Chapter 12.10 STREET RIGHTS-OF-WAY AND IMPROVEMENTS

This chapter may be referred to and cited as the “street rights-of-way and improvement ordinance” of the city of Fremont. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3100.)

12.10.020 Findings of city council.

(a) Power and General Purpose. This chapter is enacted by the city council pursuant to California Constitution Article XI, Section 7, granting the power to a city to make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws. Pursuant to said power the standards, specific requirements, procedures and other regulations and provisions set forth in this chapter are enacted for the general purpose of providing reasonable measures calculated to promote the economic welfare, public convenience, and general prosperity of the community of the city of Fremont in order to achieve the specific intent and purposes of this chapter.

(b) Specific Intent and Purposes. In enacting this chapter, including amendments thereto, the city council hereby makes the following findings:

Prior to the establishment of the municipal corporation of the city of Fremont on January 24, 1956, the area incorporated was comprised largely of agricultural and orchard lands, and the streets existing at the time of incorporation were adequate for the needs of an agricultural area and of the city at that time. However, since incorporation, this city has experienced explosive increases in population and land development and use for high activity purposes other than agricultural. The direct result of such increases has been and is to rapidly render the previously existing streets inadequate in width and improvement and inadequate in their location and in the amount of street mileage provided, so as to provide minimum acceptable service capacity to the lands being used. The indirect result of such increases has been and is to increasingly tend to deny to the public streets of minimum standards for safe and convenient vehicular and pedestrian access and travel between many points within and without the city.

Unless measures are taken to prevent and overcome such results by providing for the orderly and systematic increase in width, capacity and improvement of existing and new streets when and as the use of land takes place, the citizens of this city will suffer a condition of blight with pernicious effect upon the economic welfare, public convenience and public safety and general prosperity of the community.

Therefore, pursuant to the foregoing findings, the standards, specific requirements, procedures and other regulations and provisions of this chapter are specifically intended to accomplish the following specific purposes, all of which relate to the acquisition of right-of-way and the construction of street improvements in connection with the use of individual lots of land:

(1) To cause the acquisition of rights-of-way and the construction of street improvements necessary to properly serve the lot used, at the time or proximate time of the commencement of the lot use, or as soon thereafter as is reasonable, so that the benefiting lot may enjoy the use of such improvements throughout the normal life thereof, and so that such improvements are not indefinitely deferred to the detriment of the public interest, safety and welfare.

(2) To ensure conformity to the Subdivision Map Act and to Title 17 (Subdivision Ordinance), and to supplement and extend the basic requirements thereunder to apply to the use of individual lots of land as to which no subdivision or other division of land is involved.

(3) To supplement Title 18 (Zoning Ordinance) with the specific objectives of assuring that a lot, as defined in this chapter, is or will become a “lot” as defined in the zoning ordinance, and to further assure that the use of every lot is compatible with adjacent lots and neighboring areas and that such use will not unduly affect other persons or land or the general public.

(4) To spread the costs of required rights-of-way and street improvements for streets upon lots in accordance with constitutional and statutory requirements and limitations.

(5) To protect the vested interest of the public in the capacity of the streets preexisting the incorporation of the city or preexisting the use of lots.

(6) To provide standards and procedures for participation by lot users in the widening, opening and improvement of preexisting and new streets when the same becomes necessary by reason of the use of such lots.

(7) To preclude the dissipation or improper expenditure of the city’s general operating and maintenance funds for the acquisition of right-of-way and for the construction and maintenance of street improvements or for the maintenance of faulty or substandard streets.

(8) To protect the public safety, living standards and common welfare of the general public.

(c) Uniform Standards. The provisions of this chapter provide standards expressly set forth or incorporated by reference therein, to enable the city and a lot user to determine both the primary specific requirements of this chapter for right-of-way and street improvements and also to determine other secondary requirements, procedures and regulations of this chapter, which are required as a condition to the use of any particular lot subject to the application of the provisions of this chapter.

Said standards have been developed to be and shall be applied by the city to determine said requirements on as uniform basis as possible as to any lot subject to the application of the provisions of this chapter, taking into consideration the particular location and use of any such lot and the street or streets abutting or crossing such lot. As an example, the application of said standards relating to rights-of-way and certain specific street improvement facilities such as vehicular paving, curbs, gutters, pedestrian sidewalks, storm drains, and public utilities will generally result in determinations that such right-of-way and street improvement facilities are required on an equal basis and to the same extent as to each adjacent lot contiguous to the same street abutting each of the adjacent lots, dependent on the extent of street frontage of each such lot and the particular use of the lot. As a further example, the application of said standards relating to certain other specific street improvement facilities, such as street lights and fire hydrants, may often result in determinations that such facilities shall be required as to one particular lot but have not been and may not be required as to an adjacent lot or lots, and notwithstanding that such adjacent lot or lots, or other lots in the vicinity, may be benefited by such facilities. Such examples described as aforesaid, and other examples of the application of said standards not set forth herein, demonstrate that the uniform application of said uniform standards is dependent upon the particular size, shape, location, street frontage and use of a particular lot which is located upon a particular street or streets abutting or crossing the lot, but that insofar as such factors are common as to two or more lots, said standards shall be applied equally to each of such lots.

Standards for special arrangements and variances are also provided pursuant to procedures and regulations set forth in this chapter, to determine the primary requirements for right-of-way and street improvements when the usual application of the standards determining such primary requirements to a particular lot and street abutting or crossing such lot makes an adjustment, modification or waiver of any specific requirement determined pursuant to such usual application desirable or necessary. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3101.)

12.10.030 Definitions.

(a) Special Definitions. Unless it is plainly evident from the context that a different meaning is intended, certain terms used in this chapter are defined as follows:

“Lot” means a unit or contiguous units of real property in common ownership, each unit being shown as a separate parcel upon the latest equalized county assessment roll (or which will be shown on next year’s roll as a unit as the result of a subdivision or other division of land) and which is (or will be) capable of being legally conveyed without any requirement (or further requirement) for a subdivision or other division of land approval by the city.

“Lot user” means any person engaged in a use of a lot (as occupying owner or tenant) or any person engaged in the development of a use of a lot (as the intended occupant, or as the owner, lessor, subdivider or other developer for a prospective or intended occupant), except a public agency exempt under law from the requirements of this chapter.

“Right-of-way” means real property, dedicated to or otherwise acquired by the city for the benefit of the public and owned in fee, easement or other title, used for or planned to be used for the primary purpose of vehicular and/or pedestrian travel as a street with such incidents as are appurtenant or necessary for reasonable enjoyment thereof, including the construction and maintenance of street improvements thereon, and including secondary rights of use for public services and utilities ordinarily appurtenant to public streets, such as sewers, drains, pipes for gas, water, communications and power lines, wires and poles, and other usual public purposes.

The term “right-of-way” also means any real property, title to or use of which is limited to a designated special primary purpose such as for a pedestrian pathway or walkway or equestrian or bicycle path or lane when located and described separately from a right-of-way as defined above.

When the application of or content of or express language of any provision of this chapter requires, the term “right-of-way” means a right-of-way, or any portion of a right-of-way, which is officially established as a planned right-of-way or which is a necessary incident to a street, or any portion of a street, officially established by the city as a street, or portion of a street, which is planned to be publicly maintained and open to use of the public.

“Street” means any public street, avenue, road, parkway, boulevard, thoroughfare, highway, square, crossing, intersection, lane, alley, court, or any other public place or way of whatever nature, located within a right-of-way, publicly maintained and open to use of the public for the primary purposes of vehicular and/or pedestrian travel, and including vehicular pavement, sidewalks and all other street improvements constructed within such right-of-way which have been accepted into the public street system of the city.

The term “street” also means a public place or way publicly maintained and open to the use of the public for such primary purposes as a pedestrian pathway or walkway or equestrian or bicycle path or lane or other designated special purposes, located within a right-of-way limited to such a designated purpose.

When the application of or context of or express language of any provision of this chapter requires, the term “street” means a street, or any portion of a street, officially established by the city as a street or as a portion of a street which is planned to be publicly maintained and open to the use of the public, but which planned street or portion of a planned street has not had the full extent of street improvements constructed within the entire dimensions thereof and in accordance with the standards prescribed therefor, and accepted into the public street system of the city.

Street – “Abutting” or “Crossing” a Lot.

(1) A street or portion of a street “abuts” or is “abutting” a lot where any point or part of one side line of the right-of-way of such street is contiguous to or extends into the lot and thus creates a street lot line (identical in location to said side line of the right-of-way) and the other side line of said right-of-way is not also contiguous to or extended into the lot (but such other side line usually being contiguous to or extending into another lot or lots across the street) a line drawn from each corner of the lot, formed at the intersection of each side lot line and the street lot line of the lot, extended across to the centerline of the right-of-way (at a right angle with the street lot line), together with the centerline of the right-of-way and the street lot line, define the extent of the boundaries of the street which “abuts” or is “abutting” the lot.

(2) A street “crosses” or is “crossing” a lot where any point or part of both side lines of the right-of-way of such street are contiguous to or extend into the lot and thus creates a street lot line on each side of such right-of-way; a line drawn across the street at each of the two ends of the right-of-way to connect the corners of the lot on each side of the right-of-way, together with the street lot lines, define the extent of the boundaries of the street which “crosses” or is “crossing” the lot (such contiguity of the lot to both sides of the right-of-way usually or potentially creating a division of the lot into two or more lots, at least for the purpose or availability of separate use).

Said primary definitions of a street “abutting” or “crossing” a lot are supplemented by the following special definitions therefor, notwithstanding any provision to the contrary therein:

(3) The boundaries of each street abutting or crossing a corner lot include the quadrant or quadrants of street intersections, extended from any street abutting or crossing a corner lot as defined pursuant to subsection (1) or (2) of this definition.

(4) A frontage road, which is a street separating a lot from another (main arterial) street or another facility or real property which is not a lot available for a lot use, such as a flood control easement or railroad, shall be deemed to be a street crossing such lot notwithstanding that a point or part of only one side line of the right-of-way of the frontage road may be contiguous to or extend into such lot; and such arterial street, if there is one, shall be deemed to be a street abutting the lot where any point or part of the right-of-way thereof is contiguous to the frontage road notwithstanding that no point or part of such arterial street is contiguous to or extends into the lot; provided, that if any point or part of both side lines of the right-of-way of an arterial street, if there is one, is contiguous to or extend into a lot, such arterial street is (as well as the frontage road, as a consequence following therefrom), pursuant to said definitions in subsections (1) and (2) of this definition, a street crossing the lot.

(5) Transitional vehicular paving required pursuant to this chapter extending from and beyond the terminus or termini of a street abutting or crossing a lot shall be deemed to be included within the boundaries of any such street.

Said primary and special definitions are supplemented by the following explanations of the results therefrom:

(6) A street abutting a lot contains one-half of the total width of the right-of-way of a street and a street crossing a lot contains the full width of the right-of-way of a street.

