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HomeMy WebLinkAbout37-City Attorney '~ITY OF SAN BEA-r4ARDINO - MEMORANDUI". To Hon. Mayor and Common Council From Ralph H.prince City Attorlwy Date November 5,1986 Subject Continuee! It'~m No. 40, Agene!a of 11/3/86, Waiver of Cone!itions for P3rg91 M3p Mo. QQJ9 Approved Date 7DD.l This agenda item was continued from the meeting of November 3, 1986, in order to resolve conditions unacceptable to the subdivie!er. The City Attorney was directed to provide a legal opinion concerning alternative number 3 which related to deeds containing covenants that the owners agree not to protest the creation of a future assessment district for undergrounding utilities. A memorandum from John F. Wilson, Deputy City Attorney, to Ray Schweitzer, Acting City Administrator, dated October 22, 1986, was attachee! to the agenda of November 3, concluding that alternative number 3 is unenforceable and should not be adopted. Councilman Hernandez has suggested that the present owners by acceptance of the deed could consent to the creation of an assessment district or a Millo-Roos district for the assessment of the properties for the improvements. At the outset it should be noted that San Bernardino Municipal Code Section l8.44.020 requires that improvement security be one or more of the following: "(1) a deposit or deposits made with the City of money or negotiable bonds of the kind approved for securing deposits of public moneys; (2) a bone! or bonds by one or more duly authorized corporate sureties; (3) an instrument or instruments of credit from one or more financial institutions subject to regulation by the state or federal government pledging that the funds necessary to meet the performance are on deposit and guaranteed for payment and agreeing that the funds designated by the instrument shall become trust funds for the purposes set Eorth in the instrument." The San Bernardino Municipal Code does not permit other types of improvement security to be filed. Therefore, since (.ry ON rHI::MDV=- .~".,./ ~'I, alte~native 3 is intented to be used as an improvement security and the subdivider desires thaf the final map be recorded for the purposes of effectuating a sale of the property, alternative 3 would not be in compliance with Section l8.44.020. A covenant running with the land could not impose upon the purchaser an improvement requirement by an assessment district without the consent of such purchaser at the time of the conveyance of the property. There is a serious question whether subsequent purchasers, assignees or successors in interest could be required to waive the{r right to protest at quasi-judicial hearings involving the assessment district. You might desire to consider implementing Government Code Section 66499(5) which permits a different type of improvement security for subdivisions as follows: "(5) Any form of security, including security interests in real property, which is acceptable to the local agency and specified by ordinance thereof." This type of improvement security interest in real property would have to be implemented by an amendment of San Bernardino Municipal Code Section lR.44.020. You should take into consideration that a second deed of trust or other inte~est in real property would be inadequate secu~ity when the real prope~ty is substantially indebted because the first deed of trust has a priority position in foreclosu~e proceedin'Js. -.(;/,:$ t... '7.-/, /; :-.(. RALPH H. PRINCE City Attorney cc City I\dministrato~ Director of Public Works/City Engineer Planning oi~ector Superintendent of Building & Safety Director of Public Services