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A. The form of notice to consider adoption of a development agreement before the planning commission or city council shall contain:
1. The time and place of the hearing;
2. A general explanation of the matter to be considered including a general description of the area affected;
3. The location or locations where a copy of the proposed development agreement may be reviewed;
4. Other information required by specific provisions of this chapter or which the director of community development considers necessary or desirable.
B. The time and manner of giving notice is by:
1. Publication at least once and at least ten (10) days prior to the hearing in a newspaper of general circulation, circulated in the city.
2. Mailing of the notice at least ten (10) days prior to the hearing to the applicant, to the owner of the property subject to the development agreement, to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project whose ability to provide those facilities and services may be significantly affected, to any person who has filed a written request for notice with either the city clerk, and to all persons shown on the last equalized assessment roll as owning real property within three hundred feet (300') of the property which is the subject of the proposed development agreement; provided, the director of community development may direct that notice be given over a wider area to adequately inform interested persons. If the number of owners to whom notice is to be mailed is greater than one thousand (1,000), the director of community development may as an alternative provide notice in the manner set forth in section 65901 of the Government Code.
C. The planning commission or city council, as the case may be, may direct that notice of the public hearing to be held before it shall be given in a manner that exceeds the notice requirements prescribed by state law, but failure to comply with such procedure shall not invalidate a development agreement.
D. The notice requirements referred to in this chapter are declaratory of existing law (Government Code sections 65867, 65090 and 65091). If and when state law prescribes any different notice requirement, notice shall be given in that manner. (Ord. 2073 § 1, 1989)
Formal rules of evidence or procedure which must be followed in a court of law shall not apply to the consideration of a proposed development agreement. No action, inaction or recommendation regarding a development agreement shall be held void or invalid on the ground of the improper admission or rejection of evidence or by reason of any error or informality, as to any matter procedure whatsoever unless, after an examination of the entire case, including the evidence, a court of law finds that the error complained of 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 no presumption that error is prejudicial or that injury resulted if error is shown. (Ord. 2073 § 1, 1989)
A. Annual Review: The city shall review development agreements at least once every twelve (12) months from the date of their approval. Pursuant to Government Code section 65865.1, the applicant for a development agreement shall have the duty to demonstrate its good faith compliance with the terms of the development agreement at the time of such periodic review. The city's cost for such periodic review shall be paid by the applicant to the city prior to the time of such review.
B. Applicant's Submission: Not less than thirty (30), nor more than sixty (60), days prior to the anniversary date of a development agreement, and each anniversary date thereafter, the applicant shall submit to the community development department a letter setting forth the applicant's good faith compliance with the terms and conditions of the development agreement. Such letter shall be accompanied by documents and other information as may be necessary and available to enable the city to undertake its annual review of applicant's good faith compliance under the terms of the development agreement, and shall also state that such letter is submitted to the city pursuant to the requirements of Government Code section 65865.1 and this chapter. Not less than thirty (30), nor more than sixty (60), days prior to the anniversary date of a development agreement, the city's community development department shall provide notice to the city council, at a regularly scheduled meeting of the city council, that a development agreement will be subject to annual review in accordance with this chapter.
C. Finding Of Compliance: The community development department shall review the applicant's submission to ascertain whether the applicant has complied in good faith with the terms of the development agreement. Upon request of the community development department, the applicant shall furnish such additional documents or information as may be reasonably required and available to the applicant to enable the community development department to make and complete its review hereunder. If the community development department finds good faith compliance by the applicant with the terms of the development agreement, it shall issue a certificate of compliance, certifying the applicant's good faith compliance with the terms of the agreement through the period of the applicable annual review. Such certificate of compliance shall be in recordable form and shall contain such information as may be necessary in order to impart constructive record notice of the finding of good faith compliance hereunder. The applicant shall have the right to record the certificate of compliance, at the applicant's sole cost, in the official records of the county of San Bernardino. At least ten (10) days prior to making its determination, the community development department shall provide to the applicant copies of all staff reports and other information concerning the applicant's compliance with the terms of the development agreement and the determination made by the community development department.
D. Finding Of Noncompliance: If the community development department finds that the applicant has not complied in good faith with the terms of the development agreement, it shall specify to the applicant in writing the respects in which the applicant has failed to comply. The community development department shall also specify a reasonable time for the applicant to comply with such terms for compliance, which shall not be less than thirty (30) days, and shall be reasonably related to the time necessary to adequately bring the applicant's performance into good faith compliance with the development agreement. If the areas of noncompliance specified by the community development department are not perfected within such reasonable time limits prescribed by the department, then the development agreement shall be subject to modification or cancellation pursuant to this chapter and the provisions of Government Code section 65865.1.
