a building permit or other lawful
restrictions on the use of the Property.
5
Attachment 1
MAR 1 a 2006
WHEN RECORDED, PLEASE MAIL TO:
City Clerk
City of Petaluma
P.O. Box 61
Petaluma, CA 94952
Z0otoC)3DOD
`_,'"�=�i;�e=4t'e�; •ems,
CONDITIONAL CERTIFICATE OF COMPLIANCE - LAND DIVISION
(Government Code, Section 66499.35 and
Local Ordinances Enacted Pursuant Thereto)
WHEREAS, Rick Costa and Robert Ramirez are the owners of the real property situated in the City of
Petaluma, County of Sonoma, State of California, commonly known as Assessor's Parcel Number 006-
562-015, 800 Cindy Lane, Petaluma, and more particularly described in Exhibit "A" attached hereto and
incorporated herein ("the Property"); and
WHEREAS, the history of the creation of the Property shows the following sequence of events: 1) That
the Property was originally part a larger parcel in the City of Petaluma subdivided in 1971 as the
Cherry Valley Subdivision; 2) thatt Lhc Property, a triangular parcel of approximately 5,000 square feet,
was substandard in size for die applicable zoning district at the time of the processing of Lhe Cherry
Valley Subdivision, and was not intended to be a separate legal parcel in that subdivision; 3) that rather,
the Property was in effect a designated remainder parcel that the City, as a condition of the subdivision
approval, required be deeded to art adjacent property owner prior to recordation of the Final subdivision
map; 4) that the subdivider of the Cherry Valley Subdivision executed a deed of the Property to the
neighboring property owner on September 15, 1971, also reserving a required 50' wide roadway easement
over the parcel, however this deed was never recorded in the Official Records of the County of Sonoma;
5) that the final subdivision map was nevertheless approved, and was recorded on November 3, 1971; 6)
that, at some point after creation of the subdivision, the Sonoma County Tax Assessor assigned a parcel
number to the Property, and began assessing taxes against the subdivider; 7) that after tite property taxes
remained unpaid for a period of time, the Property was tax -deeded to the
State; and 8) that the current owners purchased the Property for at a substantially discounted price at the
ensuing tax sale by the County of Sonoma on September 19, 1979; and
WHEREAS, the City of Petaluma recognizes that the September 15, 1971 deed is no longer valid as
against the current owners of the Property, and that the Property should be deemed to be a legally created
remainder parcel under the provisions of Government Code §66424.6, and therefore its creation did not
violate the provisions of the Subdivision Map Act and local ordinances enacted pursuant thereto; and
WHEREAS, die Property should be deemed to be lawfully created under the Subdivision Map Act for
Purposes of sale, lease or financing; and
WHEREAS, Government Code §66424.6 provides that while a remainder parcel may be sold without
further compliance with the Subdivision Map Act, the City may still require a certificate of compliance or
a conditional certificate of compliance, and under Government Code §66499.35, the City may impose
conditions on the certificate of compliance that could have been imposed on the owners of the Property at
the time they acquired their interest in the Property, to wit, on September l5, t1979.
h
tomt{{
7
Attachment 2
NOW THEREFORE, THE CITY OF PETALUMA, a California municipal corporation, acting at the
request of Rick Costa and Robert Ramirez, the owners of the real property herein described, pursuant to
Section 66499.35 of the State of California Subdivision Map Act, and of local ordinances and resolutions
enacted pursuant thereto, hereby certifies:
1. That the real property and/or the division thereof described herein does comply, as conditioned,
with the applicable provisions of the Subdivision Map Act and of local ordinances enacted
pursuant thereto; and,
2. That the issuance and recordation of this Conditional Certificate of Compliance has been duly
authorized and approved by the Community Development Director of the City of Petaluma,
pursuant to City Council Resolution No. 8323 N.C.S.; and,
3. This certificate relates only to issues of compliance or noncompliance with the Subdivision Map
Act and local ordinances enacted pursuant thereto. The parcel described herein may be sold,
leased, or financed without further compliance with the Subdivision Map Act or any local
ordinance enacted pursuant thereto. Development of the parcel will require satisfaction of
the conditions as well as issuance of a permit or permits, or other grant or grants of
approval; and,
4. That the following conditions are imposed in granting this Certificate of Compliance and shall be
fulfilled and implemented by the applicant or applicant's grantee prior to development of the
property (refer to file number 05-COC-0594-CR, 800 Cindy Lane; on file with the City of
Petaluma Community Development Department for additional information):
A. The parcel shall comply with zoning standards applicable at the time Rick Costa and Robert
Ramirez purchased the property (September 15, 1979) including, but not limited to, the
following:
