HomeMy WebLinkAboutCC 21 TRANS IMP PROG 11-07-94~0. 21
1].-7-94
3ATE:
NOVEMBER 7, 1994
Inter-Com
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
COMMUNITY DEVELOPMENT DEPARTMENT
REQUEST TO WAIVE TRANSPORTATION SYSTEM
FEES FOR TT 14914 (NEWPORT CAMINO PLAZA)
IMPROVEMENT
PROGRAM
RECOMMENDATION
It is recommended that the City Council by minute motion deny the
request to waive Transportation System Improvement Program fees for
the subject development.
FISCAL IMPACT
If the required Transportation System Improvement Program fees were
waived by the City Council, the City of Tustin would be responsible
for paying the required fees from City funds to the Transportation
System Improvement Authority, pursuant to Section 3(h) of the
Tustin - Santa Ana Joint Powers Agreement. The required fees for
this project total approximately $101,635.
In addition, it is already anticipated that the applicant will be
requesting that the Redevelopment Agency enter into a Reimbursement
Agreement to financially assist in the undergrounding of overhead
utilities in the alley to the north of this property. This was
reinforced in Condition 1.13 of Planning Commission Resolution 3280
approved by the City Council on July 5, 1994.
BACKGROUND
In November of 1989, the City Council adopted Ordinance 1037 and
entered into a Joint Powers Agreement with the City of Santa Ana
which created the Transportation System Improvement Authority
(Attachment A). The purpose of the Authority was for Tustin and
Santa Ana to jointly develop and maintain a program for
transportation system improvements in certain areas of each City,
to comprehensively identify all needed transportation system
improvements and their priority, to determine the appropriate
developer fees to finance said improvements, and to control the
expenditure of appropriate development fee revenues for area wide
transportation improvements which benefit each respective
Transportation System Improvement Program (TSIP) Area. Subsequent
resolutions establishing the applicable fees for Benefit Area "A"
and "B" have been adopted by the City Council. Resolution 94-72
city Council Report
Fee Waiver Request,
November 7, 1994
Page 2
TT 14914
established the current fee amount for Benefit Area "A" at $5.53
per square foot of new construction, and $3.31 per square foot of
new construction in Benefit Area "B" (Attachment B). A copy of the
TSIP Map identifying the location of Benefit Areas "A" and "B" is
included in Attachment C. Please note that in some cases,
properties fronting both sides of the street along a Benefit Area
boundary may be encumbered by the fee program. This methodology
was created to ensure that a development impacting a designated
street would participate in the program in an equitable manner
which is reinforced in Section 1 of Ordinance 1037 which states in
part:
"...issuance of certain building permits for construction or
improvements on those properties lying at least partially
within any portion of the City designated by resolution..."
On July 5, 1994, the City Council approved Tentative Tract Map
14914, Conditional Use Permit 94-003 and Design Review 94-005 which
authorized an approximate 18,000 square foot retail center,
including a drive-thru restaurant, and consolidated four existing
lots into two lots located at the northeast corner of Newport
Avenue and E1 Camino Real. A copy of the approved tentative map is
included in Attachment D. Lot 1 was proposed to be approximately
1.48 acres in size and "L" shaped with property frontage on both
Newport Avenue and E1 Camino Real. Two retail buildings totaling
approximately 17,000 square feet of floor area were proposed for
Lot 1. Lot 2 was proposed to be .44 acres in size and a
rectangular in shape corner lot with street frontage on both
Newport Avenue and E1 Camino Real. A 900 square foot fast food
restaurant (Rally's Burgers) was proposed to be located on Lot 2.
Condition 8.1.G of Planning Commission Resolution 3280 related to
the project imposed the requirement to pay Transportation System
Improvement Program (TSIP) fees (Attachment E) as the subject
development is located within Benefit Area "A'! As identified in
the map legend for TSIP Benefit Area "A", properties fronting on
both sides of Newport Avenue in this vicinity are encumbered by the
TSIP fee program. All conditions of the tentative tract map also
apply to the Conditional Use Permit and Design Review approvals for
the project. The required TSIP fee for the entire development
required to be paid prior to issuance of a building permit totals
approximately $101,635.
The applicant is now requesting that the TSIP fee be waived. The
applicant is representing that they were not aware of the required
fee and believe that the proposed development is not subject to the
subject fee (Attachment F).