E. Referral To City Council: The community development department may refer any review to be conducted hereunder to the city council. Such referral shall be made by the community development department director, together with a staff report on the department's preliminary findings. Upon such referral, the city council shall conduct a noticed public hearing on the applicant's compliance with the terms of the development agreement in accordance with the provisions of this chapter and Government Code section 65865.1. If, after considering all the evidence at such public hearing, the city council finds and determines on the basis of substantial evidence that the applicant has not complied in good faith to the terms and conditions of the development agreement, then the city council shall specify to the applicant the respects in which the applicant has failed to comply and shall also specify a reasonable time for the applicant to comply with such terms which shall not be less than thirty (30) days, and shall be reasonably related to the time necessary to adequately bring the applicant's performance into good faith compliance with the terms of the development agreement. If the areas of noncompliance specified by the city council are not perfected within such reasonable time limits, then the city council, by noticed hearing, may terminate, modify or take such other action with regard to the development agreement.
F. Miscellaneous Requirements In Connection With Annual Review: The community development department's determination shall be made within thirty (30) days after the submission by the applicant of the required material hereunder, and, if the community development department refers the matter to the city council, then the determination by the city council shall be made within fifteen (15) days after such referral. The applicant shall be permitted an opportunity to be heard orally, or in writing, before the community development department regarding such performance and before the community development department makes its determination or referral. The issuance of the certificate of compliance by the community development department (or the city council on referral) shall conclude the review for the applicable period, and such determination shall be final and conclusive up to and including the date of the annual review hereunder. All costs incurred by city for the annual review conducted under this chapter shall be borne by the applicant, including, but not limited to, the city's retention of professionals. (Ord. 2385 § 2, 1998: Ord. 2385 § 2, 1998)
Any development agreement may be cancelled or modified by mutual consent of the parties, but only in the manner provided for by California Government Code section 65868. Any proposal to cancel or modify a development agreement shall be heard and determined in accordance with the same procedures specified by this chapter for approval of a development agreement. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)
A. If, at any time during the term of a development agreement the director of community development determines that the applicant has not complied in good faith with the terms and conditions of the development agreement, the director of community development shall, pursuant to the notice provisions of this chapter, request that the planning commission conduct a public hearing at which the applicant must demonstrate good faith compliance with the terms of the development agreement. The burden of proof by substantial evidence of compliance by the applicant is upon the applicant. If such compliance cannot be shown, the planning commission shall recommend to the city council that the city council either commence proceedings to cancel the development agreement or recommend new terms and conditions intended to remedy the noncompliance.
B. The city council shall conduct a noticed hearing on the recommendations of the planning commission at which the applicant and any other interested person shall be entitled to submit such evidence and testimony as may be germane to the issue of the applicants good faith compliance with the terms of the development agreement. If the city council finds, based on substantial evidence, noncompliance with the terms and conditions of the development agreement, it may either cancel the development agreement upon giving sixty (60) days' notice to the applicant, or in its discretion, may allow the development agreement to be continued by imposition of new terms and conditions intended to remedy such noncompliance. The city council may impose such conditions to the action it takes as it considers necessary to protect the interests of the city. The decision of the city council shall be final.
C. Any cancellation or imposition of new terms and conditions pursuant to this section shall be noticed in accordance with the procedures specified in section 18.220.150 of this chapter. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)
In the event a development agreement is cancelled, unless otherwise agreed, all rights of the applicant, or his successor in interest under the development agreement, shall terminate. Any and all benefits, including money or land, received by the city shall be retained by the city. Notwithstanding the above provision, the termination of a development agreement shall not prevent an applicant from completing 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, but 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 applicant or any tenant shall not occupy any portion of the project or any building not authorized by a previously issued building permit. As used herein, "construction" shall mean work performed in good faith in reliance upon a valid building permit, and "completing" shall mean completion for beneficial occupancy for an applicant's use, or if a portion of the project is intended for use by a lessee or tenant, then for such portion "completing" shall mean completion except for interior improvements such as partitions, duct and electrical run outs, floor covering, wall coverings, lighting, furniture, trade fixtures, finished ceilings and other improvements typically constructed by or for tenants of similar buildings. All such uses shall, to the extent applicable, be deemed nonconforming uses and shall be subject to the nonconforming use provisions of this code. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)
All development agreements shall be subject to the regulation and requirements of the laws of the state of California, the constitution of the United States and any codes, statutes and any court decisions, state or federal. In the event that any law, code, statute or decision made or enacted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then such provisions of the development agreement shall be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with that law, code, statute or decision. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)
Development agreements shall not take the place of zoning ordinances, the general plan, conditional use permits, subdivision approvals, building permits or any other city planning functions. To the extent practicable, public hearings on a proposed development agreement may be held concurrently with the public hearings on all related land use approvals and all such approvals shall be made concurrently with the approval of the development agreement. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)
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