(7) As the result of the application of said definitions to a particular street and lot, the amount of the area of the right-of-way of the street included within the unit or units of real property defining the lot depends upon the width prescribed for the right-of-way of such street, and the extent to which such right-of-way extends into the lot (except as provided in subsection (4) of this definition), and, therefore, the amount of the area is, in connection with a street abutting the lot, generally equal to either all the area of the right-of-way of an abutting street (as when the centerline of the right-of-way is located upon a common lot line of two or more lots so as to result in the full extent of the width of the right-of-way of the street being divided equally upon such common lot line), or less than all of said area (as when the centerline of the right-of-way is located upon the lot), or more than all of said area (as when the centerline of the right-of-way is located upon one or more other lots) the entire area of the full extent of the right-of-way of a street or portion of a street crossing a lot is included within the lot in every case (except as provided in subsection (4) of this definition).

(8) Also, as the result of the application of said definitions to a particular street and lot, a street lot line created by a side line of a street abutting or crossing a lot may be located parallel to the preexisting lot line contiguous to (in which case the preexisting lot line would be identical to the side line of the street and the street lot line created thereby) or extending into the lot, or may be located at a differing or varying angle to the preexisting lot line.

(9) In addition, a particular lot may be of such shape, size and so located in relation to adjacent lots, other lots across the street, to street intersections, and other crossings, that one or more portions of the street may abut the lot and one or more portions of the same street may cross the lot.

“Street improvements” means vehicular roadway pavement, pedestrian sidewalk, street lighting, curbs, gutters, rain and storm water drainage facilities, street medians, street trees and landscaping, utilities, and such other improvement facilities ordinarily appurtenant to the use of streets and the right-of-way in which constructed, and improvements for pedestrian, equestrian or bicycle path, trail or lane, or other special purpose improvements, when prescribed for a designated street.

“Use” means the occupation of a lot by a lot user for a commercial, industrial, residential, public or quasi-public or any other purpose which results in continuous or regular vehicular and/or pedestrian ingress and egress, directly or indirectly, to and from such lot and the public street system. The term “use” is not dependent on the fact of whether or not any building or other improvement is to be used or constructed to be used in connection with such occupation, or whether or not any building, site plan, occupancy, grading, conditional use, zoning, subdivision, parcel map, or other permit, license or approval is required as a condition to such occupation and use pursuant to other provisions of this code or other laws.

(b) Other Definitions. Certain other terms used in this chapter are specifically defined in Title 17 (Subdivision Ordinance) and Title 18 (Zoning Ordinance) and other provisions of this code, and unless it is plainly evident from the context of any provision of this chapter that a different meaning is intended, the definitions or terms contained in said subdivision ordinance and zoning ordinance are incorporated herein by this reference. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3102.)

12.10.040 Application of chapter to use of a lot.

(a) Compliance with Chapter Required as Condition to Use of Lot. No person shall use a lot unless each and every street abutting and crossing such lot conforms with the standards and requirements of right-of-way width and street improvements prescribed in this chapter for each such street, or unless such or another person has complied with the provisions of this chapter assuring that each and every street abutting and crossing such lot will conform with the standards and requirements of right-of-way width and street improvements prescribed in this chapter for each such street and determined to apply to such lot and each such street.

(b) Existence of Streets Abutting or Crossing Neighboring Lots. Unless a rezoning application or an application for a conditional use permit has been denied for such reason, no lot user shall be prejudiced, in connection with any use which is lawful under the appropriate zoning regulations, for the sole reason that adjacent or other neighboring lots are not in use or a street of the standards of right-of-way width or street improvement, as prescribed in this chapter, does not abut or cross such neighboring lots. Such lot user will be in compliance with the requirements of this chapter by causing any street or streets abutting or crossing his/her lot to conform with such requirements or assuring that any such street or streets will conform with such requirements.

(c) Off-Site Streets. Notwithstanding subsections (a) and (b) of this section, when a lot user is required pursuant to Section 12.10.090 to provide right-of-way and to construct street improvements upon and within a street which does not abut or cross the lot to be used by the lot user, no person shall use said lot unless such street conforms with said requirement. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3103.)

12.10.050 Application of chapter to established streets.

The provisions of this chapter relating to right-of-way and street improvements, required as a condition to the use of a lot, apply to streets established by the general plan or a specific plan or other official action of the city which determines generally or specifically the location, alignment, width and design of streets.

Any such established street may be either a street established by action of the city council prior to and independent of considerations concerning the application of the requirements of this chapter to a particular lot, or a street which, in connection with the application of the provisions of this chapter to a particular lot, is determined by the public works director, and established by action of the planning commission or city council, to be necessary to serve the lot and for the coordination of the layout of streets for the proper future use of adjacent lots and the maintenance and development of the public street system of the city. Provided, that in an area where existing streets and/or streets established by such action of the city council or planning commission, the major streets and other principal components of the public street system for such area have been determined, the public works director may establish an extension of any existing major street and may establish new collector or other minor streets in such area necessary to serve a particular lot and for the proper coordination of the layout of streets in such area for the proper future use of adjacent lots and the maintenance and development of the public street system of the city; the location and alignment of any such street shall be, to the extent reasonably possible and subject to the foregoing standards, established upon common lot lines of two or more lots so that the width of the right-of-way of such street is divided equally between such lots.

Streets established by said official action provide the primary standard upon which specific standards and requirements of right-of-way and street improvements are determined to apply to a particular lot and street abutting or crossing such lot pursuant to other provisions of this chapter.

The application of said specific standards to a particular lot, lot use and street may require the full extent of the right-of-way to be provided and the full extent of street improvements to be constructed, within the entire dimensions of each such street, but in other applications a lesser specific standard is prescribed as the maximum requirement. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3104.)

12.10.060 Determination of and compliance with requirements.

(a) Preliminary Estimates. Preliminary or general estimates as to the right-of-way and street improvement requirements which will or are likely to be applied to any street or streets abutting or crossing a particular lot or lots may be made by the city at any time prior to the time a lot user is subject to the application of the provisions of this chapter, in connection with adoption of or amendments to the general plan, specific plans, zoning ordinance, informal inquiries of a lot user, or in connection with other considerations and actions of the city which directly or indirectly affect any such lot or street. Such estimates may be considered by a lot user or the city in connection with making formal estimates and final determinations of such requirements but such preliminary or general estimates shall be not deemed as official determinations of such requirements or be binding or determinative upon a lot user or the city; no appeal or application for a variance may be made on the basis of such estimates and any questions concerning such shall be resolved pursuant to subsections (b) and (c) of this section.

(b) Formal Estimates. A lot user of any lot which has not been caused to conform with the right-of-way and street improvement requirements of this chapter may, at his/her option at any time prior to the time a lot user is subject to the application of the provisions of this chapter, request and receive from the public works director a formal estimate of the requirements which will be applied to such lot. Any such estimate is limited in its reliability and conclusiveness by the degree of certainty of the description of the nature and extent of the lot use and other information submitted to the director in the request. No such formal estimate shall be binding upon a lot user or the city until the public works director has made a final determination of such requirements pursuant to the provisions of this chapter, and until the lot user has complied with the requirements of this chapter, including the provision of right-of-way in satisfaction of the right-of-way requirement and an agreement is entered into by the lot user and city confirming a final determination of the street improvement requirements provided such agreement is performed pursuant to its terms.

(c) Final Determination and Compliance. The right-of-way and street improvement requirements and the procedures required in connection therewith, as set forth in the provisions of this chapter, shall be complied with or assured prior to the commencement of a new use of a lot, including any development phase of such a use, or prior to a date certain established by the public works director, planning commission or city council when the use of a lot subject to the application of the provisions of this chapter is a continuation or expansion or change of an existing use. The public works director shall make a final determination of the right-of-way and street improvement requirements applicable to any such lot in accordance with the provisions of this chapter. The public works director may prescribe forms which may or shall be utilized in connection with the determination and application of the requirements of this chapter to a particular lot.

(d) Procedure When Other Permit or Approval Involved. When a lot user is required to obtain from the city a building permit, or site plan, subdivision or other division of land approval, or other permit or approval, as a condition to the use of a lot, compliance with the provisions of this chapter shall be accomplished in conjunction with the procedures established by the city in connection with applications for such permits and approvals, and no building permit shall be issued and no site plan, subdivision or other division of land shall be given final approval until such compliance has been accomplished.

(e) Procedure When No Other Permit or Approval Required. When there is no such permit or other approval required, the lot user should make, sufficiently in advance of the lot user’s plan for the lot use, whatever oral or written inquiry of the public works director which the lot user deems necessary to ascertain the probable or approximate period of time which will be necessary for the lot user and the city to complete all procedures and accomplish such compliance prior to such commencement of a new lot use or prior to the date certain established by the city when the use is a continuation, expansion or change of an existing use subject to the provisions of this chapter, depending on such factors as the extent of street improvements required, the extent of engineering consultation required, prearrangements between the lot user and his/her engineer, the current workload of the public works director and his/her staff, and whether estimates of the requirements have been made pursuant to subsection (a) or (b) of this section at least 30 calendar days should be anticipated by such a lot user as the period of time necessary for all procedures to be completed and such requirements shall be satisfied prior to the commencement of the new use upon the lot or the date certain established for an existing use. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3105.)

12.10.070 Right-of-way requirement.

(a) Determination of Specific Right-of-Way Required. The standard for determination of the location, alignment and width of the right-of-way specifically required to be provided by a lot user for each street abutting and crossing the lot of such lot user shall be based on the official action of the city in connection with the establishment of such street or streets pursuant to Section 12.10.050. Said standard shall be supplemented by and subject to a precise determination of such location, alignment and width, by the public works director, not inconsistent with such official action, at the time of the application of the provisions of this chapter to the particular lot of the lot user, in accordance with standards established pursuant to the subdivision ordinance for the determination of the location, alignment and width of streets, and standards of local customary engineering practice.

(b) General Requirement for Full Extent of Right-of-Way. Prior to the use of a lot by a lot user subject to the provisions of this chapter, the lot user shall provide to the city legal title to the full extent of the right-of-way within the entire dimensions of each street abutting and each street crossing the lot established pursuant to Section 12.10.050 and subsection (a) of this section, except as provided otherwise in this section.

(c) Limitation on Maximum Requirement. The maximum right-of-way which may be required pursuant to subsection (b) of this section shall be limited to and not exceed 25 percent of the area of a legally created lot. Where the full extent of the right-of-way of the street or streets necessary to be acquired to meet the standards of width prescribed for such street or streets pursuant to subsection (a) of this section does exceed such percentage of area, the public works director shall determine the right-of-way of such street or streets or a portion or portions thereof to be provided by the lot user, not exceeding such percentage of area, most necessary to serve the use of the lot and general public. Provided, that pursuant to the definition of a lot, property being subdivided or otherwise divided, or contiguous units of property under common ownership, is and shall be considered as a single lot.

Such excess right-of-way shall be the responsibility of the city. Unless the city acquires such excess right-of-way from the lot user or the owner or other owners thereof in accordance with a special arrangement made pursuant to Section 12.10.110, or by purchase or condemnation, the side line or lines of the right-of-way for each such street acquired pursuant to said maximum right-of-way required pursuant to said determination of the public works director, and which are not located at the side line or lines of the right-of-way established for such street necessary to be acquired to meet the standards prescribed for such established street, shall constitute valid and legal yard setback and lot lines for the lot; provided, that no buildings or other structures may be constructed within the prescribed right-of-way.