TT 14914
city Council Report
Fee Waiver Request,
November 7, 1994
Page 3
DISCUSSION
The applicant represents that they were not aware of the TSIP fee
requirement. The requirement for the fee and the information to
the applicant that this development was located within TSIP Benefit
Area "A" was given to the applicant in the first set of written
screen check comments provided to the applicant on the subject
project as early as March 15, 1994 and again in second written
screen check comments dated May 11, 1994 (Attachment G). In
addition, payment of TSIP Benefit Area "A" fees were identified as
a mitigation measure in the Initial Study/Negative Declaration
which was prepared and certified as adequate for the project by the
Planning Commission and the City Council in conformance with the
provisions of the California Environmental Quality Act. As a
result, Condition 8.1.G of Planning Commission Resolution 3280
specifically identified the TSIP fee as a condition of the
tentative tract map, conditional use permit and design review
approvals. Until several weeks ago the applicant or property owner
had not specifically inquired about or raised any issues about the
TSIP fee requirement. Since payment of the TSIP fees was
identified as a mitigation measure for the subject project, any
modification to the adopted mitigation measures would require
separate and new environmental evaluation to ensure that the
impacts created by the proposed development could still be
mitigated to a level of insignificance since impact fees will be
used to provide area-wide transportation improvements.
The applicant also represents that the City had pressured the
property owner into submitting and processing a subdivision map in
order for the City to impose the TSIP fees. There was never any
consideration by city staff to require the tentative map in order
to impose the TSIP fee.
The current property configuration includes a total of four lots,
not eight as represented in the applicant's attached letter. The
applicant's development proposal included placing building
structures across existing lot lines which were in conflict with
zoning development standards related to setbacks and minimum lot
sizes, as well as Uniform Building Codes related to buildings,
openings and walls adjacent to property lines. In addition, a
separate lease arrangement and possible property sale for the
drive-thru restaurant was envisioned by the applicant. For these
reasons, processing of a tentative tract map was a method available
to the applicant to effectively satisfy the applicable Zoning and
Uniform Building Code requirements to accommodate the proposed
development. It was the applicant's decision to create two (2)
lots; one (1) to accommodate the retail buildings and; one (1) to
City Council Report
Fee Waiver Request,
November 7, 1994
Page 4
TT 14914
accommodate the drive-thru restaurant. Accordingly, Condition 9.2
of Planning Commission Resolution 3280 requires that a Final Map be
recorded for the development prior to issuance of any Certificates
of Occupancy for the project.
The applicant has suggested that the property could be resubdivided
to create a narrow lot along Newport Avenue which would contain no
development, and thus, no TSIP fees would be required. Regardless
of the number of lots created, or the proposed lot configuration,
the TSIP fee requirement would apply to the entire development
project. The fact that there is reciprocal parking and access
easements across property lines to and from Newport Avenue, the
designated TSIP boundary, would make the TSIP fee applicable to
this development. The applicant would not be able to build the
proposed development on the existing properties across existing
property lines. A Final Map and Reciprocal Access and Parking
Agreement reflecting the approved tentative map were submitted by
the applicant on September 7, 1994 and are currently in plan check.
In response to the applicant's request for waiver of the TSIP fees,
staff has consulted with the City Attorney's Office for the City of
Tustin, the City Attorney's Office for the City of Santa Ana, and
the City of Santa Ana staff related to whether the subject project
is located within TSIP Benefit Area "A" and whether the fees are
applicable to the subject development to ensure that Tustin staff
were properly applying the TSIP fees. All parties consulted concur
with our determination that the subject development is located
within Benefit Area "A" and payment of the TSIP fees at a rate of
$5.53 per square foot of new construction would be required for the
entire project. In addition, Section 3(h) of the Tustin - Santa
Ana Joint Powers Agreement states in part that:
"In the event and to the extent that either party to this
Agreement grants a developer any special exemption from or
limitation on the payment of developer fees, such party shall
pay the Authority the amount of money that the Authority would
have received but for such exemption or limitation..."
Failure to make such a payment would place in jeopardy the City's
relationship with the City of Santa Ana and the joint efforts in
program administration and construction of transportation
improvements envisioned under the terms of the Joint Power
Authority.
