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HomeMy WebLinkAboutSPCC Minutes 1988-06-27SRCC MINUTES (Special) 6/27/88 Page 1 IN THE SAN RAFAEL PUBLIC LIBRARY, WEBB ROOM OF THE CITY OF SAN RAFAEL, MONDAY, JUNE 27, 1988, AT 6:45 P.M. SPECIAL MEETING: Present: Lawrence E. Mulryan, Mayor San Rafael City Council Albert J. Boro, Councilmember Dorothy L. Breiner, Councilmember Gary R. Frugoli, Councilmember Joan Thayer, Councilmember Absent: None Also Present: Pamela J. Nicolai, City Manager; Gary T. Ragghianti, City Attorney; Jeanne M. Leoncini, City Clerk RE: SEASTRAND SUBDIVISION, PARCEL "B" - File 5-1-242 x 9-3-16 City Attorney Ragghianti stated as a result of his research, he concluded it would not be appropriate to record a Notice of Violation against Parcel B for the reason stated in his opinion, indicating his opinion has been made available to Terrel Mason, Attorney representing the Seastrand Home- owners' Association and to Attorney Cecelia Bridges who represents the Applicant. Concerning certain sections of the Subdivision Map Act, he stated he had difficulty reconciling the language contained in the Statute of Limitations in the public hearing process leading to recordation of the Final Subdivi- sion Map with permitting recordation of a Notice of Violation against this property. He indicated it is his opinion that the Statute of Limita- tions is applicable to local agencies, and that bars the City as well as another person or persons from attacking, at this date, the legality of the subdivision as result of the map recorded in 1979. He stated this was his best judgment as to what he believes should happen. He concluded by stating regardless of the action that the City takes, the Seastrand Homeowners' Association could bring a cause of action against the City seeking to compel it to record a Notice of Violation; and the owner of the property could bring a cause of action against the City seeking to order the City to issue a building permit. He stated there are no cases he could find that interpret the exceptions, and he did check with others who practice Land Use law, noting again this is his best opinion on the subject. In response to Mayor Mulryan's question as to what would happen if the City does not decide to file a Notice of Violation, Mr. Ragghianti specu- lated that the property owner would seek to have a building permit issued and the Homeowners' Association would be put to the test as to whether they wish to litigate the matter, noting more than likely they would file a complaint seeking a temporary restraining order and/or a preliminary injunction to prohibit the City from issuing a building permit until the Court rendered its opinion on this issue. Mayor Mulryan stated he assumed in such a lawsuit, what would be tested would be the apparent inconsistency of the law that says on one hand, that the Final Map and the Tentative Map have to be consistent or the same, and the fact in this case, it is not. Attorney Ragghianti agreed with Mayor Mulryan but added in his opinion, there is no question that the Final Map varied from the Tentative Map, stating this is not an issue. The issue is whether or not in 1988 the subdivision may be subject of notice which suggests it is illegal in view of provisions of the Statute of Limitations. He stated that the Statute definition of person in the Government Code, includes a Municipal Corpora- tion, and the fact that it is his belief that to record a Notice of Viola- tion under Section 499.36, (66499.36) one has to have not gone through a local agency's public hearing process resulting in a decision in order to do it. He stated they would be testing that as well as his opinion. Attorney Terrel Mason, representing the Seastrand Homeowners' Association stated he reviewed City Attorney Ragghianti's opinion and surmised that he has a contrary opinion. He stated unfortunately there is very little case law in this area that can help anyone with this particular issue. SRCC MINUTES (Special) 6/27/88 Page 1 rd SRCC MINUTES (Speci,_) 6/27/88 Page 2 Mr. Mason stated what is being dealt with is, in his opinion, whether or not the City would be precluded or barred from taking some action such as they have requested, filing a Notice of Violation, when it is determined there is a violation of the Subdivision Map Act that the Final Map is not in compliance with the Subdivision Map. The Section in question is 66499.37 of the Government Code, which provides for a 90 day Statute of Limitations which speaks to "any persons", and whether the context of that Statute is applying to a Civil proceeding filed in Superior Court in California and refers to Service of Summons. He noted nowhere in that Statute is there any language that would refer to the legislative body, such as the City Council, to prevent the City Council from taking action under the Notice of Violation procedures. There is no language that prevents the City Council from acting under Administra- tive procedures. Mr. Mason noted the Statute of Limitations procedure applies specifically to a Civil Proceeding and this is not a Civil Proceed- ing in the vein of a judicial action. He concluded this Section applies to third parties such as property owners, the subdivider or interested property owners, such as the Homeowners' Association who would be precluded from attacking the Final Map at this point, adding there is no doubt that the Statute of Limitations has run to actually attack the validity of the Map, but he believed the Statute does not apply to the City's ability to correct a mistake, whether it is a mistake of fact, mistake of law; whether there was a situation that was negligent or overlooked. Mr. Mason stated another Section not addressed in Attorney Ragghianti's opinion but has been