If the city council determines to acquire such excess right-of-way, the time for performance by the lot used for construction of street improvements, otherwise required to be constructed by the lot user pursuant to the provisions of this chapter, within the right-of-way provided pursuant to the maximum requirement of this section, and such excess right-of-way, shall be extended for any period of delay caused to the lot used in constructing such street improvements by reason of failure of the city to promptly obtain title to or sufficient possessory right to such right-of-way from the lot user or owner or other owners.

(d) Buildings Located within Right-of-Way. Where there is any existing building or buildings, conforming to yard setback and other zoning regulations, located within the right-of-way which a lot user is required to provide pursuant to subsections (b) and (c) of this section, the use of that portion of the right-of-way as a street, which is located under any such building, and necessary access thereto, shall be subordinate to the continued use of the building, in the event the lot user intends to continue use of the building without removing the building from such right-of-way, and the lot user is not subject to a requirement to remove the building as a condition of approval attached to a rezoning of the lot or conditional use permit or variance granted pursuant to the zoning ordinance.

It shall be the responsibility of the city to compensate the owner of any such existing building for the removal of such existing buildings, pursuant to a special arrangement made pursuant to Section 12.10.110, or by purchase or condemnation. Provided, that the removal of such buildings may be required as a condition of approval attached to any subsequent rezoning of the lot or conditional use permit or variance granted pursuant to the zoning ordinance, or as a condition to the continuation of the same or different use subject to the reapplication of the provisions of this chapter pursuant to Section 12.10.150.

No improvements to any such existing buildings remaining in the right-of-way subordinate to the continued use of such buildings, and no building or other permits shall be issued therefor, unless the lot user, owner or other owners enters into an agreement with the city, agreeing, in consideration of the occupation of such right-of-way by any such buildings and the issuance of permits therefor, that at such future time as the city acquires such right-of-way free of any subordination thereof to the use of such existing buildings, by purchase or condemnation, in order to construct street improvements therein, that such buildings will be valued in like manner as if the permitted improvements thereto had not been made. The agreement shall also provide that at such future time, the owner of such building will remove such building at no expense to the city. Such agreement shall recite that it runs with the land in order to put prospective or successor lot users, owners and encumbrances of the lot on notice that the lot user, or the owner or other owners of such building executing such agreement and their successors are subject to such agreement relating to the value and removal thereof. Such agreement shall be subject to approval of the city council; provided, that forms for such agreements approved by the city council may be executed by the city manager on behalf of the city. Any such agreement is subject to approval as to form by the city attorney. The city clerk shall file for record in the office of the county recorder any such agreement or memorandum thereof.

No new buildings or other structures shall be allowed to be constructed within any right-of-way required to be provided by a lot user pursuant to this section, or within the right-of-way of any street established pursuant to Section 12.10.050 and subsection (a) of this section.

(e) Unequal Division of Right-of-Way of Street Abutting a Lot. Where by reason of the location and alignment of a street, or portion of a street, the full extent of the width of the right-of-way of the street or any portion of such street, abutting a lot, or the widening of an existing street to its full width, is not divided equally between lots on each side of the street, thereby resulting in less than one-half of the full extent of the width of such right-of-way, or right-of-way widening, being located upon the lot subject to the application of the right-of-way requirement as determined pursuant to subsections (b) and (c) of this section, the following provisions shall govern as to that portion of such right-of-way not included within the lot.

The lot user shall make a cash payment to the city in a sum based on the fair market value of said portion of such right-of-way, determined at and as of the time of the application of the requirements of this chapter to the lot user.

Said fair market value shall be determined in accordance with the following: (1) the fair market value as previously and finally determined and paid by the city pursuant to an eminent domain proceeding brought by the city following the application of this chapter to the other lot or lots on the other side of the street in which said portion of such right-of-way was included but which exceeded the right-of-way requirement of the lot user or lot users of said other lot or lots; or, if such not be applicable (2) the fair market value as determined by special arrangements, if any, made pursuant to Section 12.10.110 between the city and the lot user or lot users of the lot or lots on the other side of the street, owning or who did own such right-of-way in excess of the right-of-way requirements of such lot user or lot users, which arrangement may include provision for such lot user or lot users to reserve such excess right-of-way from lot use or to make an actual transfer of title thereto, and to be compensated therefor by the city; or (3) if no such special arrangement has been made with another lot user or the lot user subject to making the cash payment does not agree with the fair market value as determined thereby, the fair market value shall be determined by the public works director based upon an appraisal of the right-of-way by a qualified real estate appraiser retained by the city; or (4) if the lot users object to the evaluation of such appraisal, the lot user may, at his/her expense, obtain another appraisal of the property by a qualified real estate appraiser approved by the city, which appraisal may be accepted by the public works director if found reasonable; or (5) the fair market value as determined by the public works director based upon the most recent assessed value, modified to equal market value in accordance with current practice of the county assessor where the estimated cash payment to be paid is less than four times the estimated cost of an appraisal prepared by a qualified real estate appraiser; or (6) the fair market value as determined by the city council based on a recommendation of the public works director with the consensus of the lot user in those instances where the amount of the estimated in-lieu payment is less than four times the estimated cost of an appraisal prepared by a qualified real estate appraiser.

The cash payment shall reimburse the city for title acquired by the city pursuant to subsection (e)(1) of this section, or be utilized by the city to acquire title which has not been acquired by the city or to reimburse the city for title transferred to the city to said portion of the right-of-way abutting the lot or lots on the other side of the street in accordance with special arrangements as referred to in subsection (e)(2) of this section, or by purchase of condemnation.

The time for performance by the lot user for constructing street improvements shall be extended for any period of delay caused to the lot user in constructing such street improvements by reason of any failure of the city to promptly obtain title to or sufficient possessory right to such right-of-way so as to enable the lot user to construct such street improvements within any right-of-way obtained pursuant to this subsection.

If there is unequal widening resulting in more than one-half of the full extent of the width of such right-of-way, or the widening of an existing street to its full width, being located upon the lot subject to the application of the right-of-way requirement as determined pursuant to subsections (b) and (c) of this section, the right-of-way obligation of the lot user shall not exceed one-half of the width of the right-of-way, or right-of-way widening, and the right-of-way exceeding such obligation shall be the responsibility of the city on the same basis as provided in subsection (c) of this section.

Rights-of-way acquired after August 5, 1960, at public expense or as dedications to the public will not be considered when determining the amount of right-of-way necessary to widen a street to its full width. Previously acquired right-of-way will be credited to the affected lot when determining the specific right-of-way obligation under this section.

Any reduction in the right-of-way obligation resulting from the exclusion of historical right-of-way acquired prior to August 5, 1960, pursuant to this subsection, shall not affect the street improvement requirement of Section 12.10.080.

(f) Transfer of Title. Title to right-of-way to be provided by a lot user pursuant to this section may be transferred to the city by grant deed, subdivision map dedication or by other means of transfer of real property, and may be an easement or fee title or other interest, sufficient to carry out the purposes of this chapter. Forms for transfer prepared by the city may be utilized.

The lot user shall accomplish any survey or other work necessary to provide sufficient legal descriptions of the right-of-way to be transferred. The public works director shall endeavor to provide lot users with whatever information useful in performing such surveys and other work, and preparing such legal descriptions, which is in possession of the city.

The lot user shall obtain the execution of all owners of the right-of-way required to transfer unencumbered title to the city, and the public works director or the city attorney may require that a commercial title report be obtained at the expense of the lot user to aid in a determination of the persons necessary to execute any document transferring title to right-of-way to the city.

The city manager hereby is authorized to accept on behalf of the city the transfer to the city of title to right-of-way provided by a lot user pursuant to the provisions of this section. No limitations or restrictions upon or exceptions to the title to right-of-way transferred to the city shall be accepted by the city manager unless approved by the city council. No transfer of right-of-way shall be accepted by the city unless approved as to form by the city attorney.

The city clerk shall cause every transfer of title acquired by the city pursuant to this chapter to be filed for record in the office of the county recorder; provided, that conditions affixed by the city to the dedication and transfer of right-of-way by subdivision map, or any other special procedures that may be required in connection with any particular application of the provisions of this chapter, shall be completed prior to such recordation and to such transfer of title. (Ord. 924 § 1, 9-12-72; Ord. 1661 § 1, 5-21-85; amended during 2012 reformat. 1990 Code § 8-3106.)

12.10.080 Street improvement requirement.

(a) Determination of Specific Street Improvement Facilities Required. The standard for determination of the description and design of the street improvements specifically required to be constructed by a lot user upon and within each street abutting and crossing the lot of such lot user established pursuant to Sections 12.10.050 and 12.10.070(a) shall be based on standard details and specifications adopted by the city council for use in connection with the design and construction of streets upon and within rights-of-way, and any special standards prescribed by the city council specifically for the design of any such particular street in connection with the establishment thereof pursuant to Section 12.10.050. Said standard shall be supplemented by standards established pursuant to the subdivision ordinance for the design and improvement of streets, utility entity standards, and standards of local customary engineering practice approved by the public works director. Said determination shall be subject to a final precise determination in connection with the preparation of and approval of construction plans required pursuant to Section 12.10.100.

(b) General Requirement for Full Extent of Street Improvements. The lot user shall construct the full extent of the specifically required street improvement facilities, as determined pursuant to subsection (a) of this section, within the entire dimensions of each street abutting and each street crossing the lot, except as provided otherwise in this section.

Where the full extent of vehicular paving or other specific street improvement facility, required to meet the standards prescribed pursuant to subsection (a) of this section for a particular street abutting or crossing a lot subject to the provisions of this chapter, exceeds the maximum requirement for such vehicular paving or other street improvement facility applicable to such lot as determined pursuant to the provisions of this section, the construction or reconstruction of any such excess street improvements shall be the responsibility of the city, and if the lot user and city do not provide for the construction of such excess street improvements by the lot user in accordance with a special arrangement made pursuant to Section 12.10.110, the city shall provide for the construction of such excess street improvements subject to the available financial resources of the city.

(c) Limitations on Maximum Requirement. Said requirement set forth in subsection (b) of this section to construct the full extent of required street improvements within the entire dimensions of a street is limited or excepted in regard to certain specific street improvement facilities, depending upon particular types of lot uses, or upon the ultimate width prescribed for certain streets, as follows:

(1) Vehicular Paving. The maximum width of the paving requirement for any street abutting a lot shall not exceed 45 feet (the half-width of a six-lane divided thoroughfare). Such limitation on the maximum width of the paving requirement shall be applied to each side of a street crossing a lot.

(2) Industrial Use Lots, Frontage Roads and Sidewalks. The maximum width of the paving requirement for any frontage road crossing an industrial use lot in any industrial zoning district shall not exceed 36 feet.

(3) Medians. A lot user shall be required to construct the curbing and gutter of a prescribed median within the street abutting or crossing a lot, but shall not be required to construct landscaping or any other facilities upon or within a median, except street lighting when required to be constructed therein by a lot user.