City Council Report
Fee Waiver Request, TT 14914
November 7, 1994
Page 5
There are also existing overhead power and telephone lines on the
south side of the alley along the project frontage. The pole and
overhead lines must be removed in conjunction with the proposed
project since the alley will be used to access the project and one
existing power pole is directly in the middle of a proposed
driveway from the alley. The Redevelopment Agency has already
offered potential financial assistance to the property owner by
agreeing to enter into a reimbursement agreement to recover costs
associated with the undergrounding of utilities for the properties
on the north side of the alley.
CONCLUSION
Based upon the information discussed above, the subject development
is located within the Transportation System Improvement Program
Benefit Area "A", and that Benefit Area "A" fees in the amount of
$5.53 per square foot of new construction would be required for the
entire development. It is recommended that the City Council deny
the fee waiver request by Minute Motion.
Daniel Fox,/AICP
Senior Planner
~hr.lstine A. Snin~e~on
sslstant City Manager/
Community Development
CAS:DF :bt :TSIP914.DF
Attachments:
Location Map
a B
B -
C -
D -
E -
F -
G -
Ordinance 1037
Resolution 94-72
TSIP Map
Approved TT 14914
Condition 8.1.G of PC Reso
3280
Applicant's Fee Waiver Request
Screen Check Comments; 3/15/94 and 5/11/94
LO,..,ATIO N
MAP
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~C2
94. c~
NO SCALE
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ORDINANCE NO. 1037
AN ORDINANCE OF THE CITY OF TUSTIN AMENDING THE
TUSTIN CITY CODE BY ADDING SECTION 8101 k. TO
ESTABLISH A TRANSPORTATION SYSTEM IMPROVEMENT
DEVELOPMENT FEE
The city Council of the city of Tustin does hereby ordain as
follows:
Section 1. Section 8101 of Chapter 1, Article 8 of
the Tustin city Code is amended by adding subsection 8101
k. which subsection shall read as follows:
K. Transportation System Improvement Development Fee
In addition to any other charges or improvement
requirements, there shall be a special fee
required as a condition precedent to the
issuance of certain building permits for
construction or improvement on those properties
lying at least partially within any portion of
the city designated by resolution of the City
Councilas a Transportation System Improvement
Program Area.
The Building Official shall require the p~yment
of a speciaI fee in the amount established and
regulated by resolution of the City Council
within a Transportation System Improvement
Program Area before a building permit will be
issued when an application for a building
permit indicates the following:
A construction or improvement project
which will result in a new building or
structure, or an increase in floor area
on a parcel of land which lies wholly or
partially within the boundaries of a
Transportation Improvement Program Area;
and
The estimated cost of the proposed
construction or improvement, as determined
by the Building Official will exceed
twenty thousand dollars ($20,000.00). For
purposes of this section the valuation per
square foot shall not exceed that listed
in the latest edition of Buildinq
Standards Maqazine containing a building
valuation data chart.
The following construction and improvement
projects are specifically excluded from the
ATTACHMENT A
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Ordinance No.
Page 2
1037
requirements of the section.
Construction of single family residential
units and accessory structures.
Tenant improvements and maintenance work
which will not increase the floor area of
existing structures.
c. Off-street parking facilities.
d. Any construction or improvements as to
which a development fee may not be
lawfully be imposed by State law.
Any resolution of the City Council establishing
a Transportation System Improvement Program
Area shall have affixed thereto a map
specifically describing the boundary of such
Transportation System Improvement Program Area
and shall be on file in the office of the city
Clerk.
The purpose of a Transportation System
Improvement Program Area is to identify and
designate those areas where the transportation
system may experience a significant reduction
in the level of service unless corrective
measures are instituted concurrent with
increased transportation demands. Fees
collected for building project~, and
improvements on properties in Transportation
Systems Improvement Program Areas shall be used
to improve the areawide transportation system
within such area, except said fees may be
expended for improvements outside the area when
such improvements will substantially benefit
the transportation system within the area.
All monies received from fees collected
pursuant to Section 8101 k. for permits issued
within a Transportation System Improvement
Authority upon direction of the City Manager
pursuant to the provisions of the Joint
Exercise of Powers Agreement between the city
of Tustin and the City of Santa Ana creating
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Ordinance No. 1037
Page 3
the Tustin-Santa Ana Transportation System
Improvement Authority.
PASSED AND ADOPTED at a regular meeting of the City Council
held on the ~ day of May, 1990.
