Chapter 14.28
DEFERRAL OF CONDITIONS FOR APPROVAL AND SITE IMPROVEMENTS
Sections:
14.28.010 Purpose
14.28.020 Conditions for Approval Met
14.28.030 On-Site and Off-Site Improvements Required
14.28.040 Application to Defer Improvements or Conditions
14.28.050 Bond to Defer Improvements or Conditions
14.28.060 Deferral Period
14.28.070 Security in Lieu of Bond
14.28.080 Action Against the Bond
14.28.090 Substitution of Parties
14.28.100 Restrictive Covenant to Defer Improvements
14.28.110 Maintenance Bond
14.28.010 Purpose
This chapter establishes the City’s authority to require improvements, describes the administrative process by which improvements may be secured, and provides the procedure by which financial guarantees of improvement may be posted, converted or recovered. (Ord. 09-1012 § 1 (Exh. A))
14.28.020 Conditions for Approval Met
A. No subdivision shall receive final approval until any and all conditions for approval are met to the satisfaction of the City.
B. Notwithstanding any other provision of this title, the Directors shall have the power to authorize an applicant to defer the fulfillment of conditions; provided, that deferral may only be permitted in accordance with this chapter. (Ord. 09-1012 § 1 (Exh. A))
14.28.030 On-Site and Off-Site Improvements Required
A. No subdivision shall receive final approval until any and all required on-site and off-site improvements are constructed in the manner prescribed by the City. This requirement shall apply equally with regard to either public or private improvements.
B. Notwithstanding any other provision of this title, the Director of the Department of Public Works shall have the power to authorize the deferral of required improvements; provided, that deferral may only be permitted in accordance with this chapter.
C. The Director of the Department of Public Works shall only permit the deferral of improvements when associated with an application for short subdivision. No other form of subdivision shall be eligible. (Ord. 09-1012 § 1 (Exh. A))
14.28.040 Application to Defer Improvements or Conditions
A. The Public Works Director may defer on-site and off-site improvements or the fulfillment of conditions upon receipt of a compete application for deferral.
B. The application for deferral shall be made in the form specified by the City. Applications for the deferral of improvements shall include full and complete engineering drawings of the required improvements.
C. The Directors’ approval or denial of any deferral, as well as the amount of any applicable bond or financial security, shall be conclusive. (Ord. 09-1012 § 1 (Exh. A))
14.28.050 Bond to Defer Improvements or Conditions
A. Where preliminary approval for a deferral is granted, the applicant shall furnish a performance bond or financial guarantee to the City in an amount no less than one hundred fifty percent (150%) of the estimated value of the required improvements or conditions. The Directors shall only provide the applicant with final approval of the deferral following the City’s receipt of bond. Only a final deferral agreement shall be binding upon the City.
B. The bond shall specify the exact work to be performed or conditions to be met, and shall provide that no change, extension of time, alteration or addition shall otherwise affect the obligation on bond.
C. The bond shall specify the City’s right to enter onto any subject property and install any necessary improvements should the City take action against the bond.
D. The applicant shall provide the bond or financial guarantee prior to final approval of the applicable short subdivision.
E. The City shall only release such a bond or financial guarantee once the Directors determine that all required improvements have been made and all conditions have been satisfied.
F. The bond or financial guarantee shall be further conditioned on the full restoration of the site in the event that grading, clearing or any other site preparation or work is begun and abandoned.
G. When determining the value of conditions and improvements, the Directors shall consider all funds necessary for the City to construct improvements or satisfy conditions in place of the applicant. In addition, the respective Directors shall consider all resources necessary to rectify any reasonably foreseeable impact on the public health, safety or general welfare that may arise from the applicant’s failure to comply with this title. Such costs may include, but are not limited to, materials, general labor, legal and consulting expenses, and public health costs. (Ord. 09-1012 § 1 (Exh. A))
14.28.060 Deferral Period
A. The bond shall specify that all work shall be completed and conditions met within a period of time set by the City. When no such period is determined, all work shall be completed and conditions met no later than one (1) year of the date on which the original deferral was granted.