(d) Location of Vehicular Paving. Where the maximum extent of vehicular paving required to be constructed by a lot user within a particular right-of-way of a particular street, as determined pursuant to subsections (b) and (c) of this section, is less than the full extent of paving prescribed for such street pursuant to subsection (a) of this section, the paving to be constructed by the lot user shall be constructed at the location or locations within such right-of-way in accordance with the following standards:

(1) Where the right-of-way has not been previously improved at all with paving, or all paving previously constructed is to be removed, the paving to be constructed shall commence at the planed gutter lip adjacent to the planned vehicular roadway portion of the street.

(2) Where the right-of-way has been previously constructed with existing paving which is to be retained, the paving to be constructed shall commence at the edge of such retained existing paving.

(3) Notwithstanding the foregoing provisions, such paving shall be constructed at such location or locations as determined by the public works director to best provide for and protect the public safety and to best serve the practical utilization of the paving to be constructed by the lot user and any said existing paving to be retained.

(e) Transitional Vehicular Paving. Where, as the result of the application of subsections (b), (c) and (d) of this section to a particular street abutting or crossing a lot, the right-of-way would be unimproved with vehicular paving at a location or locations which the public works director finds would create a hazard detrimental to the public safety or contrary to the practical utilization of the paving to be constructed by the lot user pursuant to said subsections, the lot user shall construct transitional vehicular paving at such location or locations, as follows: (1) between any existing paving to be retained and the pavement section to be constructed by the lot user within such street; (2) between paving within such street (existing and/or to be constructed) and the driveway or other access point or points of the lot; (3) between paving within such street (existing and/or to be constructed) and other paving existing within the right-of-way of the same street but which abuts or crosses another lot or lots located adjacent or contiguous to the terminus or termini of the right-of-way of the street abutting or crossing the lot user of the lot subject to the application of the provisions of this chapter.

(f) Exemption or Deferment for Lot Area or Lots Not Used. Where the use of a lot does not and is not proposed to exceed 60 percent of the lot area of such lot, or where a lot or lots created as the result of a division of land not constituting a subdivision are not and are not proposed to be used (all such lots created by said division being a single lot as defined in this chapter), such lot or lots shall be exempt from the application of the street improvement requirement, to the extent that any street or portion of any street abutting or crossing that part of the lot which is not and is not to be used in excess of said 60 percent of the lot area of such lot, or the lot or lots created as the result of such division which are and are not to be used. Provided, that such exemption shall not apply where the public works director finds that the street improvement requirement is necessary to be maintained, in whole or in part, to avoid a serious hazard detrimental to the public safety caused by or which will be caused by the use of, or to provide for the practical utilization of the street improvements required to be constructed upon and within the right-of-way of any such street abutting or crossing, the part of the lot not exceeding said 60 percent which is or is proposed to be used, or the use of the lot or lots created as the result of said division which are or are proposed to be used.

Provided further, that in the event the lot user proposes to use all or a part of the lot exceeding 60 percent of the lot area, or a lot or lots created as the result of the division of land, pursuant to a program or schedule for the development of the use of such lot or lots the commencement of which is at least one year beyond the date the lot user is subject to the application of the provisions of this chapter, such proposed use may be deemed to be within the exemption provided pursuant to this subsection until such time as the use of said part of the lot exceeding 60 percent of the lot area is used, or the lot or lots created as the result of the division of land is used, and the lot user becomes subject to the application of the provisions of this chapter. Alternatively, the public works director may defer determination of the street improvement requirement to a date certain, or require the lot user to enter into an agreement pursuant to Section 12.10.120 specifying a completion date or dates for required street improvements in accordance with the phases or units of such program or schedule.

Any exemption provided from the street improvement requirement pursuant to this subsection shall not be deemed to grant any similar exemption from the requirement to provide right-of-way pursuant to Section 12.10.070, nor to affect the street improvement requirement for the part of the lot or the lot or lots which are or are proposed to be used.

(g) Utility Facilities. A lot user of a lot subject to the application of the provisions of this chapter shall construct street improvement facilities consisting of utility facilities such as storm drains and other flood control facilities, water and sanitary mains, gas lines, communications facilities, and other utility conduits and casings, within the public right-of-way of each street abutting and crossing the lot, determined by the public works director to be necessary to serve the lot of the lot user and/or other lots and the general public, subject to the policies, tariffs, rules and regulations of the public or private utility entity having jurisdiction over any such utility facility and in accordance with the standards prescribed therefor pursuant to subsection (a) of this section and such utility entity.

All such utility facilities shall be constructed prior to the construction of other street improvement facilities at the location or locations under, within or upon the right-of-way of the street to be improved, in order to avoid unnecessary disruption to the subsequent use of such street and the reconstruction of such other street improvement facilities if any such utility facility was constructed subsequently. The requirement for such prior construction of utility facilities is a primary purpose for requiring such utility facilities to be constructed pursuant to this section (in addition to accomplishing the specific intent and purposes of this chapter).

The extent of the requirement to construct any such utility facility which is not to serve or otherwise benefit the lot shall be limited to a requirement to construct only such utility conduits and casings for such utility facilities necessary to accomplish said primary purpose of avoiding the necessity for subsequent reconstruction of other street improvement facilities, including either the connection of the termini of any such utility conduits or casings to the same utility facilities located contiguous to or within the right-of-way of the street abutting or crossing the lot, or the temporary capping or sealing of said termini if the utility facilities which are intended to be connected thereto are not so contiguous to or within said right-of-way.

(h) Right-of-Way to Be Improved. The right-of-way to be improved by a lot user in accordance with the street improvement requirement of this section includes not only any right-of-way of the streets abutting or crossing the lot of such lot user which has been provided by the lot user pursuant to Section 12.10.070, but also any right-of-way for such streets which has been acquired by the city by other means, including acquisition pursuant to Section 12.10.070(e) or 12.10.110, or by purchase or condemnation from the lot user and/or other owners of said right-of-way and title or sufficient possessory right to which is obtained by the city to enable the lot user to construct the required street improvements therein. (Ord. 924 § 1, 9-12-72; Ord. 1292 § 1, 11-21-78; Ord. 1641 § 2, 12-18-84; Ord 6-2012 § 3, 5-1-12. 1990 Code § 8-3107.)

12.10.090 Special off-site street requirement.

Notwithstanding any provision of this chapter to the contrary limiting the application of the requirements of this chapter to streets abutting or crossing a lot which is subject to said requirements, the city council may require the lot user of such lot to provide the right-of-way for a street which does not abut or cross the lot, and to construct street improvements upon and within such right-of-way, as a condition to the use of such lot.

If the lot user is unable to provide the right-of-way for any such street, the lot user shall make a cash deposit with the city in a sum estimated by the public works director as sufficient to compensate for the fair market value of such right-of-way, and to obtain any necessary appraisal of such right-of-way, and for the city to obtain special legal services and to pay for other costs incurred by the city in the purchase or condemnation of such right-of-way. Such deposit shall be increased by the lot user upon notice from the public works director or city attorney, at any time during the course of or conclusion of proceedings commenced by the city to purchase or condemn said right-of-way when the compensation to be paid for such right-of-way and said costs are more accurately or finally determined.

Any such requirement shall be subject to a finding made by the public works director, which shall be reported to and confirmed by the city council, that the nature and intensity of the use of the lot creates or will create an extraordinary burden upon the capacity of the streets abutting or crossing the lot or the street system in general, and there is no definite indication that other lot users or the city will provide or require such right-of-way and construct such street improvements at some ascertainable date in the near future.

Any such special requirement shall be limited to the minimum extent of right-of-way and street improvements necessary to relieve such extraordinary burden. Except as so limited, however, such right-of-way and street improvements shall conform to the standards prescribed for such street pursuant to the provisions of this chapter unless such street is to serve only a temporary purpose and the city council, upon the recommendation of the public works director, approves the use of lesser standards. Upon such determination being made by the city council to require such right-of-way and street improvements, all other provisions of this chapter shall apply to such special requirement to the same extent as if such right-of-way and street improvements were located within a street abutting or crossing the lot. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3108.)

12.10.100 Street improvement requirement – Construction plans.

(a) Standards for Preparation of Construction Plans. Every lot user required to construct street improvements pursuant to the provisions of this chapter shall cause to be prepared, by a civil engineer licensed by the state of California, complete construction plans for the design and improvement of all such street improvements, except when waived pursuant to subsection (c) of this section.

The determination of the street improvements required to be constructed by a lot user pursuant to the other provisions of this chapter shall be subject to a final precise determination of such requirements in connection with the preparation and approval of the complete construction plans.

The engineering design and other standards and specifications for the street improvements to be utilized in preparing such construction plans, and the form of such plans, shall be based on the standard details and standard specifications of the city, applicable standards relating to the design and improvement of rights-of-way and streets prescribed pursuant to the subdivision ordinance, and any standards prescribed by the city council specifically for the design and improvement of a particular street, supplemented or complemented by such additional details and specifications utilized in local customary engineering practice which are necessary to properly coordinate the design and improvement of such street improvements with the physical characteristics of the lot of the lot user and existing or planned right-of-way and street improvements for streets adjacent to such lot and the streets to be improved by the lot user.

All such construction plans are subject to the final approval of the public works director pursuant to subsection (e) of this section.

(b) Deferral of Construction Plans. The public works director may, upon the request of the lot user, defer, and the agreement entered into pursuant to Section 12.10.120 may provide for the deferment of, the preparation of any or all such construction plans until a specified date or condition occurs when such deferment will avoid unnecessary hardship upon the lot user or delay in the use of the lot and will not be detrimental to the accomplishment of the purposes of this chapter. Approval of any such request is subject to the lot user depositing with the city or a responsible escrow agent or trust company, at the option of the city, money or negotiable bonds or notes, payable or negotiable upon demand by the city, in a sum estimated by the public works director as sufficient to reimburse the city for the preparation of such construction plans in the event of a default of the agreement by the lot user, including failure of the lot user to cause such construction plans to be prepared. The fact that construction plans have not been prepared by the lot user, or have been prepared by the city, shall not be raised as a defense against the legality or enforceability of the agreement.

(c) Waiver of Construction Plans. Where only relatively minor street improvement work is required, or where existing physical conditions, such as street grades, land use, or street systems, are well defined in connection with a particular lot and adjacent streets and lots, the public works director may, upon the request of the lot user, partially waive the requirement for complete construction plans, and permit the preparation of abbreviated or partial construction plans, or may waive entirely the requirement for such construction plans.

Any such waiver is hereby conditioned that in the event there is any uncertainty or difficulty which arises during the course of constructing the street improvements which the public works director finds attributable to the lack of or inadequate construction plans, the public works director may direct the lot user to have the necessary construction plans prepared or may direct the lot user to accomplish the construction in a particular manner consistent with the standard details and standard specifications of the city and customary local engineering practice, and other applicable standards.

The fact that construction plans have been waived shall not be raised as a defense against the legality or enforcement of the agreement entered into pursuant to Section 12.10.120.

(d) Consultation During Preparation of Construction Plans. Whenever, in the course of the preparation of construction plans, the lot user or his/her engineer finds that the best and most proper utilization of the standard details and standard specifications of the city and customary engineering practice in the design and improvement of the required street improvements, as applied to the particular physical conditions of the lot of the lot user, adjacent lots, surrounding area, street grade and other aspects of the right-of-way of the streets to be improved, as to which the construction plans are to be prepared, would necessitate or make desirable obtaining additional or more precise information, the lot user or his/her engineer shall inquire of or consult with the public works director concerning any such information.

