Chapter 18.60
DEVELOPMENT AGREEMENTS
Sections:
18.60.040 Development agreement contents.
18.60.050 Negotiation of proposed development agreements.
18.60.070 Findings of consistency.
18.60.080 Recordation of executed agreement.
18.60.090 Regulations applicable to development.
18.60.100 Subsequently enacted state and federal laws.
18.60.130 Amendment or cancellation.
18.60.140 Miscellaneous provisions.
18.60.010 Purpose.
The purpose of this chapter is to:
A. Reduce the uncertainty in the approval of development projects that can result in a waste of resources that can escalate the cost of housing and other development.
B. Encourage the investment in and commitment to comprehensive planning in order to maximize the efficient utilization of resources at the least cost to the public.
C. Provide assurances to the applicant for a development project that, upon approval of the project, the applicant may proceed with the project in accordance with the terms and conditions of a negotiated development agreement, and subject to the conditions of approval adopted by the Planning Commission and City Council, as applicable.
D. Promote the timely financing and construction of adequate public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities prior to the development of new housing.
E. Increase the community benefit derived from new development beyond the level that can be achieved through the traditional land use regulatory process.
F. Allow greater flexibility and creativity in advancing the City’s land use policies.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.020 Authority.
This section establishes procedures and requirements for development agreements for the purposes specified in and as authorized by Article 2.5, Chapter 4, Title 7 of the Government Code, Section 65864 et seq. The Planning Commission may recommend and the City Council may, but is not required to, enter into a development agreement for the development of real property with any person having legal or equitable interest in such property, if a clear public benefit or public purpose can be demonstrated.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.030 Applications.
A. Authority for Adoption. An applicant for a development project may request that the City review the application as a development agreement application in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864 through 65869.5. In the event of any conflict between these statutory provisions and this section, the state statutes shall control.
B. Forms and Information. The applicant shall submit an application for a development agreement on a form prescribed by the Community Development Director. The Community Development Director shall identify submittal requirements for applications for development agreements. He or she may require an applicant to submit such additional information and supporting data as he or she considers necessary to process the application. An application for a development agreement shall be filed concurrently with the entire project entitlement package.
C. Fees. The applicant shall pay such fees and charges for the filing and processing of applications for development agreements and the administration of approved development agreements, including annual reviews, in amounts as may be established by resolution of the City Council.
D. Qualified Applicant. A qualified applicant shall have a legal or equitable interest in the real property which is the subject of the proposed development agreement. The Community Development Director shall require an applicant to submit proof of its interest in the real property and of the authority of any agent to act for the applicant.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.040 Development agreement contents.
A. Development agreements shall include terms relating the following:
1. The duration of the agreement;
2. The permitted uses of the property;
3. The density or intensity of use;
4. The maximum height, size and location of proposed buildings;
5. The reservation or dedication of land for public purposes to be secured, including, but not limited to, rights-of-way, open space preservation, and public access easements;
6. The time schedule established for periodic review as required by Section 18.60.120; and
7. A description of the project’s benefits to the community.
B. Development agreements may include additional terms, conditions and restrictions in addition to those listed in subsection A of this section, including, but not limited to:
1. Development schedules providing that construction of the proposed development as a total project or in phases be initiated and/or completed within specified time periods;
2. The construction of public facilities required in conjunction with such development, including but not limited to vehicular and pedestrian rights-of-way, public art and other landscape amenities, drainage and flood-control facilities, parks and other recreational facilities, sewers and sewage treatment facilities, sewer lift stations, and water well and treatment facilities;
3. Method of financing such improvements and, where applicable, reimbursement to developer or City;
4. Prohibition of one (1) or more uses normally listed as permitted, accessory, subject to review or subject to conditional use permit in the zone normally allowed by right;
5. Limitations on future development or special terms or conditions under which subsequent development approvals not included in the agreement may occur;
6. The requirement of a faithful performance bond where deemed necessary to and in an amount deemed sufficient to guarantee the faithful performance of specified terms, conditions, restrictions and/or requirements of the agreement. In lieu of a bond, the applicant may deposit with the City Clerk certificates of deposit or other security acceptable to the City Attorney;
7. Specific design criteria for the exteriors of buildings and other structures, including colors and materials, landscaping and signs;
8. Special yards, open spaces, trails, staging areas, buffer areas, fences and walls, public art, landscaping and parking facilities, including vehicular and pedestrian ingress and egress;
9. Performance standards regulating such items as noise, vibration, smoke, dust, dirt, odors, gases, garbage, heat and the prevention of glare or direct illumination of adjacent properties;
10. Limitations on operating hours and other characteristics of operation which the City Council determines could adversely affect the reasonable use and enjoyment of surrounding properties.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.050 Negotiation of proposed development agreements.