discussed is the Government Code section dealing with Certificates of Compliance. He noted if the property owner did seek a Certificate of Compliance to remedy the problem, the City then would be faced with determining whether or not certain conditions could be placed on the property. He indicated what could happen is that the City could, in fact, grant a Conditional Certificate of Compliance which could place conditions on that property as of the date the current property owner acquired the property. He stated this is the condition that was placed on the Tentative Map, i.e., private recreational space. Mayor Mulryan stated he did not see any real equity in having this property be used in any way other than for recreational open space already in the record, noting this clearly is a mistake made by the City about 10 years ago and that he did not know why it happened. He indicated the City could condemn the property and in each case the City would have to buy it. He asked if what Mr. Mason said earlier would in effect be a "taking"? Mr. Mason stated it would not be a "taking" because under the Government Code procedures for "granting" a Conditional Certificate of Compliance it would place conditions on the property as a debate, and this would not constitute a "taking" under that section; it would be under municipal police powers. Mr. Mason stated when the homeowners purchased their property, they thought the property in question would be open space. He indicated that a mistake was made, they do not know how it happened, that there is an opportunity at this point and time to correct the mistake by virtue of using the Notice of Violation Procedure, and at that time, the City could determine whether or not the restrictions could be placed on the property as originally intended. He stated to do otherwise would place the burden on the homeowners to then file suit to compel what the City can do and should have done on its own. He indicated there would probably be other separate lawsuits against the respective sellers. Mrs. Gail Reid of Seastrand Homeowners' Association presented a petition to Council asking the City to delay any decision on the building permit until there has been an independent investigation of the history of the rezoning of the parcel, because the current would-be developer was formerly employed in the planning capacity by the City at the time the questionable zoning change occurred and undoubtedly still may have connections to the office. She urged the Council to protect the residents' property values and plant and animal life by purchasing the property with funds available under the newly approved State Bond Measure or the 5 million dollars avail- able from the State for open space. Attorney Sarah Boyle, appearing on behalf of one of the homeowners stated she does not agree with the Statute of Limitations as it applies to a ministerial act. She indicated a ministerial act would be a rubber stamp SRCC MINUTES (Special0 6/27/88 Page 2 SRCC MINUTES (Special) 6/27/88 Page 3 of the Tentative Map and stated this was not the case. She said there is a Tentative Map and Final Map that do not conform with no explanation other than scattered heresay, no record, two people involved that may or may not have acted improperly. She stated there is a case that defines a ministerial act as opposed to a discretionary act, noting if it is minis- terial, the Statute of Limitations would apply; if it is not ministerial, the 90 days Statute did not apply. Mr. Sandy Greenblat, 5 Bay Way at Seastrand stated when he bought his property he understood that the Subdivision Map was truly in place and indicated he is presently involved in litigation because he has a clouded title he became aware of as a result of a lot line dispute with a neighbor. Through his investigations, he found five dedications contained in the original Subdivision application that were never dedicated to the City and indicated the City did not follow through to make sure the dedication was made. There was no granting or acceptance in order for a dedication to be legal, and as a result those five dedications including the one being dealt with tonight disappeared. He stated the exposure of the City is broader than this one parcel. Attorney Cecelia Bridges, representing Mr. Len Nibbi, stated she believed the Statute of Limitations, 499.37 does not apply to the section of the Government Code which allows one to file a Notice of Violation. The Notice of Violation procedure is to be followed where there is no legal subdivision and there have been no public decisions made. When no public decisions have been made, you cannot have a time to start the running of the Statute of Limitations and that is why the Notice of Violation procedure is set up like it is. She indicated they are not saying that the Statute of Limita- tions prohibits you from filing a Notice of Violation but believes the City Attorney is saying that the Notice of Violation procedure is not appropriate here because the procedure that was followed appropriately under the Subdivision Map Act, was to have a decision made by a public body. She stated the Notice of Violation is not proper because Council went through the public process and rendered a decision. Ms. Bridges called attention to sub -section "D" of Section 499.35, Certifi- cate of Compliance, stating it says a Final Map is a Certificate of Compli- ance and noted it is her position that that statement says, you cannot buy a Certificate of Compliance, (and) add conditions that were not part of the Final Map. Therefore you cannot at the point of issuing a Certificate of Compliance, add conditions that were not part of the Final Map. Ms. Bridges disagreed with statements made on ministerial acts and discre- tionary acts. To