Richard Edgar
Mayor
E. Wynn
Clerk
city of Tustin
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
ORDINANCE NO. 1037
MARY E. WYNN, city Clerk and ex-officio Clerk of the City Council of
the city of Tustin, california, does hereby certify that the whole
number of the members of the city Council of the city of Tustin is
five; that the above and foregoing Ordinance No. 1037 was duly and
regularly introduced and read at a regular meeting of the city Council
held on the 20th day of November, 1989, and was given its second
reading and duly passed and adopted at a regular meeting held on the
7th day of May, 1990, by the following vote:
coUNCILMEMBER AYES: Edgar, Puckett,
COUNCILMEMBER NOES: None
COUNCILMEMBER ABSTAINED: Prescott
COUNCILMEMBER ABSENT: None
Pontious, Potts
Valerie Whiteman, Chief Deputy city Clerk
RESOLUTION N0. 94-72
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA ESTABLISHING TRANSPORTATION
SYSTEM IMPROVEMENT PROGRAM DEVELOPMENT FEES
WHEREAS, Section 8101 k. of the Tustin City Code establishes the
authority of the City Council to create Transportation System
Improvement Program Areas and to establish fees on development in such
areas to pay for the transportation system improvements located in or
benefitting such areas; and
WHEREAS, the City Council has deemed it appropriate to previously
establish, by Resolution No. 89-165, two Transportation System
Improvement Program ("TSIP") Areas in Tustin, hereinafter referred to as
TSIP Area "A" and TSIP Area "B" which are identified in Exhibit "A"
attached hereto and incorporated herein by reference, as distinct TSIP
Areas and to establish transportation system improvement development
fees in each area; and
WHEREAS, the "Santa Ana-Tustin Transportation System Improvement
Program Study- byAustin-Foust Associates, Inc. and Robert Bein, William
Frost & Associates, dated November 25, 1992, was completed% and has
fully studied projected development, identified traffic mitigation
measures and associated improvement costs and developed a fee program to
mitigate traffic impacts generated by development activity within TSIP
Area "a" and Area "B"; and
WHEREAS, the "Santa Ana-Tustin Transportation System Improvement
Program Study", dated November 25, 1992, provided a comprehensive
program listing of transportation improvements to reduce potential
impacts from proposed development in TSIP Areas "A" and "B"; and
WHEREAS, the "Santa Ana-Tustin Transportation System Improvement
Program Study", dated November 25, 1992, shows that over thirty-eight
million dollars ($38,000,000) in public improvements are needed in TSIP
Area "A", including nearly twenty eight million dollars ($28,000,000) in
the City of Santa Aha and over ten million dollars ($10,000,000) in the
City of Tustin; and
WHEREAS, the "Santa Ana-Tustin Transportation System Improvement
Program Study", dated November 25, 1992, shows that nearly forty million
dollars ($40,000,000) .in public improvements are needed in TSIP Area
"B", including over twenty-five million dollars ($25,000,000) in the
City of Santa Ana and nearly fifteen million dollars ($15,000,000) in
the City of Tustin; and
WHEREAS, the Transportation System Improvement. Program will be
applied to all types of development projects including residential,
commercial, office and industrial, subject to certain'limited exceptions
set forth in Section 8101 k. of the Tustin City Code; and
WHEREAS, the use of the fee for transportation system improvements
is reasonably related to all types of development projects because the
ATTACHMENT B
Resolution No. 94-72
Page 2
owners, the occupants and visitors' of all Types of uses will be
benefitted by improved vehicular traffic flow; and
WHEREAS, the need for the public facilities is reasonably related
to all types of development projects because all types of development
projects generate vehicular traffic; and
W~EREAS, the restriction of the use of fees to transportation
system improvements which are located in, or which substantially
benefit, the area of the city from which the fees are derived assures
that the fees derived from any given development project are used to
provide those .transportation improvements which most directly address
the needs created by such development projects; and
W~EREAS, allowing further development within each TSIP Area without
developer contributions toward funding needed circulation improvements
would be injurious to the public safety, health and welfare; and
WHEREAS, TSIP Areas "A" and "B" consisning of that territory
identified in Exhibit "A" were previously established by Resolution No.
92-165.
W~tEREAS, the City Council adopted Resolution 92-153 on December 24
1992 which established permanent Transportation System '-Improvement
Program Development Fees.'