1. The minimum lot area shall be 6,500 square feet.
2. The minimum lot depth shall be 100 feet.
3. The minimum lot width shall be 65 feet. (See Exhibit "C.")
CAVEAT: Recording of this instrument does NOT indicate or imply that the subject property complies
in any respect with the City of Petaluma Zoning Ordinance including, but not limited to,
requirements of said ordinance with respect to lot area, street frontage or lot width.
The real property affected by this action is situated in the City of Petaluma, County of Sonoma, State of
California, and is commonly known as Assessor's Parcel Number 006-562-015, property owners Rick
Costa and Robert Ramirez, and is more particularly described in Exhibit "A", attached hereto and made a
part hereof for all purposes.
Date of Issuance: March 14, 2006
CITY OF PETALUMA
A California Municipal Corporation
.-I
BY:
Mile Moore,
Community Development Director
CC§ 1181 (g)
STATE OF CALIFORNIA
) ss
COUNTY OF SONOMA
ACKNOWLEDGEMENT
On this H� day of M arLh , 2006, before me,
City Clerk, City of Petaluma, personally appeared
%ioo rof auia 0 no 10" A-r-n (-I I n.
personally known to me to be (or 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 signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
City Clerk
SAEnginecring Division\Devclopmcnt Procrosing\Plmning RcfcrmislCOC19a0 Cindy\800CindyLnneCOC
CL R COOPER
49my
Commleslon N 1587172
2Nolory Public _ Collfomlo
S0rVDM0 County
Comm. Explros Apr S. 200 `
WAr
EXHIBIT "A"
LEGAL DESCRIPTION
SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF SONOMA, AND CITY OF PETALUMA
BEING A PORTION OF LOT 565, AS SAID LOT IS NUMBERED AND DESIGNATED UPON THE
OFFICIAL MAP OF THE CITY OF PETALUMA, AS PREPARED BY JAS. T. STRATTON, ALSO BEING A
PORTION OF THE CHERRY VALLEY SUBDIVISION FILED IN BOOK 162 OF MAPS AT PAGES 28 AND
29, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: .
BEGINNING AT THE NORTHEASTERLY CORNER OF LOT 21 AS SHOWN ON THE ABOVE
MENTIONED CHERRY VALLEY SUBDIVISION; THENCE SOUTH 12" 12' 40" WEST, 23.79 FEET;
THENCE SOUTH 78" 07' 47" EAST, 132.22 FEET TO THE SOUTHWEST CORNER OF LOT 20;
THENCE ALONG THE WEST LINE OF LOT 20, NORTH 17° 09' 20" WEST, 46.04 FEET; THENCE
CURVING TO THE RIGHT WITH A RADIUS OF 20 FEET FOR A DISTANCE OF 33.24 FEET TO
THE SOUTH LINE OF CINDY LANE; THENCE SOUTH 780 03' 30" WEST 49.30 FEET, THENCE
CURVING TO THE RIGHT WITH A RADIUS OF 410 FEET FOR A DISTANCE OF 78.13 FEET
TO THE POINT OF BEGINNING.
CONTAINING 0.115 ACRES (5,011 SQUARE FEET) MORE OR LESS,
THIS DESCRIPTION WAS PREPARED FROM RECORD DATA.
