(A) Intention and limitation. The development agreement ordinance was adopted pursuant to the authority of Cal. Gov’t Code §§ 65864 through 65869.5. Unless otherwise provided by state law, the provisions set out in this section are the exclusive procedures and rules relating to development agreements. In case of conflict, the provisions of state law shall prevail over any other provisions of this chapter.
(B) Custodian of agreement file. The agreement file shall be held in the official custody of the City Clerk. The file shall include an executed copy of the agreement and all the originals of all exhibits, reports of periodic review, amendments, modifications or cancellation to the agreement.
(C) Qualification of the applicant.
1. Only a qualified applicant or his or her authorized agent may file any application pursuant to this chapter. A qualified applicant is a person who has a legal or an equitable interest in the real property which is subject of the development agreement. The city may require an applicant to submit proof or their interest in the real property and of the authority of the agent.
2. A qualified applicant or his or her authorized agent may file the application if the person has a legal or an equitable interest in the real property which is the subject of the development agreement.
(D) Application; required information. Application for a development agreement shall be made to the Planning Department on a form prescribed by the city planner or planning designee. The application shall include the required data as follows:
1. A map drawn to scale showing the property of which the development agreement is requested and the property lines for the properties within 300 feet of the exterior boundary lines of the subject property;
2. A clear indication of the names of all streets and of the assessor’s parcel numbers of each parcel shown on the map that is the subject of the development agreement;
3. The names and mailing addresses as listed on the latest assessment roll of the owners of the property shown on the map;
4. In addition to the required information identified on the application form, the applicant shall submit a written description of the project, the proposed uses, the density and intensity of use, the maximum height and size of proposed structures, and any proposed dedication of land if applicable. The developer shall also submit a statement justifying the findings the Council must make in subsection (J) of this section;
5. The proposed term of the development agreement may range from one year to ten years with an extension of five years based on specific intervals of development;
6. Establishment of vested rights, including project approvals and subsequent approvals to be vested, if any; and
7. The legal description or other description acceptable to the Planning Director of the subject property, which must be provided prior to the approval of the City Council.
(E) Application fee. The city has established by resolution a schedule of fees for the purpose of defraying the expense involved in the processing of the application. The schedule of fees is available in the Planning Department.
(F) Application withdrawal. An applicant may withdraw an application filed pursuant to this chapter at any time prior to City Council action on the application. Any fee required for processing the application shall not be returned or refunded to the applicant.
(G) Submittal with other applications. The city may require that a development agreement application be filed concurrently with other development related applications to ensure that adequate information is available to allow for the thorough review of the project’s benefits and impacts.
(H) Public hearing; transmittal to Commission. The Planning Director shall transmit the application and the draft agreement to the Planning Commission for a public hearing when all of the necessary reports and recommendations are complete. The Planning Commission shall hold a public hearing on the development application as prescribed in the California Government Code.
(I) Public hearing by City Council.
1. After the Planning Commission has held a public hearing, it shall render its decision in the form of a written report, and a recommendation shall include proposed findings on the matters stated in this chapter.
2. Prior to the public hearing, the applicant shall submit a letter to the city indicating agreement with the provisions of the proposed development agreement. If the applicant does not concur with all provisions, the letter shall specify the areas of disagreement and indicate the reasons for such disagreement.
3. Upon receipt of the recommendation and report of the Planning Commission, the City Council shall hold a required public hearing.
4. After the Council has held a public hearing, it may approve, modify and approve, or disapprove the development agreement. It may, but need not, refer to matters not previously considered by the Planning Commission for a report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred to it by the City Council.
(J) Action by City Council.
1. In order to approve a development agreement, the City Council shall adopt findings of fact, including, but not limited to, the following:
(a) That the development agreement is consistent with the goals, objectives and policies of the general plan, and any applicable specific plan or policy plan;
(b) That the development agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is or will be located;
(c) That the development agreement would not be detrimental to the public health, safety or welfare of the community;
(d) That the development agreement would promote the public convenience, general welfare, and good land use practices, and is in the best interest of the community;
(e) That the development agreement would not adversely affect the orderly development of property or the preservation of property values; and
(f) That the development agreement would promote and encourage the development of the proposed project by providing a greater degree of requisite certainty;
2. A development agreement shall be adopted by ordinance.
(K) Execution of development agreement. The applicant shall execute the development agreement within 15 calendar days after adoption of the ordinance. Failure to execute the agreement shall result in the agreement becoming null and void.