The public works director shall promptly determine and inform the lot user or his/her engineer, after any such inquiry or consultation, of any precise design or construction detail or other standard or information essential for the completion of the construction plans, including, but not limited to, such matters relating to elevation and grade of the street, landscaping, location of street lights, fire hydrants and driveway curb cuts, storm drainage systems, and water, gas and other utilities. Where factors beyond the control of the city and lot user make such a precise determination impossible or extremely impractical to determine exactly at such time, the public works director shall determine the conditions and information upon which such a precise determination shall be made, which conditions and information shall be incorporated into the construction plans.

The lot user or his/her engineer shall also inquire of or consult with qualified and authorized representatives of public utilities providing water, sanitary, flood control, electric, and communications services by means of utility conduits and casings included within the street improvement facilities which the lot user is required to construct, to ascertain any special design or improvement standards of any such utility which may be applicable to the construction of such facilities within the right-of-way to be improved by the lot user. The construction plans shall indicate the approval of such utility entities having jurisdiction over such utilities, as required by the public works director.

Any determination made pursuant to this subsection is issued subject to the final approval of construction plans pursuant to subsection (e) of this section.

(e) Approval of Construction Plans. Construction plans required pursuant to this section shall be completed and submitted by the lot user or his/her engineer for approval by the public works director prior to the use of the lot or date specified therefor.

Such construction plans shall be and hereby are incorporated as part of the agreement between the lot user and city entered into pursuant to Section 12.10.120. Conditions, deletions or other revisions to such construction plans made by the public works director shall be signed or initialed by the lot user’s engineer, which signature or initial shall constitute the incorporation of any such conditions, deletions and revisions as part of the construction plans of the lot user and his/her engineer.

The approval of such construction plans by the public works director shall, upon the entering into of the agreement incorporating said construction plans, constitute the approval of the city of the design of the streets, including the street improvement facilities therein, set forth within such construction plans. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3109.)

12.10.110 Special arrangements.

(a) Standards in Excess of Maximum Requirements. If the full extent of right-of-way and/or the full extent of street improvements, which are prescribed as the standards for a street abutting or crossing a lot, exceed the maximum requirements for right-of-way and/or construction of street improvements as applied to such street and lot, either the lot user or the public works director may recommend to or request to negotiate with the other a proposed special arrangement whereby the construction of any such excess street improvements will be provided for. Among other matters, the city and lot user may agree that the street improvements which the lot user is required to construct and the excess street improvements be let as a single construction project by either the lot user or the city or jointly, or under separate projects let by each, and independent of or in conjunction with other street improvement projects.

If the city and lot user do not make any arrangement to coordinate the separate responsibilities of the city and lot user, the lot user shall proceed to perform the requirements of providing right-of-way and construction of street improvements, pursuant to the provisions of this chapter, and the city shall take action toward the objectives of acquiring the full width of the right-of-way and constructing the full extent of street improvements, including payment to the lot user for excess right-of-way and appropriation by the city of funds for the construction of excess street improvements, subject to the financial resources of the city.

(b) Adjustment of Lot User’s Requirements. The city and a lot user may make a special arrangement to adjust the requirements which the lot user is required to perform, including, but not limited to, increasing the lot user’s right-of-way requirement and reducing the lot user’s street improvement requirement in connection with a lot as to which the requirements of this chapter are applicable, and/or reducing the street improvement requirements of such a lot and increasing the right-of-way or street improvement requirements for another lot or lots as to which the lot user is or may be required to perform.

(c) Unusual Applications of Chapter. The city council may adopt special policies to guide the city and lot users as to special arrangements which may be made in connection with the application of the requirements of this chapter where unusual facts are present, including railroad grade crossings and separations and street medians.

(d) Valuation and Approval of Special Arrangements. In connection with any such special arrangement, the public works director shall make or cause to be made a determination of the fair market value of right-of-way and/or cost of street improvements in excess of the maximum requirements which a lot user is required to provide or construct as a condition to the use of a lot, such value and cost being subject to negotiation. Special arrangements shall be accomplished at the time the requirements of this chapter are determined. Any such special arrangement negotiated by the public works director shall be subject to the approval of the city manager, and final approval of any such special arrangement shall be made only upon the approval of the city council prior to or at the time an agreement is submitted to the city council pursuant to Section 12.10.120(a).

(e) Conformance with Chapter by Lot User in Advance of Requirement for Compliance. A lot user may offer to provide right-of-way for and to construct street improvements upon and within any street abutting or crossing the lot user’s lot, in conformance with the provisions of this chapter, prior to the use of the lot and the time when the lot user is required to provide such right-of-way and construct such street improvements.

The city may accept or reject such an offer, or condition its acceptance upon the preparation and approval of construction plans and other reasonable conditions. The lot user may condition its offer and the city may condition its acceptance upon a written agreement being entered into between the lot user and the city.

Provision of right-of-way and/or construction or street improvements pursuant to this subsection shall be in consideration of the city’s agreement to accept full responsibility for the ordinary maintenance of the street improvements upon their completion and acceptance by the city council into the public street system of the city, and in further consideration of fixing and satisfying in advance, upon such completion and acceptance, the specific requirements for right-of-way and street improvements which would thereafter be required in connection with a specific use of the lot user’s lot, for a period of three years from the date of the acceptance of the completed street improvements into the public street system of the city notwithstanding any subsequent amendment of the provisions of this chapter, including revision of the standard details and specification of the city. In the event such street improvements or any portion thereof are not completed and accepted prior to the use of such lot, including issuance of any building or other permit which may be required in connection with such use, both the completed and uncompleted street improvements shall not be deemed to have been or to be constructed pursuant to this subsection but shall be deemed to have been or to be constructed pursuant to the other provisions of this chapter applicable to a lot, and the city may require that an agreement be entered into pursuant to Section 12.10.120 and that procedures and provisions of this chapter applicable to a lot subject to the requirements of this chapter be complied with in connection with such street improvements. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3110.)

12.10.120 Street improvement requirement – Agreements and improvement securities – Default and enforcement.

(a) Requirement and Standard for Agreements. Prior to the use of a lot, a lot user subject to the provisions of this chapter shall enter into a written agreement with the city upon mutually agreeable terms providing for the construction by the lot user, at the lot user’s expense, of all street improvements required pursuant to the provisions of this chapter.

Forms of agreements prepared by the city may be utilized, containing provisions relating to the matters set forth in this section and other usual and normal provisions of an agreement necessary or desirable in connection with the accomplishment of the purposes of the lot user and the city pursuant to this chapter. The city manager hereby is authorized to enter into an agreement on behalf of the city which has been executed by a lot user, providing for the construction by the lot user of street improvements required pursuant to the provisions of this chapter; provided, that any such agreement shall substantially conform to a form of agreement which has been approved by the city council. An agreement not substantially conforming to such a form shall not be entered into by or on behalf of the city unless approved by the city council authorizing the mayor, city manager or other officer of the city to execute such agreement; provided further, that any special arrangement made pursuant to Section 12.10.110 is subject to the approval of the city council.

No agreement shall be entered into by or on behalf of the city unless approved as to form by the city attorney and his/her approval shall be deemed as conclusive as to the authority of the mayor, city manager or other city officer to execute the agreement.

The city council or city manager may require that any particular agreement, or memorandum thereof, be recorded in order to put prospective or successor lot users, or the owner or other owners and encumbrances of the lot, on notice that the lot user executing the agreement is required to construct street improvements pursuant to the provisions of this chapter and that use of the lot by said lot user is subject to construction and completion of said street improvements. The city clerk shall, upon direction of the city manager or city council, file such agreement or memorandum thereof, for record in the office of the county recorder.

(b) Date or Condition for Completion.

(1) General Requirement. The agreement shall specify a date certain when or condition upon which construction of the required street improvements and performance of the agreement shall be completed by the lot user.

In order to allow the lot user sufficient latitude in planning and arranging for the commencement of a new use upon the lot, such use may commence, including development pursuant to a building or other permit required as a condition to the commencement or development of such use, prior to the construction of such street improvements; provided, that the agreement has been first executed by the lot user and subsequently executed by the city.

The objective to be sought by the lot user and city shall be to specify a date certain for said completion at the same time or at the most proximate time practical as when any development phase of the use upon the lot is also completed and when the lot is authorized and ready for occupancy by residents, tenants, and invitees for the primary intended use of the lot.

(2) Normal Standard of One Year for Completion Date Action. The normal standard to be followed in specifying the completion date shall be one year from the date as of when the agreement is entered into, which date shall normally be the date of execution of the agreement by the city.

(3) Completion Dates Certain Specified Earlier or Beyond One-Year Standard. Upon the recommendation of the public works director and approval of the city manager, a completion date certain beyond the one-year standard may be specified, or different completion dates may be specified for phases or units of construction of the required street improvements, where the scope or complexity of the development of the use by the lot user would justify such, and such later or different completion dates would not create a serious hazard detrimental to the public safety or be detrimental to the accomplishment of the purposes of this chapter. No completion date beyond two years beyond the one-year standard shall be approved for any initial phase or unit, and no completion date for any of the required street improvements shall be approved beyond three years beyond the one-year standard (four years from execution of the agreement by the city), unless approved by the city council.

The public works director may specify an earlier completion date than the one-year standard for all or any portion of the street improvements where he/she finds that there will be, upon completion of any development phase of the use upon the lot and when the lot is authorized and ready for occupancy by residents, tenants and invitees for the primary intended use of the lot, a serious hazard detrimental to the public safety unless all the required street improvements or a specified portion thereof are completed at such earlier date prior to the one-year standard.

(4) Extension of Completion Date Certain. The agreement may provide for the extension of the date certain specified in the agreement for completion of the construction of the required street improvements, upon request of the lot user and upon the recommendation of the public works director and approval of the city manager. No extension beyond two years from said specified completion date shall be made or be binding upon the city unless approved by the city council. No extension of said completion date shall be approved unless good grounds exist therefor and such extension will not create or prolong a serious hazard detrimental to the public safety.

Any extension beyond five years from said completion date specified in the agreement shall not be approved by the city council unless the request therefor is supported by a report to the city council from the city manager containing a thorough analysis of the consequences to the public safety and the accomplishment of the purposes of this chapter if such extension is approved.

(5) Completion Dates for Existing Uses. When the use of a lot, subject to the application of the provisions of this chapter, is a continuation or expansion or change of an existing use, the same standards set forth in the foregoing in connection with the commencement of a new use shall generally be applied for determining the completion date for the street improvements required as a condition to such existing use.

If the public works director finds that any such existing use has or will result in an increase in the continuous or regular vehicular and/or pedestrian traffic generated to and from the lot and the city street system, which exceeds the traffic which would be generated if such existing use were a new use and which increase has or will create a serious hazard detrimental to the public safety, the public works director shall specify a completion date at the earliest date possible as to all or such portion of such street improvements as is necessary to eliminate, avoid or minimize such hazard, or where any such increase has or will create an extreme hazard, completion may be required prior to the expansion or change of an existing use.