THIS DESCRIPTION WAS PREPARED IN THE OFFICE OF STEVEN J. LAFRANCHI & ASSOCIATES, INC.
EXPIRATION DATE 12/31/06
NO.6368
M�P• 12-31-06
UAIt=
STEVEN J. LAFRANCHI & ASSOCIATES, INC. RECEIVEL)
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNER�EP 2 8 2005
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954 -
TEL707-762-3122 FAX707-76Z-3239 PLgNNING DIVISION
o9959B D1
a
EXHIBIT 'B'
FOR GRAPHIC ILLUSTRATION AND INFORMATIVE PURPOSES ONLY
SEE EXHIBIT 'A' FOR LEGAL DESCRIPTION
n Z
O
N �
O
�PNE
• ,t
S 78'07'47" E 132.22'
COURSE DATA
S 12'12'40" W 23.79'
2 N 17'09'20" W 46.04"
J R=20.00' A=95'12'50" L=33.24'
4 S 78'03'30" W 49.30'
5 R=410.00' A=10'55'08" L=78.13'
LEGEND
P.O.B. POINT OF BEGINNING
HISTORIC PARCEL
5011 S.F.
APN 005-562-015
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312
PETALUMA, CALIFORNIA 94954
707-762-3122 FAX 707-762-3239
Z•IJobsIROM&riZ, RI04959COC&.al$C
ro
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'fir W-,v`.(IJ.�
tk/M 2 7 2006
P;i:ryl�l 'T V 1p �Y,P.lr�ar hrlpir
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U lani.� al I L):a..l. l.: , .1-� _'li: I, I
March 27, 2006
3YHAND DELIVERY
'ity Clerk
;ity of Petaluma
I English Street
'etaluma, CA 94952
:i BERNHEIM
HICKS
E: is
A 1 1 0 R N E Y 5
Notice of Appeal from Determination on Application for Certificate of Compliance
800 Cindy Lane, Assessor's Parcel No. 006-562-015
"Remainder Parcel" Between Lots 20 and 21,
Cherry Valley Subdivision, Petaluma, California
City File No. 05-COC-0594-CR
Our File No. 4190-40927
,adies and Gentlemen:
On behalf of our clients, Rick Costa and Robert Ramirez who own the above -referenced
arcel, we hereby appeal from the determination made by the City of Petaluma's Community
>evelopment Director and its City Engineer in response to our clients' application for a Certificate
f Compliance. More specifically, we appeal from the issuance of that certain Conditional
.ertificate of Compliance on March 14, 2006, which was recorded on that date as Document No.
006-030003 in the Official Records of Sonoma County, California.
In summary, it is our contention that Mr. Costa and Mr. Ramirez are entitled, as a matter of
Lw, to the issuance of an unconditional Certificate of Compliance. Secondly, even assuming, for
ike of discussion, that a Conditional Certificate of Compliance could be issued by the City, the
:)nditions contained in the Certificate as issued are improper.
Accordingly, we ask that the Certificate issued and recorded March 14, 2006 be cancelled,
-id that a proper Certificate be issued and recorded in its place.
Background
The parcel in question lies between Lots 20 and 21 on the Final Map of the Cherry Valley
abdivision that was approved by the City of Petaluma and recorded in the Sonoma County
ecorder's Office on November 3, 1971 in Book 162 of Maps, at pages 28-29. Although not
rmbered or otherwise labeled, the parcel in question was drawn as a separate parcel, and
LAN'RFNCE BERNHEIM
RIc HARo 1. HICKS
HEIDI S. BERNHEI.f
MAIN OFFICE AND
MAILING ADDRESS:
520 A STREET
SANTA ROSA. CA 95401
TEL: 202 528 7555
FAX: 207 520 2302
SONOMA OFFICE:
620 WEST NARA STREET
SUITE R
TEL: 202 935 3620
11
' Attachment 3
ity Clerk, City of Petaluma
office ofAppeol
[arch 27, 2006
age 2
aalifies as either a designated remainder parcel under Government Code §66424.6(a) or an
miffed parcel under §66424.6(b).
