Chapter 9.85 of the Subdivision Code may be cited as the City of Mission Viejo Local Park Code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The Local Park Code is adopted pursuant to the Government Code § 66477, the police power, the power to zone and the power to implement the conservation/open space element of the general plan. The general purposes and objectives of the Local Park Code are:

(a)

To preserve, enhance and improve the quality of the physical environment of the City of Mission Viejo.

(b)

To provide a procedure for the acquisition and development of local park facilities.

(c)

To secure for the citizens of Mission Viejo the social and physical advantages resulting from the provision of orderly park, recreation and open space facilities.

(d)

To establish conditions which will allow parks and recreation areas to be provided and to exist in harmony with surrounding and neighborhood land uses.

(e)

To ensure that adequate park and recreation facilities will be provided.

(f)

To ensure that park and recreation facilities are provided and maintained in a manner that will permit their maximum use and enjoyment by the residents of the surrounding areas.

(g)

To provide regulations requiring five usable acres having a grade not exceeding two percent or the proportionate share thereof for each 1,000 persons residing within the city be supplied by persons proposing residential subdivisions. Notwithstanding the above, however, the planning commission may accept land not meeting the two percent gradient standard where the planning commission finds that extraordinary or extenuating circumstances warrant an exception.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

For the purpose of this chapter, the following definitions shall apply:

(1)

Park. A parcel, or contiguous parcels, of land which is owned, operated and maintained by a public agency or which is a privately owned and/or operated and maintained which has been approved for local park credit under this code and which provides recreational land and facilities for the benefit and enjoyment of the residents and visitors of Mission Viejo.

(2)

Person. Any individual, firm, copartnership, joint venture, association, club, trust, receiver, syndicate, this and any other county, city and county, municipality, district or other political subdivision, or any other group or combination acting as a unit.

(b)

Unless otherwise specifically defined in this chapter, all definitions of the Development Code and the Subdivision Code are applicable to this code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

In all matters pertaining to local parks, the Local Park Code shall take precedence over all other ordinances or resolutions adopted by the city council, subject to the following provisions:

(1)

The provisions of the Local Park Code shall not be construed to repeal, amend, modify, impair, annul or otherwise interfere with any other existing article, ordinance, easement, deed restriction, covenant or other agreement between parties or any part thereof not specifically repealed, amended, modified, or annulled herein, except that where this code imposes greater limitations or requirements on the use of land, or greater parks and open spaces, or larger areas or dimensions, or larger fees than the limitations or requirements imposed by any other article, ordinance, easement, deed restriction, covenant or agreement on the same premises or property, this code shall control.

(2)

Nothing in this code shall be construed to authorize the use of any premises or property in violation of this or any other applicable article, statute, ordinance or regulation.

(b)

Whenever reference is made to any portion of this code, the reference applies to all amendments and additions now or hereafter made.

(c)

In the event any uncertainty exists as to the meaning or intent of any of the provisions or requirements of this code, it shall be the duty of the director of community development to make a determination regarding such meaning or intent; such determination shall be that which best carries out the purposes and objectives of this code as set forth in section 9.85.010.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The city council hereby declares that it is the duty and the responsibility of the residents of Mission Viejo and of all levels of governments, including special districts, to preserve and enhance the quality of the physical environment and further, that it is the duty and the responsibility of the city to provide local park facilities.

(a)

It is the responsibility of each person who proposes to establish a dwelling unit or units, or to increase the number of dwelling units, on his property, and of each person who proposes to create residential building sites, to provide an equitable portion of the necessary park lands as required by this code.

(b)

It is the responsibility of the planning commission to approve all local park dedications, modifications and park implementation plans in accordance with the requirements of this code and after review and recommendation by the subdivision committee.

(c)

It is the duty of the director of community development to verify that the requirements of this code are complied with, and to notify all interested parties and agencies of such compliance.

(d)

It is the duty of the city building official to enforce the provisions of this code that are applicable to the issuance of building permits and certificates of occupancy.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

All park land provided and all fees paid shall be used to provide local park benefits for future residents of the area from which the park land or park fees are derived.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

All park fees paid pursuant to this chapter and interest accrued from such fees to the city shall be used to provide for acquiring and developing new parks or rehabilitating existing parks or recreational facilities to serve the subdivision and shall be deposited in a special account reserved for such purposes. Such fees may also be used for the purposes described in Government Code § 66477.5.

All park fees paid pursuant to this chapter and interest accrued from such fees to the city shall be used for the purposes set forth in section 9.85.010 and shall be deposited in a separate account reserved for such purposes.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Any person may appeal a determination of the subdivision committee regarding the interpretation or implementation of this code. Any such appeal shall be addressed to the planning commission and shall be filed in duplicate with the director of community development within ten calendar days from the date of such determination.

(b)

The appeal shall set forth specifically where the determination of the subdivision committee fails to conform to the requirements of this code, or other applicable law, or wherein the conditions imposed are improper.

(c)

The director of community development shall bring the matter before the planning commission for hearing within 30 days after the date of filing the appeal. The person and appellant, if other than the person, shall be given at least ten days notice of the planning commission's hearing.