W~EREAS, the second year graduated fee increase that was authorized
by Resolution 92-153 has been determined to place a hardship on
development due to the present economic climate and slowdown in
development
NOW, T~EREFORE, be.it resolved by the City Council of the City of
Tustin as follows:
1. Effective January 1, 1993, and until such time as amended by
future action of the City Council by adoption of a Resolution the fees
to be charged pursuant to Tustin City Code Section 8101 k. for
Transportation System Improvement Program A~eas "A" and "B" are hereby
established as follows:
A. For TSIP Area "A" an amount based upon five dollars and
fifty-three cents ($5.53) per square foot of new or added gross floor
area of construction or improvements which is the subject of a building
permit application for which payment of a fee is requited by Tustin City
Code Section 8101 k.
B. For TSIP Area "B" an amount based upon three dollars and
thirty-one cents ($3.31) per square foot of new or added gross floor
area of construction or improvements which is the subject of a building
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Resolution No. 94-72
Page 3
permit application for which payment of a fee is required by Tustin City
Code Section 8101 k.
2. The purpose and use of the above said fees is set forth in
Section 8101 k. of the Tustin City Code as follows:
"The purpose of a Transportation System Improvement ProHram
Area is to identify and designate those areas where the
transportation system may experience a siHnificant reduction
in the level of service unless corrective measures are
instituted concurrent with increased transportation demands.
Fees collected for buildinH projects and improvements on
properties in Transportation System Improvement ProHramAreas
shall be used to improve the areawide transportation system
within such area, except said fees may be expended for
improvements outside the area when such improvements will
substantially benefit the transportation system within the
area."
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Tustin held on the 20th day of June, 1994.
THOMAS SALTA~LL I
MAYOR
MARY CL~K
CITY "
N/S
N/S lgT
WiS EASTWOOD
N/S 2ND
N/S
FRUIT
N! S
N/S
SEVEN
NJS 20'FH
MAYI~ERRY
T.S.I.P.
BENEFIT AREA
~V~E
LEGEND
S/S
DYER
T.S.I.P. BENEFIT AREA
NORTH SIDE
SOUTH SIDE
WEST SIDE
EAST SIDE
NORTH
~T TO SCALE
T, RANSPORTATION SYSTEM IMPROVEMEN:-i'
PROGRAM (TSIP) BENEFIT AREAS
EXHIBIT A
City of Tustin
RESOLUTION CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
RESOLUTION NO. 94-72
Mary E. Wynn, city Clerk and ex-officio Clerk of the City Council of the
City of Tustin, California, does hereby certify that the whole number of
the members of the City Council is five; that the above and foregoing
resolution was passed and adopted at a regular meeting of the City Council
held on the 20th day of June, 1994, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
Saltarelli, Potts,
None
None
Worley
Doyle, Thomas
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STUDY AREA BOUNDARY
STUDY ARF~ BOUND.~LRY
Figure I
SANTA ANA/TUS-FIN TSIP
STUDY A~qEA
ATTCAHMENT C
¢ i ill
, ,.,.,,i;,~,,,,,,i,
....· .,,.ii:il ..... [ iii
I f IIIiiiiI
NEWPORT- CAMINO pLAZA
ATTACHMENT D
Exhibit A
Vesting Tentative Tract Map
conditions of Approval
Page 12
14914
All applicable Building plan check and permit
to the Conununity Development Department.
fees
E. New development fees to the Community Development
Department.
F. School facilities fee to the Tustin Unified School
District subject to any agreement reached and
executed between the District and the Irvine
Certificate of Fee Exemption filed with the Notice
of Determination and require payment of fees, the
applicant shall deliver to the Community
Development Department, within forty-eight (48)
hours of notification, a cashier's check payable to
the COUNTY CLER3K in the amount of $1,275 (one
'thousand two hundred seventy five dollars) pursuant
to AB 3158, Chapter 1706, Statutes of 1990. If
this fee is imposed, the subject project shall not
be operative, vested or final unless and until the
fee is paid.
(5)
8.2
Prior to recordation of the final map; the subdivider
shall provide executed subdivision/monumentation
agreements and furnish improvement/monumentation bonds as
required by the City Engineer.
GENERAL
(i)
9.1
Within 24 months from tentative map approval, the
Subdivider shall file with appropriate agencies, a final
map prepared in accordance with subdivision requirements
of the Tustin Municipal Come, uhe State Subd]v~sJon Map
Act, and applicable conditions contained herein unless an
exteDs~on is granted pursuant to Section 9335.08 of the
Tustin Municipal Code.