It has been represented to us by the City (but not yet confirmed by us) that documents on
le with the City of Petaluma indicate that the subdivider for the Cherry Valley Subdivision,
amille Enterprises, did not intend to create the parcel for purposes of sale, lease or financing, but
istead intended that the subject parcel be used to provide a 50' wide road easement for an
djoining property to the south owned by a third party that was not included within the
abdivision. However, that easement was never lawfully created and, notwithstanding that fact,
ie City proceed to approve and record the final map in 1971. Because the subject parcel was
reated for purposes other than sale, lease or financing, its creation in 1971 did not violate the
ubdivision Map Act. This has been acknowledged by the City and, indeed, the Conditional
;ertificate of Compliance as issued on March 14 expressly recites that "the Property should be
eemed to be a legally created remainder parcel under the provisions of Government Code
66424.6, and therefore its creation did not violate the provisions of the Subdivision Map Act and
)cal ordinances enacted pursuant thereto." The Certificate further recites that "the Property
hould be deemed to be lawfully created under the Subdivision Map Act for purposes of sale, lease
�r financing."
We do not dispute these findings by the City for the purposes of this appeal. In fact, we
gree with them. The difficulty we have is that City staff, in the face of a record showing no
subdivision Map Act violation, decided to issue a conditional instead of an unconditional
:ertificate, and then proceeded to impose conditions on the conditional Certificate in terms of
ninimum lot size, depth and width requirements that the parcel does not meet and can not possibly
atisfy. For example, staff imposed a minimum lot area requirement of 6,500 square feet. The
)arcel, however, has only 5,011 square feet and is surrounded by other developed properties
.nd/or a public street. There is no possibility that the parcel could be enlarged to satisfy this
.ondition.
Staffs determination, if sustained, will effectively deprive the owners of all economically
viable use of their property at a point in the process where a development application has not yet
:ven been submitted for review or consideration by the City.
The Applicants Are Entitled to an Unconditional Certificate of Compliance
Whether characterized as a designated remainder or an omitted parcel, the Subdivision
vlap Act expressly provides that the parcel "may subsequently be sold without any further
requirement of the filing of a parcel map or final map, but the local agency may require a
;ertificate of compliance or conditional certificate of compliance." Government Code
?66424.6(d).
Whether an applicant is entitled to an unconditional or conditional Certificate of
ompliance depends upon whether the subject parcel was lawfully created in compliance with the
Id-
:y Clerk, City of Petaluma
Lice of Appeal
arch 27, 2006
ge 3
bdivision Map Act and local ordinances enacted thereunder. If the parcel complies, the
plicant is entitled to an unconditional Certificate of Compliance under Government Code
6499.35(a). If the parcel was created in violation of the Act, the local agency must issue a
nditional Certificate of Compliance under §66499.35(b).
As stated in Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 436, 275 Ca1.Rptr. 113,
"Government Code section 66499.35 provides that, upon the request of an owner of real
property, the county board of supervisors shall determine whether the property complies
with the provisions of the Subdivision Map Act. [Citations.] If the board determines that
the property complies, it must issue [an unconditional] certificate of compliance so stating.
If it determines that the property does not comply, the board must issue a certificate of
compliance or conditional certificate of compliance informing the owner of conditions
which must be fulfilled before a development permit will be granted. (Ibid.)"'
Here, the record establishes, and the City has acknowledged, that the subject parcel was
wfally created under the Subdivision Map Act. Therefore, the Applicants are entitled, as a
otter of law, to an unconditional Certificate of Compliance under Government Code
6499.35(a). "The statute confers no discretion upon the local agency to deny [an unconditional]
:rtificate of compliance where compliance is found." The issuance of an unconditional
erti iicate in such circumstances is a "ministerial act" that cannot lawfully be refused. Findleton
Board of Supervisors (f993) 12 Cal.AppAth 709, 714,15 Cal.Rptr.2d 665, 668.