(d)

The planning commission may affirm, reverse or modify any determination of the subdivision committee and may make such findings as it deems appropriate. If only one or a limited number of conditions are being appealed, the planning commission need not limit its review to those specific conditions buy may review the whole action taken by the subdivision committee. The planning commission shall render its decision on the appeal within seven days of the conclusion of its hearing.

(e)

An appeal, once filed, may be withdrawn only with the consent of the planning commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Any person may appeal a determination of the planning commission regarding the interpretation or implementation of this code. Any such appeal shall be addressed to the city council and shall be filed in duplicate with the city clerk within ten calendar days from the date of such determination.

(b)

The appeal shall set forth specifically where the determination of the planning commission fails to conform to the requirements of this code, or other applicable law, or wherein the conditions imposed are improper.

(c)

The director of community development shall report the filing of the appeal to the planning commission at its next regular meeting. The planning commission may made a report to the city council for its consideration in determining the appeal of any observations or facts regarding such determination which would answer the statements set forth in the appeal. The director of community development shall transmit to the city clerk such report, together with such reports in the matter as possessed by the planning commission.

(d)

The city council shall consider the appeal at a regular meeting within 30 calendar days following the receipt by the city clerk or within such time as the council shall continue the matter.

(e)

Notice of the time and place the city council will consider the appeal shall be mailed to the applicant, and to the person who filed the appeal (if other than the applicant), and shall give at least ten days notice.

(f)

The city council may, at a regular meeting, affirm, reverse or modify, in whole or part, any determination of the planning commission from which an appeal has been taken under this section. The resolution shall include such express findings of fact or such observations, if any, as any member or members of the city council fails to pass such a resolution within 30 calendar days following the receipt by the city clerk of the duplicate copy of the appeal, or within such time as the council continued the matter, such failure shall be deemed an affirmation of the determination of the planning commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Requests for refunds of park fees paid or release of security instruments may be directed to the director of community development at any time. The director may approve a refund or a partial refund of park fees paid or release of security instruments when he has verified:

(1)

That the refund amount requested corresponds to the amount of fees actually deposited in the local part trust fund for a given number of dwelling units; and

(2)

That the local park requirement for the dwelling units in question had been met by actual council acceptance of park land, or by an irrevocable recorded offer to dedicate a park land on a final tract map or parcel map; or

(3)

The subdivision or building permit approval for which fees were required has been withdrawn or is otherwise no longer valid.

Requests that do not comply with above criteria (1) and (2) or (3) shall be denied by the director. Appeals from the decision of the director shall be first to the planning commission as described in section 9.85.040, and then to the city council as described in section 9.85.045.

When the director of community development approves a refund, he shall request a warrant from the director of administrative services, citing in his request the council resolution accepting the park land, or the tract, book and page number in the case of a recorded offer to dedicate land. In the case of release of a security instrument, he shall request such release from the city clerk.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any person may apply for a modification of the methods used in fulfilling requirements of this code.

(a)

Each application for a modification shall be in writing and shall state specifically the exact requirement that is requested to be modified, and the applicant's reasons for requesting such a modification.

(b)

Each application for a modification shall be filed with the director of community development.

(c)

The planning commission shall hold a public meeting for the purpose of hearing the modification request. Such meeting shall be set for a date not later than 30 days subsequent to the filing of the application.

(d)

Modifications of the methods used in complying with requirements of this code may be approved only when the planning commission makes a determination that the future residents of the subject property will be better served by the approval of the modification. If there is a determination that the future residents will not be better served, the planning commission shall disapprove the application.

(e)

The determination of the planning commission shall become final after an appeal period of 14 calendar days from the date of such determination, unless an appeal is filed within that period, in compliance with the regulations of section 9.85.040.

(f)

A park implementation plan may serve as a master park modification.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any person who proposes to divide real property for the purpose of creating a residential subdivision or a parcel map for residential use shall pay a park fee or provide park land in accordance with the requirements of this subarticle.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The requirements of this subarticle shall be complied with by the provision of park land, as approved by the planning commission, the payment of park fees, or by a combination of both. Provision of park land shall not be required for parcel maps or subdivisions containing 50 parcels or less; except that when a condominium project, stock cooperative or community apartment project exceeds 50 dwelling units, dedication of land may be required notwithstanding that the number of parcels may be less than 50. Whenever a person proposes to provide park land, such person shall comply with the requirements of section 9.85.090.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

When the requirements of this code are complied with solely on the basis of dedicating park land, the amount of land to be provided shall be computed by multiplying the number of proposed dwelling units by the park land acres per dwelling unit in accordance with the appropriate density classification in the following table:

In the event the area to be dedicated is bounded or abutted by existing or proposed street frontage, the subdivider shall, at the time of approval of the tentative map, obligate himself by condition to said map to provide curbs, gutters, sidewalk, drainage facilities, street lighting, stop lights, street signs, matching pavement and street trees to full city standards, to stub-in requested standard improvements required for residential property plus initial on site grading required for developing the park facility; provided, however, that, with the approval of the planning commission or city council, whichever acts last on the tentative map, and in lieu of making said improvements, the subdivider may pay a sum as estimated by the director of public works sufficient to cover the cost of said improvements.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

(a)

Whenever the requirements of this code are met solely on the basis of the payment of park fees, the amount of such fees shall be computed by multiplying the number of proposed dwelling units by the park land acres per dwelling unit shown in the table of section 9.85.070, and by multiplying the resultant acreage amount by the land value of the land being developed, per acre.

