Chapter 15.45
DEVELOPMENT AGREEMENTS

Sections:

15.45.010    Purpose.

15.45.020    Development Agreement Required.

15.45.030    Application and Fees.

15.45.040    Contents.

15.45.050    Public Hearing—Notice.

15.45.060    Findings.

15.45.070    Amendment/Cancellation.

15.45.080    Periodic Review.

15.45.090    Local Coastal Programs.

15.45.100    Recordation.

15.45.010 Purpose.

The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of the project and discourage investment in, and commitment to, comprehensive planning.

Assurance that an applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. The ordinance codified in this chapter is adopted in part pursuant to the provisions of Section 65864 et seq. of the Government Code of the State of California. (Ord. 82-30 § 1 (part), 1982)

15.45.020 Development Agreement Required.

A.    Development agreements shall be required in conjunction with City approval of the following development projects:

1.    Projects for which a development agreement is required per General Plan policy; or

2.    Projects that require a General Plan amendment, Zoning Code amendment or other legislative act and that have one or more of the following characteristics:

a.    Include the development of fifty (50) or more residential units,

b.    Include residential development in the Mariners’ Mile corridor, as this geographic area is described in the General Plan Land Use Element,

c.    Include new non-residential development in Statistical Area L1 (Newport Center), Statistical Area L3 (North Ford Area), or Statistical Area L4 (Airport Area).

B.    Notwithstanding the provisions of Section 15.45.020(A), a development agreement shall not be required for a project that includes remodeling of existing building floor area, without the addition of new floor area.

C.    The City Council may waive the requirement for a development agreement, except for one required by General Plan policy, if it finds that the legislative act is of a minor nature, the project provides significant public benefits to the City, or the nature of the project is such that neither the City nor the developer would benefit from a development agreement. (Ord. 2007-6 § 1 (part), 2007)

15.45.030 Application and Fees.

A.    Application. The process for the consideration of a development agreement shall be initiated upon the filing of an application therefor, by or on behalf of the property owner or other person having a legal or equitable interest in real property located within the municipal boundaries of the City, or real property to be annexed to the City of Newport Beach. Application forms shall be provided by the Community Development Department. The application for consideration of a proposed development agreement shall be accompanied by a copy of the proposed development agreement containing all of the provisions required by the ordinance codified in this chapter, and the applicant shall provide such other information with respect to the proposed project as may be required by the Community Development Director.

B.    Fees. The City Council shall establish a reasonable fee for processing the application for consideration of a development agreement by resolution of the City Council. (Ord. 2013-11 § 115, 2013; Ord. 2007-6 § 1 (part), 2007; Ord. 87-14 § 1, 1987: Ord. 82-30 § 1 (part), 1982)

15.45.040 Contents.

A development agreement shall specify the duration of the agreement. The development agreement shall specify the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes, if any reservation or dedication is required by the City of Newport Beach. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary action shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The development agreement may provide that construction be commenced within a specified time, that the project be completed within a specified time, and/or may provide for construction to be accomplished in phases. The development agreement may contain such other provisions as may be considered necessary or proper by the City Council to further legitimate City interest or to protect the public health, safety and welfare so long as such terms are not inconsistent with the provisions of state law relating to development agreements, nor inconsistent with the ordinances, policies, plans or resolutions of the City of Newport Beach. (Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)

15.45.050 Public Hearing—Notice.

A public hearing on an application for a development agreement shall first be held by the Planning Commission and then by the City Council. Notice of intention to consider the adoption of a development agreement shall be given as provided in Sections 65090 and 65091 of the California Government Code in addition to such other notices that may be required by law or ordinance for actions considered concurrently with the development agreement. (Ord. 2007-6 § 1 (part), 2007; Ord. 95-29 § 10, 1995: Ord. 82-30 § 1 (part), 1982)

15.45.060 Findings.

Unless otherwise provided by the development agreement, the ordinances, rules, plans and policies of the City of Newport Beach which govern permitted uses of land, the density of development, and the design, improvement and construction standards and specifications, applicable to development of the property subject to the development agreement, shall be those ordinance rules, plans and policies in force at the time of execution of the agreement. A development agreement shall not prevent the City of Newport Beach 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 in the agreement, nor shall a development agreement prevent the City of Newport Beach from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations and policies. (Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)

15.45.070 Amendment/Cancellation.

Development agreements shall only be used after careful consideration since they can limit authority of future City Councils to react to changed conditions.