There is another, separate and independent basis entitling Mr. Costa and Mr. Ramirez to
e issuance of an unconditional Certificate of Compliance in this case. It stems from the fact that
ey acquired the property pursuant to a tax sale, a fact also acknowledged by the City and recited
the Certificate issued on March 14, 2006. The California Attorney General's Office has issued
i opinion discussing this subject. See, 1981 at 64 Ops. Cal. Atty. Gen. 814 (1981). That Opinion
luarely addresses the legality under the Subdivision Map Act of a tax -deeded parcel and the
uchaser's right to an unconditional Certificate of Compliance. The Attorney General concluded
iat "[t]he Subdivision Map Act and subdivision ordinances enacted pursuant thereto do not apply
the tax collector's sale of a portion of a tax -deeded parcel' and, further, "[w]hen the tax
illector sells a portion of a tax -deeded parcel at a tax sale the purchaser is entitled to [an
aconditional] certificate of compliance as to such portion as provided in Government Code
action 66499.35."
[t should.be noted that, effective January 1, 2002, the California Legislature amended §66499.35(b) to eliminate a
cal agency's discretion to issue either an unconditional or conditional Certificate of Compliance where the parcel
)es not comply. After that date, if a local agency determines that the parcel does not comply, it must issue a
nditional Certificate. See, 9 Miller & Starr, California Real Estate, Section 25:222 (Updated 2005).
13
ty Clerk, City of Petaluma
?tice of Appeal
arch 27, 2006
ige 4
For the reasons set forth above, Rick Costa and Robert Ramirez are entitled as a matter of
w to the issuance of an unconditional Certificate of Compliance. The City has no discretion in
,e matter, but must issue an unconditional Certificate as a ministerial act.
Lssumine a Conditional Certificate Could Be Issued, the Conditions Imposed Are Improper
Although a local agency is required to issue a conditional certificate of compliance (as
pposed to an unconditional certificate) where the Subdivision Map Act has been violated, the Act
onetheless grants the agency a level of discretion in deciding what conditions should be included
i the certificate. See, Government Code §66499.35(b) which provides that, when a parcel does
of comply with Act, the agency "shall issue a conditional certificate of compliance" and that it
,nay ... impose any conditions that would have been applicable to the division of the property at
ie time the applicant acquired his or her interest therein ...." The use of the word "may" in the
.ct indicates that, although the local agency may impose such conditions, it is not required to. It
clear under the law that, where discretion is conferred on a local agency by a statute, it must be
xercised reasonably and may not be abused.
In this case, staff decided to impose conditions on the Certificate under review that the
abject parcel does not meet and cannot possibly satisfy. The Conditional Certificate of
:ompliance, as issued and recorded by staff, imposes conditions requiring that the subject parcel
ave a minimum lot area of 6,500 square feet, a minimum lot depth of 100 feet, and a minimum
)t width of 65 feet. The problem with these conditions is that the lot is too small and does not
omply, and cannot possibly comply, with any of these requirements. For example, the parcel is
my 5,011 square feet in size and, therefore, cannot possibly satisfy a minimum lot area
equirement of 6,500 square feet. Moreover, because the property is surrounded on all sides by
eveloped properties and a public street, there is no possibility that the parcel could be enlarged to
neet these conditions.
We also note that, given the fact that these conditions have been imposed in a Conditional
'ertificate of Compliance issued under the Subdivision Map Act, the effect of the Certificate will
ie to deny Mr. Costa and Mr. Ramirez the benefits of those provisions in the City's Zoning
)rdinance relating to lots that are non -conforming in area, width or depth (Section 2-306 of the
'etaluma Municipal Code), and will also deprive them of the opportunity to apply for and obtain a
+ariance (Sections 26-300 et seq). There is no procedure available under the Subdivision Map Act
or obtaining variances or other relief from conditions imposed by a local agency in a conditional
zrtifrcate of compliance.