(6) Conditions Subsequent Specified for Completion in Lieu of Date Certain. Upon the recommendation of the public works director and approval of the city manager, the lot user and city may specify a condition subsequent upon which construction of all or certain of the required street improvements shall be completed, instead of a date certain, where the most practical and economical procedure for the construction and utilization of such street improvements, from both the city’s and lot user’s point of interest will be served by providing for a condition subsequent for such completion. Such a condition subsequent may be, among others, such as when a lot immediately adjacent to and on one side or the other of the lot user’s lot, or when a certain percentage of other lots on the street fronting on the same block of the same street upon which the lot user’s lot also fronts, have or become subject to having street improvements constructed pursuant to the provisions of this chapter or otherwise are or are scheduled to be improved in substantial conformance with the standards prescribed by the city for construction of street improvements upon and within such street; or such as when the city undertakes a project for the widening or other improvement of such street within such block or adjacent to such lot. Before any such condition subsequent for such construction and performance is approved, the public works director shall determine an estimated date certain upon which the earliest condition subsequent will or might occur and shall find that the estimated period of time during which such construction will not therefore likely be completed would not create a serious hazard detrimental to the public safety. The maximum period of time to which any such condition subsequent shall be effective shall be six years from the date of execution of the agreement by city unless completion beyond said maximum six years is expressly approved by the city council pursuant to the terms of the agreement, or pursuant to an extension beyond said six years requested by the lot user, and such extension is supported by a report to the city council from the city manager, containing a thorough analysis of the consequences to the public safety and the accomplishment of the purposes of this chapter if such terms or extension is approved.

(c) Improvement Security. Every agreement between the city and a lot user shall be secured by a good and sufficient improvement security consisting of, except as provided otherwise herein, one or more of the following:

(1) Standard Form.

(A) A deposit or deposits either with the city or a responsible escrow agent or trust company, at the option of the city, of money or negotiable bonds or notes of the kind approved for security deposits of public moneys, or (B) a bond or bonds (a performance bond and a payment bond, or bonds) by one or more duly authorized corporate sureties, or (C) an instrument or instruments of credit from one or more financial institutions subject to regulation by the state or federal government and pledging that the funds necessary to carry out the agreement are on deposit and guaranteed for payment. The type or types of such security to be given shall be determined by the lot user subject to the approval of the public works director and city attorney, except that a deposit in accordance with subsection (c)(1)(A) of this section, payable to or negotiable upon demand of the city, shall be required to secure the preparation of construction plans when such preparation has been deferred pursuant to Section 12.10.100(d). The form of any such surety bond security shall conform with requirements prescribed for such sureties pursuant to the Subdivision Map Act, and the forms of any security provided shall be subject to the approval of the city attorney.

The improvement security shall be in the amounts and for the following purposes: (A) an amount equal to 100 percent of the total cost of the street improvements as estimated by the public works director, conditioned upon the faithful performance of the agreement, and (B) an additional amount equal to 50 percent of such estimated total cost, securing payment to any contractor, his/her subcontractors and to persons furnishing labor, materials or equipment to the contractors or subcontractors for the required street improvements, and (C) an amount equal to 40 percent of such estimated total cost, or such other amount determined by the city council following completion and final acceptance of the street improvements by the city council into the public street system of the city and accepted for usual and ordinary maintenance by the city, to be necessary, to secure the maintenance of the street improvement work for a period of one year following the date of said final acceptance, against any defective work or labor done, or defective materials furnished, in the performance of the agreement. As part of the agreement guaranteed by the improvement security and in addition to the face amount of the security, there shall be included costs and reasonable expenses and fees, including attorneys’ fees for special counsel associated with the city attorney and/or the cost and expense to the city of the city attorney’s services, incurred by the city in successfully enforcing the agreement.

Improvement security provided by a deposit of money, negotiable bond or note or instrument of credit shall be a trust fund to guarantee performance and shall not be subject to levy or attachment by any creditor of the lot user or depositor or other depositors until the agreement secured thereby is performed to the satisfaction of the city as evidenced by the completion and final acceptance of the street improvements by the city council and the exoneration of such security.

Improvement security may be released or reduced in whole or in part in the following manner: (A) security given for faithful performance of the agreement may be released in full upon final completion and acceptance of the required street improvements by the city council, pursuant to notice given by the city clerk to the surety or depositor of the security, and lot user; or such improvement security may be partially released by the city manager in an amount not exceeding the valuation of partially completed street improvements certified as completed by the public works director during the course of construction; provided, that the total amount of all such partial release shall not exceed 90 percent of the total of the improvement security; (B) security securing the payment to the contractor, his/her subcontractors and to persons furnishing labor, materials or equipment may, six months after the final completion and acceptance of all the required street improvements by the city council, be reduced by the city manager to an amount not less than the total of all claims on which an action has been filed and notice thereof given in writing to the city council delivered to the city clerk, and if there are no actions filed, such improvement security may be released in full pursuant to notice given by the city clerk as aforesaid.

Any such release or reduction of such security in whole or in part shall not apply to the required maintenance period nor to 40 percent of the face amount of the faithful performance security or such other amount of the security deemed necessary by the city council for such maintenance period nor to the aforesaid costs, expenses and fees incurred by the city in successfully enforcing the agreement.

The liability of the improvement security given for faithful performance of the agreement shall be limited to: (A) the performance of the street improvement work covered by the agreement between the lot user and the city, (B) the performance of any changes or alterations in such work; provided, that all such changes or alterations do not exceed 10 percent of the original estimated cost of the street improvements as specified in the agreement, (C) the maintenance of the work for a period of one year following the final completion and final acceptance thereof by the city council, against any defective work or labor done, or defective materials furnished, in the performance of the agreement with the city, (D) costs and reasonable expenses and fees as aforesaid, incurred by the city in successfully enforcing the agreement.

Where the improvement security securing payment to the contractor, his/her subcontractors and to persons furnishing labor, materials or equipment to them for the required street improvements takes the form: (A) of money or negotiable bond or note, a suit to recover the amount due the claimant may be maintained against the city or other holder of such deposit; (B) a surety bond (payment bond), the right of recovery shall be in a suit against the surety; (C) an instrument of credit, the cause of action shall be against the financial institution obligating itself on such instrument of credit.

(2) Alternative Security Lien. In lieu of the foregoing standard type of improvement security, a lot which is subject to the application of the street improvement requirements of this chapter may serve as the improvement security for the agreement providing for the construction of the street improvements, when the city finds that it would be unjust to require the lot user of such lot to provide improvement security of cash, surety bond or instrument of credit by reason of extreme hardship or when the specification of a date certain or condition subsequent for completion of any such street improvements is established by the agreement which is or is estimated to be at least three years beyond the date of execution of the agreement.

Such special improvement security shall not be approved unless the lot has sufficient equity value, unencumbered by prior encumbrances, to secure the obligations specified in the foregoing provisions of this subsection in regard to the standard type of improvement security.

A deposit, either with the city or a responsible escrow agent, a trust company, at the option of the city, or money or negotiable bonds or notes of the kind approved for securing deposits of the city, payable or negotiable upon demand of the city shall remain the required improvement security to secure the preparation of construction plans when such preparation has been deferred pursuant to Section 12.10.100(d).

Such special improvement security shall be evidenced by an instrument (which may be referred to as a lien agreement) agreeing that in the event of default in performance of the street improvements, the city may cause such street improvements to be constructed and the cost thereof to be assessed as a lien against the lot which may be foreclosed upon if necessary, in addition to other remedies set forth therein, or provided pursuant to law for the enforcement of contracts.

Such lien agreement improvement security shall recite that it runs with the land in order to put prospective or successor lot users, owners, and encumbrancers of the lot on notice that the lot user, or the owner or other owners of the lot executing the lien agreement, is required to construct street improvements pursuant to the provisions of this chapter, that the use of the lot by said lot user is subject to construction and completion of said street improvements, and that the lot provides improvement security for such street improvements and is subject to, in the event of default by the lot user to construct said street improvements, having the costs thereof assessed as a lien against the lot which may be foreclosed upon, notwithstanding any change in the use of the lot, lot user or ownership of the lot.

In the event the lot user is not the owner or sole owner of the lot, he/she shall obtain execution of all the owners of the lot.

Pursuant to the provisions of subsection (a) of this section, if a form of agreement for said lien agreement has been approved by the city council, the city manager shall have the authority to approve such alternative lien agreement improvement security; otherwise such improvement security shall be subject to approval by the city council.

The city clerk shall file any such lien agreement, or memorandum thereof, executed by the city, for record in the office of the county recorder.

(3) Alternative Assessment Proceeding Security. In lieu of the foregoing types of improvement security, the agreement providing for the construction of street improvements may be substituted with or additionally secured by a legally binding written agreement of the lot user and the lot owners or other lot owners of the lot, agreeing to the initiation and consummation of proceedings under a special assessment act for the financing and construction of all or any portion of the street improvements required pursuant to this chapter (whether or not determined with finality or whether or not construction plans have been prepared and approved therefor in accordance with the provisions of this chapter) and to the prescribed standards for each street abutting or crossing the lot of the lot user, and to pay all the costs and assessments thereunder pursuant to said proceedings.

Such alternative security shall be approved only upon findings made by the public works director that (1) a requirement for the standard form or alternative lien security is not in the best financial, planning and general interests of the lot user, and (2) a serious hazard detrimental to the public safety will not be created and is not otherwise detrimental to the accomplishment of the purposes of this chapter, and (3) the successful initiation and consummation of any such special assessment proceedings is reasonably assured and has been at least preliminarily approved by the city council.

Such assessment proceeding security agreement shall recite that it runs with the land and may be recorded in order to constitute notice to any prospective or successor lot users, owner or other owners and encumbrancers of the lot.

In the event the lot user is not the owner or is not the sole owner of the lot, he/she shall obtain execution of all owners of the lot.

Pursuant to the provisions of subsection (a) of this section, if a form of agreement for said assessment proceeding security agreement has been approved by the city council, the city manager shall have the authority to approve such alternative security; otherwise such improvement security shall be subject to approval by the city council.

The city clerk shall, upon direction of the city manager or city council, file such agreement, or memorandum thereof, for record in the office of the county recorder.

(d) Administration, Default and Enforcement of Agreements. The city manager, acting through the public works director, finance and general services director, or otherwise, shall establish whatever procedures and regulations necessary or desirable for the administration of agreements executed by the city pursuant to this chapter, to assure the completion of street improvements required thereunder and the performance of all other terms thereof by the lot users and the city.

The public works director or other officer designated by the city manager shall, in accordance with any administrative regulations established by the city manager, report to the city attorney any breach of an agreement executed by a lot user, including a failure to complete the required street improvements or any other default in the performance of the agreement.

The city attorney shall, upon receipt of a report from the public works director or city manager or other designated officer, of a breach of an agreement executed pursuant to the provisions of this chapter, or of any other failure to comply with, or violation by a lot user subject to, the provisions of this chapter, undertake and pursue any available remedy to enforce such agreement, or obtain such compliance or abate such violation, including the commencement and prosecution of appropriate judicial proceedings in a court of competent jurisdiction. The city attorney may file for record in the office of the county recorder a notice of the pendency of such proceedings affecting a lot, the subject of such agreement, including, if applicable, a statement that such lot is subject to assessment and foreclosure pursuant to such agreement. The city attorney shall report to the city council the commencement of any such legal proceedings and the final judgment of the original judicial proceeding therein.