clear the record, Ms. Bridges referred to some statements made concerning Mr. Nibbi which implied there may have been some impropriety because he was at one time an employee of the City. She stated Mr. Nibbi was not employed with the City when the Tentative Map or Final Map were acted on. In response to Councilmember Thayer's comment as to the validity of a decision made by the Council if it was based upon erroneous information that the Final Map was in compliance with the Tentative Map, City Attorney Ragghianti stated under the Subdivision Map Act, in cases which have been decided interpreting this provision, the recordation of the Final Subdivi- sion Map is a purely ministerial act. When a Final Map is presented to a legislative body of a local agency and the City Engineer "certificates" that it is in substantial compliance with the Tentative Subdivision Map, it removes all discretion from the legislative body. The function of the legislative body is not to determine whether the map meets the test or not; that is the function of the City Engineer and that is what case law so states. Once the Engineer "certificates", the map is recorded. He noted it is for that reason the matter appeared on the Consent Calendar, but also appeared with the recommendation indicating that it should be approved. He noted it was a decision based on erroneous information and he did not want anyone to think that he was agreeing that that was not the case. But, the problem they are running into is addressed on page four in his memo to the Council stating he agreed there is no Statute of Limitations applicable to the recordation of the Notice of Violation. He then stated he believes that Section of the Map Act only applies to divisions of real property which have not gone through a public process leading to a Court decision of a local agency. He pointed out to Council that Section 499.37 specifies the Statute of Limitations not only talks SRCC MINUTES (Special) 6/27/88 page 3 SRCC MINUTES (Specs }) 6/27/88 Page 4 about decisions that Councils make but talks about any of the proceedings or any of the acts done or made prior to the decision. Mr. Ragghianti stated in his opinion, it encompasses the determination by the Engineer that the Final Map was in substantial conformity with the Tentative Map. He stated it would not be appropriate for the Notice of Intention to Record a Notice of Violation to be recorded. Councilmember Breiner stated the City Engineer at that time was Mr. Ely Caillouette and suggested that Mr. Caillouette be present at the meeting when this item is agendized. Mayor Mulryan stated another idea would be to file a Notice of Violation and test it. Councilmember Frugoli noted that in 1982, the Planning Department stated before most people bought their properties, that there is one legal lot, possibly two in the area, and staff recommended that one building site be permitted. He indicated at that time the City could have stopped the process and noted the City is basically at fault. He suggested the City purchase the property as open space and enter into an agreement with possibly the landowner, Innisfree and agents who sold the properties to the people, including the City, and make a compromise with all putting up some money to make it open space. Councilmember Boro referred to a note Mr. Dominic Selmi wrote in which he states the property was never dedicated because of complaints from the neighbors. City Attorney Ragghianti stated Mr. Selmi was working for Mr. (Dan) Coleman, who is now deceased, and it was Mr. Selmi who prepared the maps. He noted he questioned Mr. Selmi and sent him copies of all documents the City had and asked him for his recollection. In a telephone conversation, Mr. Selmi's recollection of events that occurred were as stated in his memo, namely that the developer intended to offer Parcel "B" for dedication and that the City did not want it. A revised map was then presented which showed a private recreation area and the neighbors on the other side, Marina Vista, on Seaway, objected to the construction of any private recre- ational facilities; swimming pool, tennis courts,etc., therefore they changed the map. Mr. Ragghianti stated he had no idea why the note is dated 1982; the Final Map was recorded in January 1979, and added he did not know what prompted Mr. Selmi to make the telephone call nor why the City Clerk recorded it. He stated reference is made in the note to a woman who worked with the Bank of America and that it may have something to do with financing. Mayor Mulryan indicated the lawsuit is the only way to test this; however if they could bring in the people who were involved at that time that would be a good idea. Mr. Ragghianti stated that Council has the right to record a Notice of Intention to Record Notice of Violation, regardless of his opinion, unless Council were to continue this matter and have staff ask Messrs. Caillouette and Selmi to appear before the Council, noting they have no obligation to do so. He indicated either way the Council decides, they may be sued. Mr. Ragghianti stated if Council records the Notice of Violation, they are limited to the Subdivision Map Act. Councilmember Breiner moved and Councilmember Thayer seconded, to continue this matter to July 18, 1988 meeting and direct the Building Department not to process any building permits on this site until that time, with staff to invite Mr. Caillouette and Mr. Selmi to attend the Council meeting. AYES: COUNCILMEMBERS: Boro, Breiner, Frugoli, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None There being no further business on this subject, the meeting was adjourned. JEANNE LEONCINI, Citi Clerk APPROVED THIS DAY OF MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Special) 6/27/88 Page 4