The City Manager and/or his/her designee(s) shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council. The City Council may, but need not, appoint a subcommittee of the City Council to provide direction to the City Manager during the negotiation process.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.060 Hearings.
A public hearing on an application for a development agreement shall be held by the Planning Commission and by the City Council. Notice of intention to consider adoption of a development agreement shall be given as provided in Government Code Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.070 Findings of consistency.
A. A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum.
B. A development agreement shall not be approved unless the City Council finds that the provisions of the agreement are consistent with the General Plan and any applicable specific plan.
C. A development agreement that includes a subdivision, as defined in Government Code Section 66473.7, shall not be approved unless the agreement provides that any tentative map prepared for the subdivision will comply with the provisions of Section 66473.7.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.080 Recordation of executed agreement.
No later than ten (10) days after the execution of a development agreement by the City, the City Clerk shall record with the county recorder a copy of the agreement, which shall describe the land subject thereto. The City shall not execute a development agreement until the ordinance approving the development agreement has become effective. From and after the time of such recordation, the agreement shall impart such notice thereof to all persons as is afforded by the recording laws of this state. The burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.090 Regulations applicable to development.
Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications applicable to development of the property subject to a development agreement shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent the City, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.100 Subsequently enacted state and federal laws.
In the event that state and federal laws or regulations enacted after execution of a development agreement prevent or preclude compliance with one or more provisions of such agreement, the provisions of such agreement shall be deemed modified or suspended to the extent necessary to comply with such laws or regulations.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.110 Enforceability.
Unless amended or canceled pursuant to Section 18.60.130, or modified or suspended pursuant to Section 18.60.100, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the City, which alters or amends the rules, regulations, or policies specified in Section 18.60.090.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.120 Annual review.
A. Time for and Initiation of Review.
1. The Community Development Director shall review each approved development agreement at least once a year during the term of the agreement, at which time the applicant shall be required to demonstrate good faith compliance with the provisions of the development agreement.
2. The applicant shall initiate the required annual review by submitting a written request at least sixty (60) days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the Community Development Director to demonstrate good faith compliance with the provisions of the development agreement. The burden of proof by substantial evidence of compliance is upon the applicant.
B. Finding of Compliance. If the Community Development Director, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the Community Development Director shall issue a written finding of compliance.
C. Finding of Noncompliance.
1. If the Community Development Director finds the applicant has not complied with the provisions of the development agreement, the Community Development Director shall issue a finding of noncompliance which shall be recorded by the City with the county recorder after it becomes final. The Community Development Director shall specify in writing to the applicant the respects in which applicant has failed to comply, and if appropriate, shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance.
2. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or modification pursuant to Section 18.60.130(B).
D. Appeal of Determination. Within ten (10) days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the Community Development Director and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.130 Amendment or cancellation.
A. Cancellation or Modification by Mutual Consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in Sections 18.60.060 and 18.60.070. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the City Manager.
B. Termination or Modification after Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the City Manager may refer the development agreement to the City Council for termination or modification. The City Council shall conduct a public hearing. After the public hearing, the City Council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.
C. Rights of the Parties after Cancellation or Termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)
18.60.140 Miscellaneous provisions.
A. Interpretation. This section governs the interpretation of any development agreement approved under this chapter.
B. Enforcement of a Development Agreement. The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are nonexclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.
C. Severability Clause. Should any provision of this section or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this section and the development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in the development agreement.
D. Judicial Review - Time Limitation.
1. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure; and judicial review of any City action taken by the City pursuant to this section, other than initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.
2. Any action or proceeding to attack, review, set aside, void or annul any decision of the City taken pursuant to this section shall not be maintained by any person unless the action or proceeding is commenced within ninety (90) days after the effective date of the decision.
E. Notice Requirements. The notice requirements contained in Section 18.60.060 are directory and not mandatory. The failure of any person to receive notice required by law or this section does not affect the authority of the City to enter into a development agreement.
F. Irregularity in Proceedings. No action, inaction, or recommendation regarding a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission (“error”) as to any matter pertaining to the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained was prejudicial and that by reason of the error, the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is not a presumption that an error is prejudicial or that injury was done if an error is shown.
(Ord. 2015-05, Repealed and Replaced, 06/16/2015)