On July 12, 2011, the City Council of the City of Chino Hills adopted a resolution approving Tentative Tract Map 16959 and adopting a Mitigated Negative Declaration and Mitigation Monitoring Program for the project. The tentative tract map subdivided the existing 6.64-acre property into 11 single-family residential lots, 2 open space lots, and 1 private street lot. While the approved project anticipated the future development of the tract with single-family residences, conceptual design plans for the development of the homes were not provided during the review of the tentative tract map. Condition of Approval No. 1 for TTM 16959 provides that the tentative tract map shall become null and void unless map recordation has taken place within thirty-six (36) months after its approval, July 12, 2014.
Starting in the mid 2000’s, a downturn in the residential market occurred that delayed the final map and ultimate construction of the approved project. This downturn affected development throughout the state of California, causing the state legislature to enact a series of statutes that automatically extended the expiration dates of valid tentative maps that met the criteria specified in each statue. Assembly Bill 116 was enacted on July 11, 2013 and extends the expiration date of any approved tentative map or vesting tentative map that was approved on or after January 1, 2000, and that had not expired as of the effective date of the legislation by twenty-four (24) months. TTM 16959 met this criteria and thus, the expiration date was extended to July 12, 2016.
On October 31, 2013, Everbright International acquired the property with the intent to develop single-family homes. Everbright International submitted a Tract Home Design Review application for the development of the property, which was reviewed and approved by the Planning Commission on November 3, 2015. The applicant also initiated the post entitlement process for the development of the property; street and utility improvement plans and rough grading plans were submitted to the City for review.
The Planning Commission approved a three-year extension of time (16EXT04) for TTM 16959 on June 21, 2016, extending the expiration date to July 12, 2019; the applicant requested the extension of time to ensure their ability to complete the City’s review and approval process for the final map package and ensure compliance with and the satisfaction of all applicable Conditions of Approval and the requirements of the Mitigation Monitoring Plan. For example, Mitigation Measure BIO-1 requires the developer to obtain appropriate permits from the U.S. Army Corp of Engineers, the California Department of Fish and Wildlife (formerly the Department of Fish and Game), and the Santa Ana Regional Water Quality Control Board. Coordination with these resource agencies is often a time consuming process that can take one or more years to complete.
On June 24, 2019, the applicant submitted a request for an additional three-year extension of time for TTM 16959. As part of the formal request, the applicant provided a letter summarizing the circumstances that have prevented the recordation of the final map within the previous three years and the steps taken to allow the project to move forward successfully if the requested extension is granted (Exhibit “B”). The applicant has indicated that previous efforts were hampered by problematic staffing, but to enable the project to proceed towards final map approval and initiate physical development of the project, the applicant is pursuing a joint venture with a firm more experienced in real estate development to facilitate the completion of the project in a more coordinated and timely fashion. The new project manager and development team anticipate initiating the rough grading of the project and obtaining approval of the final map within 18 months from the granting of the requested extension of time.
Updates to the Project Conditions of Approval
In considering Extension of Time 19EXT02, staff recommends that Condition of Approval No. 1 be revised to reflect the change in the expiration date and that Condition of Approval No. 27 be revised to clarify the payment of Quimby In-Lieu Fee and the Park and Recreation Facilities Fees prior to the issuance of building permits. The latter change regarding the fees merely reflects the fact that this applicant is not dedicating land for parks, so the fees will be due prior to issuance of building permits. The revisions to the previously approved conditions are shown in Exhibit “D”.
Planning Commission Review
The Planning Commission (Commission) conducted a public hearing to consider the applicant’s request for an extension of time for Tentative Tact Map 16959 on August 6, 2019.
A representative of the applicant addressed the Commission and discussed the circumstances that have prevented the project from moving forward since the approval of the tentative map and the measures currently underway to allow the project to proceed in a timely fashion moving forward.
Two residents of the surrounding community spoke during the public hearing. Brad Goldman expressed concerns regarding traffic safety and the line of sight for drivers on Pinnacle Road, the size of the lots relative to the surrounding developments, and environmental and fire considerations. Theresa Santos also expressed concern regarding traffic safety at the project’s entrance on Pinnacle Road.
The Commission discussed the concerns raised by the residents with staff and noted that these concerns were evaluated during the entitlement of the project and would be considered during the construction plan review process. The Commissioners discussed granting a reduced time extension to provide for a future review in the event that the project is unable to achieve forward progress within a reasonable time frame.
By a 4-0 vote (with Commissioner Hamamoto absent), the Planning Commission adopted a resolution approving Extension of Time 19EXT02 to grant a two-year extension to Tentative Tract Map 16959 rather than the three years requested by the applicant.
The Planning Commission Agenda Packet for the August 6, 2019, meetings were included in the Agenda packet for the Council's August 13, 2019, meeting and are incorporated into this staff report by this reference.
The City Council staff report for the project’s original approval in 2011 does not extensively discuss the alignment of the private street and its intersection with Pinnacle Road, but notes that “the City Engineer has determined that the proposed access meets City requirements.”