(b)

The land value shall be based on the average per acre value of the property to be subdivided at the time of recording the final subdivision map, adjusted to reflect the value of such an acre of property rough graded to a maximum one percent slope. Fair market value shall be determined as of the date on which the parcel or final map is filed.

(c)

Land value initially shall be determined by negotiations between the director and the subdivider. If these negotiations are unsuccessful, the land value shall be determined by a Member of the Appraisal Institute (MAI) mutually agreed upon by the director and the subdivider. The subdivider shall pay for the cost of the appraisal. The subdivider shall select the appraiser from a list of three provided by the director.

(d)

In addition to the fee to be paid in lieu of land dedication, the subdivider shall also pay an amount equal to 20 percent of the in-lieu fee to provide curbs, gutters, drainage facilities, street lighting, stop lighting, stop lights, sidewalks, street signs, matching pavement and street trees to full city standards, stubbing in of requested utility line services to the park facility, and all standard improvements required by the city for residential subdivisions.

(e)

Where the director and the subdivider so agree, all or part of the in-lieu fee and any additional improvement fee may, instead of being paid in cash, be paid by making improvements of equivalent value to existing or projected parks either inside or outside of the subdivision. Such improvements shall be provided for by an improvement agreement and improvement security approved by the city attorney.

(f)

Following recommendations received from the community services commission and the planning commission, the city council may modify by resolution the above procedure for determining land value.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Whenever the requirements of this code are complied with by both the provision of park land and payment of park fee, the amount of the park fee shall be computed by determining the required amount of park land in accordance with the provisions of section 9.85.070 and subtracting the amount of park land actually provided. The remainder shall be converted to a fee in accordance with the provisions of section 9.85.075.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

If the person is required to provide dedicated park land and provides park and recreational improvements to the dedicated land, pursuant to a development plan approved by the city, the value of the improvements together with any equipment located thereon shall be a credit against the payment of fees or dedication of land required by this code. Value of such improvements shall be at cost to the developer.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Any person meeting either all or part of the requirements of this code by providing park land shall comply with the following requirements:

(a)

If the proposed park land is within or contiguous to the boundary of a tentative tract or parcel map, it shall be shown on the tentative tract or parcel map.

(b)

If the proposed park land is outside the boundary of the tentative tract or parcel map, it shall be shown on a separate map accompanying the tentative tract map or shall be consistent with an approved park implementation plan.

(c)

If the planning commission makes a determination that the future residents will be better served by the establishment of a park in a different location that proposed by the person, it may require the person to pay a park fee for all or part of the required park land, and the amount of park land required to be shown on the tentative map shall be reduced by an equivalent amount.

(d)

Any proposal to provide park land on real property zoned for multiple residential uses shall include a statement on the face of the map specifying the number of proposed dwelling units, and the amount of park land required shall be computed on the basis of the number of dwelling units shown on the face of the map. If the number of building permits for dwelling units exceeds the amount proposed on the face of the tentative map, an appropriate park fee in accordance with the requirements of section 9.85.075 shall be paid for the additional dwelling units or additional acreage dedicated.

(e)

Each proposal to provide park land shall be required and a determination made by the director of community development as to compliance with the regulations, standards and criteria specified by this code and the conservation/open space element of the general plan. The director shall report all findings to the planning commission. All park land shown on a tentative tract or parcel map or a subdivision of land shall be recorded on a final tract map or a parcel map. Such map shall include an offer of dedication to the City of Mission Viejo.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Park fees shall be approved by the planning commission. The amount of park fees shall be computed in accordance with the provisions of section 9.85.075, based on representative land value of the land being developed at the time the building permits are issued. Fees shall be paid prior to issuance of building permits or at such time as otherwise provided by resolution of the city council.

Any approval of the payment of park fees shall be made by the planning commission prior to or concurrently with the approval of the tentative map, and such approval shall be shown on the face of the tentative map and by conditions of approval.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

If any person proposes to change the amount of the park land or the payment of the park fee, or the size, shape, location, terrain or improvements of the park shown on an approved tentative tract map, or tentative parcel map, such change shall be deemed to be a revision of the tentative tract map or tentative parcel map, and shall require the filing of a new or revised map.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

All required local park land provided in compliance with this code shall comply with the standards and criteria contained in the conservation/open space element of the general plan.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Whenever a person proposes to build, place, or otherwise establish a dwelling unit or units on a building site or sites created prior to June 29, 1971 or proposes construction of a new residential condominium project, stock cooperative or community apartment exceeding 50 dwelling units, no local park fees having been paid nor park land dedicated on behalf of such sites, such person shall pay a park fee in an amount determined pursuant to section 9.85.075, prior to issuing building permits.

(Ord. No. 98-193, §§ 1—4, 10-19-98)