(e) Substitution of Agreement and Improvement Security. A successor lot user or owner of the lot as to which an agreement has been executed by a lot user and the city pursuant to this section may request that the obligation of the lot user executing the agreement be transferred to and assumed by such successor lot user and/or owner. Any such transfer and assumption and the improvement security provided therefor shall be subject to approval by the city in the same manner as the original agreement and improvement security. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3111.)

12.10.130 Construction, inspection and completion of street improvement requirement.

(a) Prerequisites to Commencement of Construction. Prior to the commencement of construction of street improvements required pursuant to an agreement executed pursuant to the provisions of this chapter, the lot user shall obtain or cause to be obtained by his/her contractor or other agent, from the public works director, any encroachment or other permit required pursuant to this code as a condition to the occupation and construction within rights-of-way and streets.

If construction plans for the street improvements have been deferred in whole or in part pursuant to Section 12.10.110(d), such construction plans shall be submitted for approval of the public works director prior to the issuance of any such permit and before commencement of construction.

(b) Inspection by City During Construction. The construction of street improvements required pursuant to this chapter shall be subject to inspection by the public works director during the progress of such construction in accordance with policies and practices established by the director in connection with any such work.

Certification of partial completion during the progress of construction for the purposes of partial release of improvement security shall be subject to the provisions of Section 12.10.120(c).

(c) Final Inspection and Certification of Completion. When the lot user or his/her contractor or other agent has determined that the street improvements required to be constructed pursuant to an agreement executed pursuant to this chapter have been completed, the lot user or agent shall inform the public works director of such determination and request a final inspection of the completed street improvements.

Upon such request, or upon his/her own determination, the public works director shall make a final inspection and, if he/she finds that the full extent of the required street improvements have been completed pursuant to the agreement and the approved construction plans therefor, he/she shall promptly transmit to the lot user and to the city clerk a certification of such completion.

If the public works director finds, upon such inspection, that the full extent of the required street improvements have not been completed, he/she shall inform the lot user of the findings of such inspection.

(d) “As Built” Improvement Plans. Unless waived in whole or in part by the public works director, a complete improvement plan “as built,” in a form complying with the requirement for such plan required pursuant to the subdivision ordinance, shall be filed with and subject to the approval of the city engineer or public works director upon completion of street improvements required pursuant to an agreement executed pursuant to this chapter. The filing and approval of such “as built” improvement plan shall be a condition to the certification of completion of the street improvements by the public works director and acceptance thereof by the city council. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3112.)

12.10.140 Acceptance of complete street improvements – Final procedures.

(a) Acceptance. All street improvements constructed by a lot user pursuant to the provisions of this chapter shall be accepted by the city council into the public street system of the city, and all such street improvements within the jurisdiction of the city shall be accepted thereafter for usual and ordinary maintenance by the city, not later than 30 days after certification of completion has been received by the city clerk from the public works director.

(b) Final Procedures. Release and exoneration of the agreement and the improvement security for street improvements accepted by the city council shall be in accordance with the provisions of Section 12.10.120(c), including the requirements for the acceptance by other public or private entities of specific street improvement facilities within their respective jurisdictions, and for the lot user to maintain the completed street improvements for a period of one year.

Upon such acceptance, the city shall file for record in the office of the county recorder a quitclaim or other appropriate instrument to clear the title of a lot from the effect of any agreement recorded pursuant to this chapter.

Upon request of a lot user, the public works director shall issue a statement of compliance that a particular lot is, as of the date of said acceptance of the city council, in compliance with the provisions of this chapter. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3113.)

12.10.150 Preexisting uses.

(a) Preexisting Lot Use Not Conforming with Chapter. A lot user of a lot which was being used in conformance with the zoning ordinance prior to and on August 5, 1960 (the effective date of the original adoption of this chapter) is exempt from the provisions of this chapter as of said date, and said exemption shall continue indefinitely beyond said date as to said lot and lot user and successor lot users and as to the same or different use (whether a continuation, expansion or change of such preexisting use or the substitution of a new or other different use) conforming to the zoning ordinance.

Said exemption shall terminate if any one or more of the following events occur:

(1) There is an abandonment or cessation of a use of the lot for a period of three months; the lot shall not again be used until the requirements of this chapter are complied with.

(2) There is a subdivision or other division of the lot, or the lot is combined in common ownership or use with an adjacent lot or lots.

(3) There is an addition of any new main building or buildings upon the lot.

(4) There is a reconstruction or replacement of any existing main building or buildings upon the lot as the result of damage by fire, flood, explosion, wind, earthquake or other calamity, which results in either: (A) the reconstruction or replacement of 25 percent or more of the existing total floor and ground area of such buildings, or (B) the market value of such reconstruction or replacement exceeds 25 percent of the county assessor’s appraisal of the market value of such main buildings, the chief building official determining the market value of such reconstruction or replacement in connection with the issuance of building permits therefor and said appraisal from the latest valuation by the county assessor.

(5) There is an addition, enlargement, alteration or other improvement to any existing (at any given point in time) buildings, structures, and other improvements and/or, in addition of any new accessory building, structures which are not buildings, or nonstructural improvements, for the same or different use upon the lot, which increases, within any five year period, either: (A) the total floor and ground area of buildings and structures for such use to an extent of 25 percent or more, or (B) the county assessor’s appraisal of the market value of all improvements for such use upon the lot in excess of 25 percent, the chief building official determining such increase in value of improvements constructed since the latest valuation by the county assessor. Provided, that the lot shall remain exempt from the requirements of this chapter where the public works director finds that any such improvement, which would result in an increase in floor area or value as aforesaid, would not result in any significant and measurable increase in regular vehicular ingress and egress to the lot being improved and a consequent additional burden upon the public street system.

Notwithstanding the above, in making determinations as to the extent of an increase in floor area or value, the following shall not be included within the calculations of floor area or value: (A) residential use lot – any addition, enlargement, alteration, or other improvements to an existing main building of a residential dwelling, and/or addition of a new or improvement to other existing buildings and other structures upon the lot which are accessory to the main building; provided, that no additional dwelling units or sleeping rooms are created. The chief building official shall determine the value of such improvements from reliable information provided by the lot user making such improvements if such value cannot be determined from the county assessor’s records; (B) nonresidential use lot – any addition, enlargement, alteration or other improvement to an existing nonresidential main building, and/or addition of a new or an improvement to existing buildings and other structures accessory to such main building; provided, that the total cumulative floor area of such improvements does not exceed 200 square feet during any five-year period.

(6) There is an increase, within any five-year period, in regular vehicular traffic generated from and to the lot being used for the same or different use which exceeds 25 percent. Such an increase in traffic generation shall be determined by a traffic study approved by the public works director, from which study it can be reasonably found, under recognized traffic engineering standards, that such an increase in traffic has occurred, or will occur in the case of a proposed new use upon the lot.

(7) There is a condition of approval attached to a rezoning of the lot or conditional use permit or variance granted pursuant to the zoning ordinance, and a finding is made, in connection with the attachment of such condition, that as a result of the use of the property pursuant to such rezoning, use permit or variance, there would be regular pedestrian or vehicular ingress and egress from such property.

(b) Lot Uses Previously Conforming. A lot user of a lot which became subject to and complied with the provisions of this chapter at any time after August 5, 1960 (the effective date of the original adoption of this chapter) is exempt from further application of the requirements of this chapter notwithstanding that the standards prescribed for right-of-way and/or street improvements for any street abutting or crossing such lot may have been revised subsequently and thereby causing the right-of-way and/or street improvements constructed by such lot user to be nonconforming to such revised standards.

Said exemption shall continue indefinitely as to said lot and lot user and successor lot users and as to the same or different use conforming to the zoning ordinance. Said exemption shall terminate if any one or more of the events occur as set forth in subsection (a)(2), (a)(3), (a)(6) or (a)(7) of this section in connection with lot uses preexisting August 5, 1960.

In the event any such lot becomes subject to the reapplication of the provisions of this chapter as the result of the occurrence of one or more said events, the application of the standards and specific requirements of this chapter to the lot and the street or streets abutting or crossing the lot shall be limited so as to give full credit for all such existing street improvement facilities constructed by the lot user or predecessor lot user pursuant to and in conformance with this chapter and the lot user shall not be required to reconstruct such street improvement facilities, notwithstanding that one or more of such constructed street improvement facilities do not conform to said standards prescribed therefor at the time of occurrence of any such event.

Any such credit for existing street improvement facilities shall not affect the right-of-way requirement or the street improvement requirement as to other street improvement facilities required pursuant to the standards prescribed therefor at the time of the application of the provisions of this chapter to such lot.

(c) Other Street Improvements Previously Constructed by Lot User or Owner. Where street improvement facilities have been constructed within the right-of-way of any street abutting or crossing a lot of a lot user subject for the first time to the application of the provisions of this chapter (whether or not such lot is a lot which had been exempted pursuant to subsection (a) or (b) of this section), the application of the standards and specific requirements to such street or streets shall be limited so as to give full credit for all such existing street improvement facilities, and the lot user shall not be required to reconstruct such improvement facilities, notwithstanding that any one or more of such street improvement facilities do not conform to the standards prescribed therefor at the time of said application of the provisions of this chapter to such lot, subject to the following provisions. All such street improvement facilities must have conformed to the prescribed design and construction standards applicable at the time of construction and must have been accepted into the public street system. Such street improvement facilities must have been constructed at the expense of the lot user or predecessor lot user or owner pursuant to assessment district proceedings, a cooperative project with the city, or otherwise.

12.10.160 Variances.

(a) General.

(1) A variance from the strict application of any one or more of the requirements prescribed by this chapter may be granted by the city council pursuant to the provisions of this section where any such requirement or requirements, as applied to a particular lot and lot use, because of special circumstances applicable to the lot and lot use, including size, shape, location or surroundings of the lot and the regularity and intensity of vehicular and/or pedestrian ingress and egress to and from the lot resulting from the use thereof, would cause undue hardship, unnecessary to carry out the purposes and spirit of this chapter, or where the public interest in the imposition of any such requirement or requirements is heavily outweighed by the individual hardship which would be imposed, or where such requirement or requirements would bring about an unreasonable or illegal result if applied to the lot and lot use.

(2) Before procedures are commenced for the consideration and granting of a variance, the specific requirements which are applicable to a particular use and lot shall have been fully determined by the public works director pursuant to Section 12.10.060(b) or (c) and other provisions of this chapter. Said procedures shall be commenced prior to the transfer to and acceptance by the city of title to right-of-way, or the execution by a lot user or city of an agreement for the construction of street improvements, required pursuant to said determination.

(b) Informal Procedure. A lot user may initiate action necessary for the consideration and granting of a variance by requesting in writing to the public works director that the public works director recommend to the city manager that the city manager recommend to the city council that a variance be granted by the city council from a specific requirement or requirements of this chapter.

