(A) Purpose and intent.
(1) General. The purpose and intent of this section is to:
(a) Authorize development agreements to be entered into between a developer and the city in accordance with the terms of this section;
(b) Encourage comprehensive planning and capital facilities planning;
(c) Ensure the provision of adequate public facilities for development; and
(d) Encourage the efficient use of resources, while providing certainty in the process of obtaining development permits and reducing the economic costs of development by providing greater regulatory certainty.
(2) Findings. For the reasons identified in § 160.03, Purpose and Intent, the City Council finds and determines that development agreements may be useful to both the city and developers by providing more regulatory certainty, establishing a schedule for development, and assisting both developers and the city coordinate the provision of adequate public facilities to serve development, coordinate the phasing of development, and administer and manage efforts to maintain open space and environmentally sensitive lands.
(B) Authority. The city has the authority to adopt this section for the purpose of entering into development agreements in accordance with S.C. Code §§ 6-31-10 et seq., the South Carolina Local Government Development Agreement Act.
(D) Procedure.
(1) Pre-application conference, application review, notification, and scheduling of public hearing. The procedures and requirements for submission and review of a request to enter into a development agreement are established in § 162.02, Common Review Procedures.
(2) Review and recommendation by Planning Commission. After preparation of a staff report, public notification, and the scheduling of the public hearing, the Planning Commission shall conduct a public hearing on the request to enter into a development agreement. At the public hearing, the Planning Commission shall consider the request, the relevant support materials, the staff report, and the testimony given at the public hearing. After the conclusion of the public hearing, the Planning Commission shall make a report to the City Council recommending whether it is in the best interests of the city to enter into the development agreement based on the goals of the city as identified in this section, this ZDO, the Comprehensive Plan, and other relevant and appropriate city policies. At its discretion, the Planning Commission may defer action on its recommendation on a proposed development agreement for the purpose of clarifying issues and information related to the proposal.
(3) Review and action by City Council. After receipt of the report from the Planning Commission and the scheduling of a public hearing, the City Council shall conduct a public hearing on the request to enter into a development agreement. At the public hearing, the City Council shall consider the application, the relevant support materials, the staff report, the report of the Planning Commission, and the testimony given at the public hearing (if any). After the close of the public hearing the City Council, in its sole discretion, shall determine whether or not to enter into the development agreement, based on such factors as whether the goals of the city, as identified in this section, this ZDO, the Comprehensive Plan, and other relevant and appropriate policies, is best achieved by the city entering into the development agreement. Any development agreement entered into by the City Council shall comply with § 162.04(D), Development Agreement Standards.
(D) Development agreement standards. An ordinance to enter into a development agreement between the city and a developer, and the development agreement, shall include the following:
(1) Development on at least 25 contiguous acres of high ground.
(2) A legal description of the land subject to the development agreement and the names of the legal and equitable owners.
(3) The duration of the development agreement, which shall be consistent with the requirements of S.C. Code §§ 6-31-10 et seq., the South Carolina Local Government Development Agreement Act.
(4) The plan for the development of the land, including proposed uses, the types of residential dwelling units, the nonresidential development proposed, the general location of development, the densities/intensities, the lot area, height, and other dimensional standards that will be applied to the development, the internal traffic circulation system, how the development will connect to external streets, greenways, trails, open space areas, recreational facilities, environmentally sensitive lands that will be protected, a development schedule including commencement dates and interim completion dates of no greater than five-year intervals, and any other matter determined appropriate for the plan for development of the land.
(5) The current zoning district classification of the land subject to the development agreement, and the future zoning district classification, if it is proposed to be different.
(6) A description of public facilities that will service the development, including who shall provide such public facilities, the date any new public facilities, if needed, will be constructed, and a schedule to verify that public facilities will be available concurrent with the impacts of the development on the public facilities. Any public facilities to be designed or constructed by the developer shall be in compliance with all applicable federal, state, and city standards to ensure the quality of the public facilities. The standards shall include, but not be limited to, guarantees of performance and quality, and project controls (including scheduling, quality controls, and quality assurances). If the city is to provide any public facilities to the development, they shall be tied to defined completion percentages or other defined performance standards that must be met by the developer.
(7) If determined appropriate by the city, an evaluation of the traffic impact of the development proposed in the development agreement and assurance that the impact will be mitigated.
(8) Where appropriate, a description of any reservations or dedications of land for public purposes.
(9) Where appropriate, a description of any provisions to protect environmentally sensitive lands as may be required or permitted in accordance with laws in effect at the time the development agreement is entered into between the city and the developer.
(10) Where appropriate, a description of any provisions to protect and preserve historic structures.
(11) A description of all local development permits approved or needed to be approved for development of the land, specifically, to include at least the following:
(a) Any required amendments to this ZDO;
(b) Any required amendments to the official zoning map;
(c) Any other development permits under this ZDO;
(d) Any other required permissions from regional, state, or federal governments.
(12) A statement and agreement by the developer that all local development permits identified shall be obtained at the sole cost of the developer, and that in the event that any such local development permits are not received, no further development of the land subject to the development agreement shall be allowed until such time as the City Council has reviewed the matter and determined whether or not to terminate the development agreement, or to modify it in a manner consistent with the public interest and the Comprehensive Plan.
(13) A finding that the development permitted or proposed in the development agreement is consistent with the Comprehensive Plan and this ZDO.
