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