Pursuant to the discretion conferred by Government Code §66499.35(b), City staff was not
equired to impose the conditions set forth in the Conditional Certificate of Compliance as issued
and recorded on March 14, 2006. It is our contention that staffs decision to impose conditions
hat cannot possibly be met constituted an unreasonable exercise of discretion as a matter of law.
'.ity Clerk, City of Petaluma
'otice of Appeal
larch 27, 2006
age 5
Assuming for sake of discussion that the City could properly issue a Conditional
:ertificate of Compliance in this situation, we suggest that the types of conditions that could
roperly be imposed would be those that are capable of being satisfied and are reasonably related
r the development of the property. See, e.g., 9 Miller & Starr, supra, §25:172. The City cannot,
i a case such as this, impose minimum lot area, width or depth requirements in a Conditional
:ertificate of Compliance that the parcel does not and cannot possibly satisfy.
Conclusion
The City staffs decision to issue a Conditional Certificate of Compliance imposing
onditions that cannot possibly be met would, if sustained, effectively deprive Mr. Costa and Mr.
':amirez of substantially all viable economic use of their property at a point in the process when
o application has yet been submitted or considered by the City for the development of the
roperty. Not only is this determination contrary to the Subdivision Map Act as it has been
iterpreted and applied by the Courts, the City's actions raise serious constitutional issues. See,
ucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 112 S.Ct. 2886.
For the reasons outlined above, Mr. Costa and Mr. Ramirez are entitled, as a matter of law,
the issuance of an unconditional Certificate of Compliance. The Conditional Certificate issued
nd recorded on March 14, 2006 should be cancelled and replaced by a proper Certificate.
In closing, we add that we have still not received from the City various documents we
:quested in a March 1, 2006 letter to Assistant City Attorney Lisa A. Goldfren, Esq. We
nderstand that the City is endeavoring to make those documents available to us. We may have
dditional comments in relation to this matter after those documents have been provided to us.
Re e lly submitted,
Richard I Hicks
JJH/klm
Eric Danly, Esq., City Attorney
Lisa A. Goldfren, Esq., Assistant City Attorney
Mike Moore, Director of Community Development
Tiffany Robbe, Associate Planner
Curtis M. Bates, City Engineer
Steven J. Lafranchi
15
BERNHEIM
March 30, 2006 & HICKS
BYHAND DELIVERY
A T T O R N E Y-
City of Petaluma
Community Development Department LAWRENCE BERNHEIM
Planning Division
11 English Street RICHARD Hlccs
Petaluma, CA 94952 HEIDI 5. BERNHEIM"
Attention: Tiffany Robbe, Associate Planner
Re: Appeal from Determination on Application for Certificate of Compliance
800 Cindy Lane, Assessor's Parcel No. 006-562-015
"Remainder Parcel" Between Lots 20 and 21,
Cherry Valley Subdivision, Petaluma, California
City File No. 05-COC-0594-CR
Our File No. 4190-40927
Dear Ms. Robbe:
Thank you for your voice mail message, which I received and listened to this morning,
advising that, in connection with our appeal filed on March 27, the City will require a filing fee, an
Application form, and an Agreement for Payment of Full Cost Recovery Fees.
When I specifically inquired of Lisa A. Goldfien, Assistant City Attorney, regarding the
City's requirements for pursuing an appeal, she referred me only to Section 20.40.100 of the
Petaluma Municipal Code and of the need to file a written notice of appeal. She did not inform
me of any other requirements.
Therefore, please find enclosed at this time our check for $180.20 representing what I
understand from you to be the required filing fee for the appeal, along with the requested
Application and the Agreement for Payment of Full Cost Recovery Fees.
Because I have not yet had an opportunity to inquire into or research the validity of the
enclosed Agreement for Payment of Full Cost Recovery Fees, please be advised that this is being
submitted at this time "under protest."