(14) A statement indicating that failure of the development agreement to address a particular permit, condition, term or restriction shall not relieve the developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions, and that any matter or thing required to be done under existing ordinances of the city shall not be otherwise amended, modified or waived unless such modification, amendment or waiver is expressly provided for in the development agreement with specific reference to the ordinance provisions so waived, modified, or amended.
(15) Such conditions, terms, restrictions, or other requirements determined to be necessary by the City Council to ensure compliance with this ZDO and the Comprehensive Plan, and to ensure the public health, safety, and welfare of the citizens of the city.
(16) A statement identifying which laws in force at the time of the execution of the development agreement apply; identification of any subsequently adopted laws which will apply; and recognition that other subsequently adopted laws may be applied by the city in accordance with § 162.04(H) and state law.
(E) Execution of development agreement. A development agreement shall be executed by all persons having legal or equitable title in the land subject to the development agreement, including the fee simple owner and any mortgagees, and the Mayor, on behalf of the city.
(F) Legislative act. A development agreement is determined to be a legislative act of the city in the furtherance of its powers to plan and regulate development, and as such, shall be superior to the rights of existing mortgagees, lien holders or other persons with a legal or equitable interest in the land subject to the development agreement, and the obligations and responsibilities arising thereunder on the landowner shall be superior to the rights of said mortgagees or lien holders and shall not be subject to foreclosure under the terms of mortgages or liens entered into or recorded prior to the execution ond recordation of the development agreement.
(G) Recordation. It shall be the responsibility of the developer, within 14 ddas after the development agreement has been executed, to record the agreement with the Register of Mesne Conveyance. If the development agreement is amended, cancelled, modified, extended, or revoked, the developer shall be responsible for ensuring the amended development agreement is recorded with the Register of Mesne Conveyance within 14 days of its execution.
(H) Local laws and policies governing a development agreement. Unless otherwise provided for by the development agreement, the laws and policies in force at the time of the execution of the development agreement govern the development of the land subject to the agreement, except that the city may apply subsequently adopted laws and policies if the City Council holds a public hearing in accordance with and determines:
(1) Laws not in conflict and do not prevent redevelopment. The laws are not in conflict with the laws governing the development agreement and do not prevent the development set forth in the development agreement;
(2) Laws essential to public health, safety, or welfare. The laws are essential to the public health, safety, or welfare, and expressly state that they shall apply to a development that is subject to a development agreement;
(3) Laws anticipated in development agreement. The laws are specifically anticipated and provided for in the development agreement;
(4) Substantial changes. It is demonstrated that substantial changes have occurred in pertinent conditions existing at the time of approval of the development agreement, which changes, if not addressed by the city, would pose a serious threat to the public health, safety, or welfare; or
(5) Agreement based on substantially and materially inaccurate information. It is demonstrated that the development agreement is based on substantially and materially inaccurate information supplied by the developer.
(I) Periodic review.
(1) Annual review.
(a) General. The Zoning Administrator shall undertake a periodic review of the development subject to the development agreement every 12 months, commencing one year after the effective date of the development agreement. The developer subject to the development agreement must demonstrate good faith compliance with the terms and conditions of the agreement, and must provide such information as the Zoning Administrator requests.
(b) Zoning Administrator report of material breach. If as a result of any annual review, the Zoning Administrator determines the developer has committed a material breach of the terms and conditions of the development agreement, the Zoning Administrator shall report such circumstances to the City Council.
(c) City Council notifies developer of material breach. If the City Council concurs with the findings of the Zoning Administrator's report, the Council shall serve written notice to the developer, within a reasonable time after the periodic review, setting forth with reasonable particularity the nature of the breach and the evidence supporting the findings and determination, and provide the developer a reasonable period of time to correct the breach.
(d) Remedies and corrections. If the developer fails to cure the material breach within the time provided for correction by the City Council, City Council may unilaterally terminate or modify the development agreement, if it provides the developer an opportunity to either rebut the findings of material breach, or consent to amend the development agreement to address the material breach, as long as City Council has otherwise complied with the provisions of the development agreement pertaining to a material breach.
(J) Burden/benefits. All burdens of a development agreement are binding upon, and the benefits of the development agreement shall inure to, all successors in interest to the parties to the development agreement.
(K) Amendment or cancellation of development agreement by mutual consent. A development agreement may be amended or cancelled by mutual consent of the parties to the development agreement, or by their successors in interest. A development agreement may be amended, extended, or modified only in accordance with the procedures established for its original approval.
(L) Effect of contrary state or federal laws. In the event that state and federal laws are enacted after the execution of a development agreement that are applicable to and preclude the parties compliance with the terms of the development agreement, such development agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. Such modification or revocation shall occur only after notice and a public review is conducted in accordance with § 162.04(C), Procedure.
(M) Technical codes. Development subject to a development agreement shall comply with the requirements of all building, housing, electrical, plumbing, and gas codes, in affect or hereafter adopted by the city.
(N) Enabling legislation. In the event a court of competent jurisdiction determines S.C. Code §§ 6-31-10 et seq., or any part thereof, invalid or unenforceable, or in the event that the South Carolina General Assembly amends or repeals S.C. Code §§ 6-31-10 et seq., in whole or in part, any development agreement adopted in accordance with this section shall be reviewed to determine if such change in the state act results in a substantial impairment of the city's rights or obligations in relation to such development agreement. The city shall have the right to immediately terminate the development agreement as to all parties thereto by written notice to the parties to the agreement in the event a change in the state act results in a substantial impairment to the city's rights in relation to such development agreement.
(Ord. 05-10, passed 3-23-10)