B. Not later than 30 days to the end of the established period as determined under subsection (A) of this section, or thirty (30) days to the end of the one (1) year, the applicant may apply to the City for extension of the deferral. The applicant shall bear the burden for demonstrating cause for the extension.
C. Should the Directors determine that the applicant has demonstrated sufficient cause, the deferral may be extended for an additional period of up to one (1) year.
D. No improvement or condition shall be deferred for a period in excess of three (3) years from the date on which the original deferral was granted. Where any improvement is not constructed or any condition is not met within three (3) years, the City shall either take action against the bond or financial guarantee or vacate the short subdivision.
E. Upon review and a written substantiation of need, the bond may be decreased or increased as necessary to ensure the completion or satisfaction of any remaining improvements or conditions. In every case, the bond shall remain at an amount no less than one hundred fifty percent (150%) of the estimated value of any remaining improvements or conditions. (Ord. 09-1012 § 1 (Exh. A))
14.28.070 Security in Lieu of Bond
The Directors may authorize the substitution of a certified check, cashier’s check, or other adequate security in lieu of a bond. Any such check or other security shall be made payable to the City, and shall be in the same amount as that established for the bond. (Ord. 09-1012 § 1 (Exh. A))
14.28.080 Action Against the Bond
The City shall retain the right, in addition to all other remedies available by law, to proceed against the bond, or other security in lieu thereof. (Ord. 09-1012 § 1 (Exh. A))
14.28.090 Substitution of Parties
A. The requirement of posting of any bond or other security for deferral shall be binding on the applicant, and upon on all heirs, successors and assigns of the applicant.
B. No release of the applicant, owner or developer on the bond shall be granted except where an assignee or substitute party is obligated to construct or satisfy any remaining improvements or conditions through the posting of a new bond or other security with the City.
C. Where any such new bond is to be provided by a condominium owners’ association or property owners’ association, then it shall be necessary for the association to have voted to assume the obligation and a copy of the minutes of the association, duly certified, shall be filed with the new bond prior to approval by the City. (Ord. 09-1012 § 1 (Exh. A))
14.28.100 Restrictive Covenant to Defer Improvements
Where the applicant proposes a residential short subdivision only, a restrictive covenant running with the land may be substituted for the bond or other financial security normally required for a deferral of improvements. The restrictive covenants shall be rendered in a form acceptable to the City and the following standards shall apply:
A. Approval of restrictive covenants in place of a bond or other security shall require a determination by the Director of the Department of Public Works that:
1. No similar improvements exist within the vicinity;
2. It is unlikely that the specified improvements will be necessary within the following five (5) year period;
3. The lack of improvements shall cause no detrimental effect on the public health, safety or welfare; and
4. It is unlikely that the zoning of the site, or of properties adjacent to the site, will change to a higher classification within the following five (5) year period.
B. The restrictive covenant shall require the current or future property owners to join in any future local improvement district (LID) established to construct the required improvements, and that they pay their pro-rata share of the final assessment for that district.
1. Their pro-rata share of that final assessment shall computed by determining the assessment applicable to the original undivided parcel, and then proportionately allocating that assessment between each lot created by short subdivision;
2. Nothing in this provision shall be construed to restrain any right on the part of the current or future property owners to object to individual assessments.
C. The restrictive covenant shall require that, upon a determination by the Director of the Department of Public Works that the deferred improvements have become necessary, the current or future property owners immediately construct the improvements at their own expense.
D. The restrictive covenant shall require that, in the event the City decides to construct the improvements as part of a public works project, the current or future property owners pay the City their pro-rata share of the cost of the project.
1. Their pro-rata share of that project shall be computed by determining the assessment applicable to the original undivided parcel, and then proportionately allocating that assessment between each lot created by short subdivision. (Ord. 09-1012 § 1 (Exh. A))
14.28.110 Maintenance Bond
As a condition of plat approval, the Director of the Department of Public Works shall have the authority to require the posting of a bond to the City warranting the operation, maintenance and repairs of all required on-site and off-site improvements. Any such condition shall apply for the period of two (2) years following final long subdivision plat approval and one (1) year for final short plat approval. In any and all cases, whether bonding or deferring improvements, building permits shall not be issued until improvements are complete, inspected, and permits finalized. (Ord. 09-1012 § 1 (Exh. A))