RJH/klm
Enclosures
cc: Lisa A. Goldfien, Esq.
MAIN OFFICE AND
MAILING ADDRESS:
53B A STREET
SANTA ROSA. CA 95401
TEL: 707 520 7555
FAX: 707 526 2307
50NOMA OFFICE:
670 WEST NARA STREET
SUITE B
TEL: 707 935 3620
I ddnilll,d hi C,I..... 5 WnshinRmn I U
Page 1 of 1
Robbe, Tiffany
From: Mitch Haydon[MHaydon@eresourcesolutions.com]
Sent: Friday, April 28, 2006 4:07 PM
To: Robbe, Tiffany
Cc: mchaydon@sbcglobal.net
Subject: Richard Hicks Appeal - File 06-APL-0137-CR
Tiffany -
As a follow up to the information we discussed, I would like the following to be made part of the official public
comments.
To the Petaluma City Council -
In reference to the Richard Hicks Appeal Notice, File 06-APL-0137-CR, I have the following comments:
I am a nearby landowner, and do not consider myself affected by the outcome of this appeal. The parcel is
located downhill from me, and any potential view of development would likely be obscured by trees and other
homes. I have observed this parcel and it appears small, and I doubt that it meets the minirnim size and setback
requirements as stated in the Conditional Certificate of Compliance.
Any development of this parcel would likely require a waiver forzoning setbacks, and other zoning codes. If the
site were to be developed using an appropriate site plan, the parcel has potential to be developed as infill,
however the adjacent landowners would be much more affected than I.
In my opinion,
1) Please verify that the conditions contained in the Conditional Certificate of Compliance are proper and in
accordance with the Subdivision Map Act standards at the time of purchase.
2) The Conditional Certificate of Compliance requirements are only appropriate if the landowner was given
sufficient notice of these requirements at time of purchase.
3) The various compliance specifications (lot area, lot depth, and lot width) are approximately 27 years old, and
as such, should be reviewed and updated to current standards as appropriate. The landowner should only be
held to the less restrictive specifications (either 1979, 2006, or combination).
4) If the appeal is granted, and an Unconditional Certificate of Compliance is issued, I would hope that the
Unconditional CC would only release the compliance requirements as stated in the Notice of Public Hearing. I
would expect that the landowner would still need to comply with minimum setback requirements, or petition for a
waiver of such zoning requirements.
Thank you for your attention in this matter,
Mitchell C. Haydon
820 Schuman Lane
Petaluma, CA 94952
[7
Attachment 4
June 28, 2006
Community Development Department
Planning Division
City of Petaluma
11 English St.
Petaluma, CA 94952
RECEIVED
MAY 0 2, 2OD6
CUMOTIY DEVIROPMENT CEPARTMENI
This letter is in regard to the Notice of Public Hearing of the Richard Hicks Appeal of the
Conditional Certificate of Compliance.issued for the vacant parcel at 800 Cindy Lane.
City File Number: 06-APL-0137-CR.
I own a home in the Vanessa and Cindy Lane neighborhood. It is strongly evident
something good must be done to this old vacant lot located at 800 Cindy Lane. Thanks to
Mr. Costa, Ramirez, and Hicks for trying. My suggestion is to either approve building a
small house, pave the lot for additional guest parking, develop a neighborhood "victory
garden", or just simply put in a beautiful rose garden for all to enjoy! Today, it is just an
eyesore, collecting weeds & trash, and degrading all the other homes in the area! I truly
believe a small home on this vacant lot would greatly enhance this neighborhood and
increase the values of the homes on these two streets.
I'm sure my feelings are not alone, even if many of the homeowners signed a petition
against building a house. Let's do something to transform this currently ugly piece of
land to something useful!
Anonymous for a good reason!
Iwered By GeoSmart.n
800 Cindy Lane
City of Petaluma, California
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Attachment 5