Following the August 6th Planning Commission meeting, Community Development and Engineering staff discussed the safety concerns pertaining to the project’s access. Engineering staff performed a field visit to the site at the request of Mr. Brad Goldman, who spoke at the hearing and expressed concern regarding the safety at this future intersection, to observe the existing conditions. Engineering staff met Mr. Goldman at the site and discussed Mr. Goldman’s concerns regarding vehicular visibility at the proposed location for the future intersection. Engineering staff did not observe any conditions that would create an unsafe situation once the private street is developed. Additionally, the final map and street improvement plans will be reviewed for safety concerns if the project moves forward.
A tree inventory and removal report was prepared as part of the original approval for the project and found that approximately 172 of the 365 existing trees on the site would be removed in the development of the project. The mitigation for these removals include the planting of replacement trees onsite or at an approved offsite location within the City. The mitigation measure also allows for the payment of an in lieu fee if a tree preservation and replacement policy was adopted by the City and in effect when grading of the project commences.
In 2012, the City Council adopted Ordinance No. 259, which established Chapter 16.90 (Tree Preservation) in the Chino Hills Municipal Code and instituted the City’s tree preservation and replacement program. Pursuant to the project mitigation measures and the City’s tree preservation program, the applicant is preparing an updated arborist report that will identify the number, size, and health of the existing trees onsite; identify the trees to be removed and those to be protected onsite; and determine the appropriate mitigation for the removal of protected trees. The updated arborist report will be reviewed by staff and the City’s consulting arborist for accuracy and conformance with the project’s mitigation measure and the City’s tree removal and replacement requirements.
GENERAL PLAN CONSISTENCY
The project site is designated as Low Density Residential on the General Plan Land Use Map and is zoned R-S Low Density Residential. The General Plan allows for a density of up to six dwelling units per acre in the Low Density Residential areas, and the proposed density for the project is 1.7 dwelling units per acre (du/ac). The project site is surrounded by low density residential uses, as designated on the General Plan Land Use Map, and the proposed new single-family residences are an appropriate use in the area. Furthermore, the proposed residential development complies with the applicable provisions of Title 16 of the Chino Hills Municipal Code, a tool used to implement the visions and policies of the General Plan. Therefore, the granting of Extension of Time 19EXT02 for TTM 16959 is consistent with the Chino Hills General Plan.
Pursuant to Gov. Code, § 66452.6, an approved tentative map may be extended by the City for a period or periods not exceeding a total of six years. With the proposed two-year extension, the map would be eligible for an additional extension of one year in 2021. The request for the map extension was filed before the expiration date.
Once a tentative map is approved, the City's discretion to deny an extension of the map exists, but is limited and involves only a determination of whether and what length of time to be granted. (El Patio v. Permanent Rent Control Bd
. (1980) 110 Cal.App.3d 915, 928, 168 Cal.Rptr. 276 [“[S]ection 66452.6 expressly permits an extension only as to ‘time.’") There is no provision which suggests that the City Council is to reconsider its original tentative tract map findings when granting an extension of time. Bodega Bay Concerned Citizens v. County of Sonoma
(2005) 125 Cal.App.4th 1061, 1068.
Also, in other contexts, courts have noted that “Once the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land. Consequently, it is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map. Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map”].) Also, Youngblood v. Board of Supervisors
(1978) 22 Cal.3d 644, 655–656, 150 Cal.Rptr. 242, 586 P.2d 556.
Therefore, in this matter, the City Council must consider whether there is good cause to extend the map for two years or some other period of time.
Regarding imposing conditions, the court in the El Patio
case held that a City cannot place a condition on a map extension but rather can only approve or deny it. (Specifically, in El Patio
, the court held that the city could not condition the applicant to an extension to comply with a rent control charter amendment that had been adopted after the city's approval of the tentative map.) The well-respected legal land use treatise “Longtin’s” has a persuasive analysis arguing that many believe the El Patio
case to be wrongly-decided because the general rule is that if a body has the ability to deny, it also has the ability to condition. Otherwise, this leads to an absurd result in which the City must deny the map extension, only to approve a very similar map with a new condition. That said, no court has disagreed with El Patio’s
holding in the last 40 years, so for now, the El Patio
holding is the controlling law and imposing a condition upon extension is not recommended. Finally, if imposed, such a condition could not be based on the original findings of approval of the tentative map, so such a condition could only be adopted for limited purposes, if at all.
Staff has analyzed the facts and recommends that the City Council adopt a two-year extension for the reasoning set forth below regarding Extension of Time 19EXT02.
A. FINDING: That good cause exists to grant the extension.
FACT: Given the representations the applicant has made in the Letter attached as Exhibit “B”, and the fact that the applicant is now pursuing a joint venture with an experienced real estate development firm to facilitate the completion of the project in a more coordinated and timely fashion, such that the applicant anticipates initiating the rough grading of the project and obtaining approval of the final map within 18 months, good cause exists to grant the requested extension of time.