(i)
9.2
Prior to occupancy of any buildings, the Subdivider shall
record a final map in conformance with appropriate
tentative map.
ATTACHMENT E
CUMMINS
&WHITE
L A W y E
2424 S. E. Bristol Street, Suite 300, Newport I~)ach, CA 92660-0757
Telephone (714) 852-1800 Fax (714) 852-8510 Voice Mail (714) 756-9800
October 21, 1994
RECEIVED
0 CT 2 ~ 199~
COMMUNITY DEVELOPMENT
VIA FACSIMILE AND U.S. MAI1,
(714) 832-0825 (714) 835-7787
Mr. William Huston
City Manager
300 Centennial Way
Tustin, California 92680
Lois E. ,1effrey
City Attorney, City of Tustin
Rourke, Woodruff & Spradlin
701 S. Parker Street, Suite 7000
Orange, California 92668
Re.'
Newport Camino Plaza, L.P.; City of Tustin
Our File No: .1315
Dear Mr. Huston and Ms. Jeffrey:
As you know, Newport Camino PlaT~, L.P. ("NCP") has plans to construct a retail center
which is already 100% leased to tenants that will yield over $3 million in sales within the City
of Tusfin (the "City") annually. We have recently been informed of a very harsh and unexpected
fee being imposed upon our client by the that threatens the development of a project which would
greatly benefit the City. The City has notified NCP that it intends to impose TSIP Area "A" fees
upon NCP when NCP pulls permits to develop its multiple lots located at the corner of Newport
and El Camino Real (the "Property"). A careful analysis of the Property's location and the
ordinance und6r which the City seeks to obtain the TSIP fees reveals, however, that'they are not
applicable to the project in question.
NO CONSTRUCTION ON TSIP EFFECTED LOT
Strictly viewing City Counsel Resolution 92-153, and without addressing the legality or
enforceability of the resolution, the due process issue, adequacy of node. e, etc., the resolution
provides that the City will impose a $5.53 per square foot fee on each new square foot of
construction subject to a building permit for properties fronting both sides of Newport Avenue.
The Property consists of eight lots more particularly described on Exhibit "A" (indicated in the
blue boundary). Lot 13, set forth in the red shaded area on Exhibit "A", is the only lot that
fronts Newport Avenue. NCP has no intention of building any structures on Lot 13. NCP
ATTACHMENT F
CUMMINS
WHITE
L A W Y E R $
Mr. William Huston
Lois E. Jeffrey
October 21, 1994
Page 2
should, therefore, not be subject to any TSIP fee since there will be no construction on property
abutting the far side of the Newport Avenue boundary.
NEW TRACT MAP
The City has pressured and ultimately required NCP to submit for recordation a new tract
map that will combine Parcels 13 through 20 into at least one or perhaps two separate lots.
Initially it was unclear to NCP why the City was so adamant that a new tract map combining the
multiple parcels be recorded. It now appears that the City may have been attempting to cause
the development to fall within the requirements of the TSIP in order to obtain the approximately
$100,000 in fees that would otherwise not be obtainable. Regardless of whether this was an
intentional act to obtain additional fees or whether such a result would merely have been an
unfortunate side effect of the City's desire to combine the multiple parcels, the fees are still
inappropriately tied to the new tract map. The new tract map will not be recorded for several
months at the very least. NCP intends to pull permits on its development project, if ever, within
thirty days. The code and the traditional enforcement of these fees appears to have been to
require payment upon issuance of building permits. There is no basis for the City to look to an
unrecorded tract map to determine fees when the existing legal descriptions of the Property are
substantially different. The City must look to the existing legal descriptions of the parcels and
cannot rely on a tract map that may or may not be recorded and is certainly not in final form.
MAXIMUM LIABILITY FOR FEES
Even if the City planners could somehow justify the position that they~were entitled to
rely upon an unrecorded tract map because it would probably be filed with the City at some time
in the future, all that NCP needs to do is to modify the shape of the proposed Lot 2 (set forth
in Exhibit 'A~ shaded in yellow) to include all of the original Lot 13. The only new
construction in the proposed LOt 2 would then be the 900 square foot Rally's Hamburger site,
which would yield the City approximately $5,000.00 in TSIP fees. Although this method would
allow NCP to avoid the imposition of the majority of the inappropriately assessed fees, it seems
like a great deal of work for both the City and NCP to accomplish a goal that can be achieved
in a much more amicable manner.
