DATE:
December 20, 2022
TO:
Mayor and Council Members
FROM:
Nils Bentsen, City Manager
BY:
Rachel Molina Assistant City Manager
Ryan Leonard, Senior Planner
SUBJECT:
Appeal to the City Council (APP22-00005); Applicant NV Hesperia Investors & Dayco Funding Corporation; APNs: 0405-261-15 thru 18 & 27 thru 30)
RECOMMENDED ACTION
It is recommended that the City Council adopt Resolution No. 2022-84, denying appeal APP22-00005 and upholding the Planning Commission and Development Review Committee (DRC) denial of a third extension of time for Tentative Tract No. 17916 (TTE22-00006).
BACKGROUND
Proposal: On November 8, 2022 the Planning Commission voted 2-1 (Commissioner’s Bartz and Dunbar were absent; Commissioner Steeno abstained) to uphold the DRC’s denial for a second extension of time for TT-15033. The Planning Commission denied the extension of time for the reasons that are listed below in this staff report. Although the applicant is requesting that the City Council grant this appeal to overturn the Planning Commission’s denial, the City Council is precluded from granting a discretionary extension of time.
Current General Plan, Zoning and Land Uses: The project is located on the southwest corner of Mojave Street and Topaz Avenue. The site is within the Low Density Residential (LDR) zone of the Main Street and Freeway Corridor Specific Plan. The surrounding land is designated as noted on Attachment 1. The property is currently vacant. Single-family residences exist to the north and to the west of the project. The properties to the south and to the east are vacant (Attachment 2).
Project Approval Timelines:
On July 9, 2009, the Planning Commission approved TT-17916 to subdivide 40 gross acres into 177 single-family residential lots and a variance to eliminate the 500 square foot common open space per lot requirement. The Small Lot Subdivision Ordinance requires a minimum lot size of 4,500 square feet. The smallest lot within the subdivision is 4,998 square feet, the average lot size is 6,114 square feet, and the largest lot is 12,388 square feet in area. Approximately 12% of the lots are over 7,200 square feet. TT-17243 was approved for 3 years and was set to expire on July 21, 2012.
In 2011 and 2013 the California Legislature passed assembly bills automatically extending the expiration dates of tentative maps. These automatic extensions amounted to 4 years of automatic State extensions for TT-17916. The automatic extensions are in addition to multiple City discretionary extensions that are allowed by the Subdivision Map Act. The Subdivision Map Act allows the City to extend a tentative tract map for a maximum of 6 total years. The 6 years is a cumulative total, and the extensions of time may be broken up into multiple increments.
On May 18, 2016, the DRC approved the first extension of time for TT-17916 that extended the tract for an additional 3 years..
On May 15, 2019 the DRC approved a second extension of time for TT-17916 that extended the tract for an additional 18 months. Table 1 provides the chronological order of the entitlements for this project.
In 2020 the California Legislature passed Assembly Bill AB-1561 that granted an 18-month extension to residential entitlements that were otherwise due to expire before the end of 2021. AB-1561 was enacted as a result of the ongoing economic and administrative challenges created by the Covid-19 pandemic. Table 1 provides the chronological order of the entitlements for this project.
Table 1: Timeline of the Project Entitlement
Land Use Entitlement Activity
Approval Date
Effective Date
Denial Date
Expiration Date
Length of Extension
Tentative Tract No. 17916
07/09/2009
07/21/2009
07/21/2012
-
Assembly Bill 208; AB-116
4 years of automatic State extensions
07/21/16
4 years
TTE16-00007
05/19/2016
07/21/2019
3 years
TTE19-00002
07/10/2019
01/21/2021
18 months
Assembly Bill 1561
18-month automatic State extension
07/21/2022
18 months
ISSUES/ANALYSIS
In April of 2020, the applicant submitted grading plans and improvement plans to the Engineering Division for plan check. The grading plan and improvement plans were reviewed and returned to the applicant on 5 separate occasions, with each plan check containing various corrections. In August of 2022 the 5th plan check was returned to the applicant and there were no additional plan check corrections. However, consistent with the conditions of approval, the applicant was required to provide bonds and a subdivision improvement agreement to the City prior to the August, 21, 2022 expiration date. The applicant did not submit the required bonds to the City and staff subsequently informed the applicant that TR-17916 was determined to have officially expired.
On August 19, 2022, the applicant submitted an application for an extension of time. On September 7, 2022, the Development Review Committee denied the extension (Attachment 3) on the basis that the request was in conflict with Measure N. Ballot Measure N was approved by City voters in November 2020. Measure N made changes to the City General Plan, Main Street and Freeway Corridor Specific Plan, and City Municipal Code. Among other things, Measure N modified City Municipal Code Section 17.08.040 (E) to state that “no extensions of time are allowed for residential subdivisions.” Measure N was approved by a majority of voters and therefore may only be amended by a subsequent ballot measure. As a result, there is no mechanism in the Development Code that authorizes an approval process for any extensions of time. Furthermore, the Development Code may not be modified to allow for such an approval process.
It’s important to point out that while the City Council does not have the authority to approve a discretionary extension of time, the City Council is authorized under Government Code Section 65864 to enter into a development agreement that could extend the life of the tract. However, the applicant has not submitted an application for a development agreement. Furthermore, development agreements are customarily considered as part of the land use entitlement application at the time when the project is initially approved, not 13 years after the original approval. In addition, approving a development agreement for this purpose would set a questionable precedent and would be inconsistent with Measure N.
CONCLUSION
The City Council does not have the authority to approve a discretionary extension of time. The City Council must uphold the Planning Commission’s denial of a third extension of time for Tentative Tract No. 17916.
ALTERNATIVE(S)
Provide alternative direction to staff.
ATTACHMENTS
Resolution No. 2022-84
Planning Commission Staff Report with Attachments
In prior correspondence to the applicant staff incorrectly stated that the expiration date was August 21, 2022. When staff was made aware of the issue it was determined that the City would honor the August 21, 2022 expiration date.
City of Hesperia STAFF REPORT City of Hesperia STAFF REPORT City of Hesperia
STAFF REPORT
City of Hesperia
STAFF REPORT
Staff Report to the City Council
APP22-00005
December 20, 2022