(L) Amendment of development agreement. An amendment to a development agreement shall be subject to the same public notice and hearing process as adoption of the agreement. When adopting an amendment, the City Council shall make findings, including, but not limited to, that the amendment is consistent with the provisions of the agreement, with the original intent of the development agreement and that the amendment will not be detrimental to the public health, safety or general welfare of the community. Any revision to the development agreement which does not relate to the term of the agreement, permitted uses of the property, provisions for the reservation or dedication of land or monetary exactions of the developer, shall be considered an administrative adjustment, and is not an amendment, and no public hearing shall be required, unless otherwise determined by the Planning Director.
(M) Periodic review. The Planning Commission shall, not less than once every 12 months from the effective date of the development agreement, review the same for compliance with its terms and conditions. The Planning Commission shall determine upon the basis of substantial evidence whether or not, for the period under review, there has been compliance in good faith with the terms and conditions of the agreement. After the public hearing, the Planning Commission shall render its decision in the form of a written report to the City Council. If the Planning Commission determines that there has not been compliance in good faith with the terms and conditions of the agreement, the Commission may include in its report a recommendation for the modification or termination of the agreement.
(N) Hearing following periodic review.
1. The City Council shall place the report of the Commission on its agenda at the second regularly scheduled City Council meeting following the receipt of the Planning Commission report by the City Council.
2. If the Planning Commission reports that there has been compliance in good faith with the terms and conditions of the agreement for the period under review, the City Council shall accept the report for filing and shall not take any further action unless:
(a) The City Council, on its own motion, votes to set the matter for public hearing; and
(b) An appeal is filed with the City Council from the determination of the Planning Commission within 15 days of the Planning Commission’s report.
3. If the Planning Commission reports that there has not been compliance in good faith with the terms and conditions of the agreement for the period under review, the City Council shall hold a public hearing to consider the report and recommendations of the Commission. Notice shall be given as provided in accordance with Cal. Gov’t Code §§ 65867, 65090 and 65091.
4. At the conclusion of the public hearing, the City Council may refer the matter to the Planning Commission for a further report and recommendation or it may make a final determination on whether or not there has been compliance in good faith with the terms and conditions of the agreement.
5. If the City Council finds and determines, on the basis of substantial evidence, that there has not been compliance in good faith with the terms and conditions of the agreement for the period under review, the City Council may terminate the agreement or impose those conditions which it considers necessary and appropriate to protect the interests of the city. Any court action or proceeding to attack, review, set aside, void or annul the final determination by the City Council shall be commenced within 60 days from the date upon which a final determination is made by the City Council.
(O) Cancellation or termination of development agreement.
1. Intent to cancel or terminate a development agreement shall be subject to the same public notice and hearing process as adoption of the agreement.
2. Any development agreement may be canceled by mutual consent of the parties. Following a public hearing by the Planning Commission and City Council, the Council shall adopt a resolution canceling the development agreement.
(P) Termination of the development agreement by the city.
1. If, at any time during the term of a development agreement, the Planning Director finds, on the basis of substantial evidence, that the developer has not complied in good faith with the terms and conditions of the development agreement, the Planning Commission will conduct a public hearing, at which time the developer must demonstrate good faith compliance with the terms of the development agreement.
(a) The burden of proof to show substantial evidence of compliance by the developer shall be upon the developer.
(b) If such compliance has not been demonstrated to the satisfaction of the City Council, they will terminate the development agreement or recommend new terms and conditions intended to remedy the noncompliance.
2. The City Council shall review the recommendation of the Planning Commission at which time the developer and any other interested persons shall be entitled to submit such evidence and testimony as may be germane to the issue of the developer’s good faith compliance with the terms of the development agreement.
(a) If the City Council finds, based upon substantial evidence, noncompliance with the terms and conditions of the development agreement, the City Council may either cancel the development agreement upon giving 60 days’ notice to the developer or, in its discretion, may allow new terms and conditions intended to remedy such noncompliance;
(b) The City Council may impose such conditions to the action it takes as it considers necessary to protect the interests of the city; and
(c) The decision of the City Council shall be final.
(Q) Rights of the parties after cancellation or termination. In the event that a development agreement should be canceled, or otherwise terminated, unless otherwise agreed, all rights of the developer, property owner, or successors in interest under the development agreement shall terminate.
1. Any and all benefits, including money or land, received by the city shall be retained by the city. Notwithstanding the above provision, any termination of the development agreement shall not prevent the developer from completing and occupying a building or other improvements authorized pursuant to a valid building permit previously approved by the city or under construction at the time of termination.
2. The city may take any action permitted by law to prevent, stop or correct any violation of law occurring during and after construction, and the developer or any tenant shall not occupy any portion of the project or any building not authorized by a previously issued building permit.
(Ord. 553, passed 8-16-2005)