CLIMMIN
C WH
~ L ^ W Y E R £
Mr. William Huston
Lois E. Jeffrey
October 21, 1994
Page 3
RESOLUTION
If there is a mechanism to decide this issue without bringing it before the Council we
would certainly like to pursue that avenue. As we informed you in our earlier discussions, this
project is of marginal economic viability to NCP. It is our understanding that NCP will not be
able to break ground on this project if it is forced to pay these approximately $100,000 in
additional and unwarranted fees. It remains our understanding, however, that the City Council
and the NCP panners desire to complete this project. Unfortunately, this issue must be resolved
within the next twenty days because PetCo has established a drop-dead date in the spring of
1995, by which it must be able to occupy the completed premises. If NCP is not able to break
ground by mid November, 1994, it probably will not be able to meet the deadline set by PetCo
and, therefore, will have no economic incentive to build the project.
We look forward to working with you to resolve this issue or, if it extends beyond the
realm of legal interpretation, we look forward to your support in presenting this issue to the City
Council.
Please contact us after you have had an opportunity to consider these points.
Very truly yours,
Patrick R. Boyd
for the firm of
CUMMINS & WHITE
PRB/dds
cc: Mr. Frank Greinke
Fred M. Whitaker, Esq.
Mr. Jay Jaeger
Mr. Greg Bennett
[l~l$l194931flhOl!.wpdI
Exhibit C
~-~dditional Comments and Corrections
E 14914, CUP 94-003, DR 94-005
March 15, 1994
Page 27
remediation system to date, and will be used to determine
what future activities will be required.
These requirements were discussed with Don Greinke
several months ago. However, OCHCA has yet to receive
the report for the recent sampling or a plan which
details any proposed cha~esto the corrective actions being
conducted.
FEES
(c)
Prior to issuance of any building permits payment shall
be made of all required fees including:
a. Major thoroughfare and bridge fees to Tustin Public
Works Department.
b. Orange County Sanitation District No. 7 sewer
connection fee.
Ail applicable building, grading and private
improvement plan check and permit fees to the
Community Development Department.
New development fees to the Community Development
Department.
e. School facilities fee to the Tustin Unified School
District subject to any agreement reached and
executed between the District and the Irvine
Company or proof of a release from payment of any
f. Transportation System Improvement Program, Benefit
Area "A" fees. ~
g. Within forty-eight (48) hours of approval of the
subject project, the applicant snell deliver to the
Community Development Oepartment, a cashier's check
payable to the COUNTY CLERK in the amount cf $25.00
(twenty-five dollars) pursuant to AB 3158, Chapmer
170S, Statutes of 1990, enable the City to file the
Notice of Determination required under Public
Resources Code Section 21151 and 14 Cal. Code of
Regulations 15094. If within such forty-eight (48)
hour period that the applicant has not delivered to
the Community Development Department the above-
noted check, the approval for the project granted
ATTACHMENT G
Exhibit A - Additional Comments and Corrections
TT 14914
May 11, 1994
Page 17
(c) 3.
(C) 4.
FEES
(c)
A workplan for all modifications to the remediation
system at the subject site must be submitted to and
approved by the OCHCA.
The OCHCA is also waiting for a report on the findings of
the most recent soil samples collected. These findings
will allow us to evaluate the effectiveness of the
remediation system to date, and will be used to determine
what future activities will be required.
These requirements were discussed with Don Greinke
several months ago. However, OCHCA has yet to receive
the report for the recent sampling or a plan which
details any proposed cha~$to the corrective actions being
conducted.
Prior to issuance of any building permits payment shall
be made of all required fees including:
Major thoroughfare and bridge fees to Tustin Public
Works Department.
b. Orange County Sanitation District No. 7 sewer
connection fee.
Ce
Ail applicable building, grading and private
improvement plan check and permit fees to the
Community Development Department.
d. New development fees to the Community Development
Department.
e. School facilities fee to the Tustin Unified School
District subject to any agreement reached and
executed between the District and the Irvine
Company or proof of a release from payment of any
__ fee.._____ ~11
~ f. Transportation System Improvement Program, Benefit ~~