Such request of the lot user shall describe in detail the nature and scope of each and every specific requirement as determined by the public works director from which the lot user desires to have a variance granted, such as whether the variance requested is from the full extent of the right-of-way and street improvement requirements of this chapter, or for a reduction in the amount, number or type of designated specific right-of-way and/or street improvement requirements, and shall include a statement of the special circumstances justifying the request in accordance with subsection (a) of this section.

The public works director shall, within 10 days of receipt of such request, reply in writing to the lot user, reporting his/her determination and a brief statement of his/her reasons; provided, that the public works director and lot user may agree to extend the time when such determination shall be made.

(1) If the public works director’s determination is that he/she will recommend to the city manager that the request for a variance be granted in its entirety, the public works director shall promptly transmit a report of his/her recommendation and reasons therefor to the city manager who shall, within 10 days of the transmittal, consider such request and recommendation and, by written reply, inform the lot user of his/her determination. If the city manager determines to concur with the requested variance and favorable recommendation of the public works director, the city manager shall cause the request and his/her favorable recommendation to be scheduled for consideration and action by the city council at a meeting to be held within 30 days of his/her determination. The city council may grant the variance request based upon the evidence transmitted to it by the city manager or may require additional evidence before making a decision. No motion or action to deny the variance, in whole or in part, should be made, but, upon motion and passed, the council may terminate the informal procedure herein.

(2) If either the public works director or the city manager (notwithstanding a contrary determination of the public works director) determines, pursuant to subsection (b)(1) of this section, to not recommend favorably the granting of the requested variance, in whole or in part, the lot user may, in his/her discretion, either terminate the informal procedure herein and proceed pursuant to the formal procedure set forth in subsection (c) of this section, or within 10 days of the date of such reply, request the city manager, in writing, for an informal review and hearing, by and before the city manager, of the determination of the public works director or of the city manager, as the case may be. The review and hearing shall be scheduled to be held by the city manager within 10 days of receipt of such request, with notice of the time and place of such review and hearing to be given to the lot user at least three days prior to the date of the review and hearing. At the conclusion of the informal review and hearing, the city manager shall make a decision within five days thereof and inform the lot user in writing of his/her determination and a brief statement of his/her reasons. If the city manager’s determination is to recommend favorably the granting, in its entirety, of the requested variance, notwithstanding the public works director’s or his/her own prior contrary determination, the recommendation of the city manager shall be scheduled for consideration by the city council in accordance with subsection (b)(1) of this section.

(3) In the event the lot user accepts a determination of the public works director or of the city manager pursuant to subsection (b)(1) or (2) of this section to recommend that the requested variance be granted in part, but not in whole, the lot user shall, within 10 days of the date of the reply of the public works director or the city manager, inform the public works director or city manager, as the case may be, of his/her acceptance of such determination and request that his/her original request be amended to conform to such determination, in which case the requested variance shall be considered thereafter in accordance with the applicable procedures of subsection (b)(1) of this section.

(4) The public works director, in connection with making his/her final determination pursuant to Section 12.10.060(c), of the requirements of this chapter applicable to a particular lot, may recommend to the city manager that a variance be granted, without the necessity of an informal request therefor by the lot user, where the public works director determines that such a variance is justified pursuant to subsection (a) of this section. Such a determination shall be transmitted to the city manager, and, if he/she concurs with such recommendation, the matter shall be scheduled for consideration and action by the city council pursuant to the provisions of subsection (b)(1) of this section to the extent such provisions are applicable. Prior to such scheduling, the city manager or public works director shall inform the lot user of the proposed variance and that the matter will be so scheduled with a favorable recommendation unless the lot user informs the city manager, within 10 days of written notice of such determination, that he/she does not accept the nature or extent of the variance which the city manager has determined to recommend, in which case the action of the public works director and city manager does not concur with the favorable recommendation of the public works director, the action of the public works director shall likewise terminate.

(5) The informal procedure for processing variances pursuant to this subsection (b) is voluntary and is provided in recognition of the fact that many variances from the requirements of this chapter, approved between the original adoption of this chapter in 1960 and prior to the adoption of this subsection as part of this chapter in 1972, have been undisputed, noncontroversial, and agreed to by the public works director, city manager, affected lot users, and city council, and thus, in order to expedite such processing, said informal procedure has been adopted for such variances, subject to the procedural safeguards herein provided for both the city and lot user when, at any stage of such informal procedure, agreement and concurrence as to a particular variance is not obtained.

In the event the city council does not grant a requested variance recommended by the city manager pursuant to subsection (b)(1) of this section, or a lot user decides to not accept a determination of the public works director or city manager pursuant to subsection (b)(2), (b)(3) or (b)(4) of this section, the informal procedures shall be deemed terminated as provided therein, and the lot user may proceed pursuant to the formal procedure set forth in subsection (c) of this section, in which case the hearing held pursuant to subsection (c) of this section shall be de novo, and neither the lot user nor the city shall be prejudiced or limited to or by the evidence considered by the public works director or city manager or city council in connection with the informal procedure herein.

When the city council acts pursuant to subsection (b)(1) of this section to terminate the informal procedure, notwithstanding a favorable recommendation of the city manager, such action by the city council shall not be deemed to prejudge the final action of the city council pursuant to subsection (c) of this section, such action to terminate the informal procedure being presumed to indicate only that the city council has resolved that the significance of the variance request to the lot user or to the city, in view of the purposes and objectives of this chapter, warrants a formal hearing procedure regardless of whether the city council would have been inclined, at the conclusion of the informal procedure, to act to grant or deny, in whole or in part, the requested variance.

In this spirit, reference to the fact that the informal procedure has been utilized but has not been concluded to the satisfaction of the lot user or city manager or public works director should be avoided by the lot user and city whenever the developer requests a variance pursuant to the formal procedure provided pursuant to subsection (c) of this section.

(1) A lot user may formally apply for a variance from any or all of the requirements of this chapter. Also, where the lot user is of the opinion that any such requirement determined by the public works director is not applicable to said use, as distinguished from a situation where the developer concedes that said requirement applies by the terms of this chapter but that a variance is justified, he/she may likewise proceed pursuant to this subsection notwithstanding that such a procedure is more properly denominated an appeal; provided, that a lot user may formally appeal to the city council any decision made, not involving a request or application for a variance, made in connection with the administration or enforcement of this chapter, pursuant to Chapter 1.25.

(2) The city council shall not be required to consider any variance application where the determination of the public works director is based on a formal estimate made pursuant to Section 12.10.060(b), and the use of the lot is a proposed new use and there is inadequate or indefinite information and other evidence as to the nature and extent of the use and its effect on the public street system.

In the event the city council grants or denies a variance, in whole or in part, prior to the submission of the lot user of such final definitive plans for such use and upon said formal estimate of the public works director, the action of the city council may be reconsidered upon request of the lot user or city manager, when new information and other evidence available at such time such final definitive plans are submitted, or a final determination of the public works director is made pursuant to Section 12.10.060(c), would justify such reconsideration, and said action upon said indefinite plans shall not be final and conclusive until said final determination, and reconsideration (if any is requested), is concluded.

(3) The application for any such variance shall describe in detail the nature and scope of each and every requirement from which the lot user desires to have a variance granted, and shall be filed with the city clerk and thereafter placed upon the city council agenda within 30 days.

Pending the meeting at which such application shall be considered by the city council, the city manager shall conduct or cause to be made an investigation concerning the application, including the obtaining of a report thereon from the public works director, and shall render his/her report thereon to the city council, a copy of which shall be delivered or mailed to the lot user not less than five days prior to such meeting.

(4) No public hearing need be held on any such application by the city council; provided, that a public hearing may be held when the same shall be deemed necessary by the city council. If a public hearing is ordered, notice thereof shall be given by publishing notice of the same in a newspaper of general circulation in which city notices are regularly published, not less than five days prior to the date of such hearing, and by such other means as the city council deems necessary. If an application has been scheduled for consideration without a public hearing having been ordered, and prior to the commencement or conclusion of such consideration the city council determines to order a public hearing to be held, such consideration shall be continued until the time specified in said notice.

(5) The consideration by the city council of an application for a variance shall be conducted as a quasi-judicial hearing and proceeding at which the application, city manager’s report, and all other evidence concerning such variance shall be submitted to and taken into consideration by the city council, and, at the conclusion of which, the city council shall exercise its discretion in the determination of facts and make a final administrative order or decision on the application (except as provided otherwise pursuant to subsection (c)(2) of this section). Formal rules of evidence and judicial procedure need not be strictly adhered to; provided, that all essential principles of due process of law shall be observed, including the right of examination and cross-examination of witnesses.

(6) The city council may grant or deny any such application for variance, in whole or in part or upon specified conditions, where it deems such action just and equitable or legally necessary. No such variance shall be granted unless and until the city council has made appropriate findings of the existence of grounds as prescribed in subsection (a) of this section, in addition to a finding that the granting of such variance shall not constitute a grant of special privilege inconsistent with requirements applied to other lots and lot uses and generally required to be performed by other lot users in the city subject to the provisions of this chapter.

(7) The city council may, in its sole discretion, initially or at any stage after commencement of a hearing of a variance, obtain the services of a qualified independent hearing officer, who shall report his/her findings and recommendations to the city council. The costs incurred for any such hearing officer shall be determined by agreement between the applicant and city or by applicable regulation of laws pertaining thereto.

(8) The city clerk shall maintain the record of the proceedings before the city council, including all documentary evidence, minutes, tape or other audible recording, for the period required by law for retention of such records. Such records shall be made available for inspection to any person requesting such, and copies shall be provided upon payment of any fee or charge required by resolution or order of the city council or other regulation or law. Either the applicant or city may provide for a court reporter or other competent transcriber to be present at a hearing.

(9) The formal procedure for consideration of a variance pursuant to this subsection is provided to safeguard the interest of the city in obtaining the objective and purposes of this chapter, the constitutional rights of any lot user making an application for such a variance, and to avail both the lot user and the city of the benefit of judicial review pursuant to Cal. Civ. Proc. Code § 1094.5 governing administrative mandamus.

(d) Procedure Upon Conclusion of Variance Request. After the final action upon a variance request pursuant to subsection (b) or (c) of this section, the public works director shall promptly revise, as necessary, any determinations made in the application of the requirements of this chapter to the lot user making the variance request, and the lot user shall proceed, as necessary, to comply with the provisions of this chapter as the application thereof may have been varied by said final action. (Ord. 924 § 1, 9-12-72; amended during 2012 reformat. 1990 Code § 8-3115.)

12.10.170 Fees.

The city council may, by resolution, establish fees to be charged in connection with any determination, review, approval, variance, or inspection or other procedure established pursuant to the provisions of this chapter, in order to reimburse the city for costs and expenses incurred by the city in connection with the administration of this chapter as applied to particular lots and lot users subject thereto. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3116.)

12.10.180 Private streets and vehicular access ways.

Private streets and vehicular access ways approved by the city to serve the use of any lot shall be subject to the requirements of this chapter, except in regard to provision of right-of-way, to the extent such requirements may be made applicable to such private streets and vehicular access ways, subject to any special standards established therefor by the city council. (Ord. 924 § 1, 9-12-72. 1990 Code § 8-3117.)