A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Notice of intention to amend or cancel any portion of the agreement shall be given in the manner provided by Section 65867 of the Government Code. An amendment to a development agreement shall be subject to the provisions of Section 65867.5. In the event that State or Federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. (Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)

15.45.080 Periodic Review.

A.    The City shall periodically review the development agreement and the activity conducted pursuant thereto to determine whether the applicant or successor in interest has complied with the terms of the agreement. This review shall be conducted by the Zoning Administrator at least once every twelve (12) months from the effective date of the agreement, unless the development agreement provides for a different review, in which case the development agreement’s schedule for review shall prevail.

B.    Notice of the Zoning Administrator’s review of the development agreement shall be given in the same manner as set forth in Section 15.45.050. At the public hearing the applicant or successor in interest shall have the burden of demonstrating good faith compliance with the terms and conditions of the development agreement.

C.    If at the completion of his/her review the Zoning Administrator determines that all of the terms and conditions of the development agreement have been met, no further review shall be required. If the Zoning Administrator does not make such determination, he/she shall refer the periodic review to the City Council pursuant to subsection (D) of this section.

D.    The Zoning Administrator may refer any periodic review to the City Council for review and action at a public hearing. Notice of the City Council’s review of the development agreement shall be given in the same manner as set forth in Section 15.45.050. At the public hearing the applicant or successor in interest shall have the burden of demonstrating good faith compliance with the terms and conditions of the development agreement.

E.    If, following a public hearing, the City Council finds and determines on the basis of substantial evidence that the applicant or its successor in interest has not complied in good faith with the terms and conditions of the development agreement, the City Council may state its intention to amend or cancel in whole or in part the development agreement. Any amendment and/or cancellation shall be subject to the notification and procedural provisions of Section 15.45.070.

F.    Any interested party may appeal the Zoning Administrator’s determination under subsection (C) of this section to the City Council by filing an appeal with the City Clerk, on forms provided by the Clerk, within fourteen (14) days following the date the determination was rendered. An appeal shall be accompanied by the filing fee identified in the City’s master fee schedule. A member of the City Council, in their official capacity, may call for review the Zoning Administrator’s determination under subsection (C) of this section for the purpose of bringing the matter in front of the entire body for review. A call for review is exempt from the payment of a fee and shall be filed with the City Clerk, within fourteen (14) days following the date the determination was rendered, on a form provided by the Clerk. The determination from which an appeal or call for review has been made has no force of effect as of the date on which the appeal or call for review is filed. When an appeal or call for review has been filed, the Community Development Director shall refer the periodic review to the City Council, for de novo review, in accordance with subsection (D) of this section. (Ord. 2015-9 § 27, 2015; Ord. 2013-10 § 1, 2013: Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)

15.45.090 Local Coastal Programs.

A development agreement shall not be applicable to any development project located in an area for which a local coastal program is required to be prepared and certified pursuant to the requirements of Division 20 (commencing with Section 30000) of the Public Resources Code, unless: (1) the required local coastal program has been certified as required by such provisions prior to the date on which the development agreement is entered into, or (2) in the event that the required local coastal program has not been certified, the California Coastal Commission approves such development agreement by formal commission action. (Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)

15.45.100 Recordation.

Within ten days after the effective date of a development agreement or any modification or the cancellation thereof, the City Clerk shall record the agreement or any modification or cancellation thereof in the office of the County Recorder for the County of Orange. (Ord. 2007-6 § 1 (part), 2007; Ord. 82-30 § 1 (part), 1982)