Division 2 — DEVELOPMENT AGREEMENTS

Unless otherwise provided in this Code, these procedures in these sections are the exclusive procedures and rules relating to development agreements and, in the event of conflict, these provisions shall prevail over any other provisions of this Code.

A development agreement may be initiated by:

A.

An application of one (1) or more qualified applicants, as defined in section 9682.5;

B.

The city council;

C.

The planning commission.

An application for a development agreement shall be made in writing by a qualified applicant to the department of planning and community development on a form prescribed by the director. The application shall include the following data:

A.

A map drawn to scale showing the property for which the development agreement is requested and the property lines for the properties within three hundred (300) feet of the exterior boundary lines of the subject property;

B.

A clear indication of the names of all the streets and of the assessor's parcel numbers of each parcel shown on said map;

C.

The names and mailing addresses as listed on the latest equalized assessment roll of the owners of the property shown on the map;

D.

The legal description of the subject property;

E.

The assessor's parcel number or numbers and the street address of the subject property;

F.

The proposed use or uses, density or intensity of use of the property, the maximum height and size of any proposed buildings, the proposed duration of the agreement, and any proposed covenants, conditions and restrictions or tract restriction;

G.

In addition to the information above, the director may require a qualified applicant to submit additional information and supporting data as the director considers necessary to process the application.

A fee shall be paid as established by the city council by resolution.

Only a qualified applicant may file an application pursuant to this part. A qualified applicant is a person who has a legal or equitable interest in the real property which is the subject of the development agreement. An applicant also includes an authorized agent of a person who has a legal or equitable interest. The director may require an applicant to submit proof of its interest in the real property and of the authority of the agent to act for the applicant. The director may require an applicant or agent to submit a title report or other evidence to verify the applicant's legal or equitable interests in the subject property.

The following shall be the procedures for approving a development agreement:

A.

Form of agreement. Each application shall be accompanied by the form of development agreement proposed by the applicant. This requirement may be met by using the city's standard form of development agreement, if such form has been approved by the city council, and including specific proposals for changes in or additions to the language of the standard form.

B.

Review of application.

1.

The director shall review the application and shall accept it for filing if it is complete and accurate.

2.

The director shall review the application and shall prepare a staff report and recommendation to the planning commission with regard to the proposed agreement.

3.

The director shall forward a copy of the agreement proposed by an applicant to the city attorney for review. The city attorney shall prepare a report to the planning commission on the proposed agreement.

C.

Environmental review. A development agreement, if it qualifies as a project under the California Environmental Quality Act and implementing regulations, shall be subject to environmental review.

D.

Public hearing required. The director shall transmit the application to the planning commission for a public hearing when all of the necessary reports and recommendations are complete. Notice of the public hearing shall be given as provided in this article. The application for a development agreement shall be considered concurrently with the other discretionary permits or approvals for the project.

E.

Planning commission action. After a public hearing has been held by the planning commission, it shall render its decision in the form of a written recommendation to the city council.

F.

Action by the city council.

1.

The city council shall hold a public hearing on any proposed development agreement.

2.

After the council completes the public hearing, it may approve, modify, or disapprove the development agreement. Matters not previously considered by a planning commission during its hearing may, but need not, be referred back to the commission for report and recommendation. The commission is not required to hold a public hearing on such referrals.

3.

The city council shall not approve a development agreement unless it finds that the proposed agreement:

a.

Is consistent with the general plan and any applicable specific plan;

b.

Is in conformity with public convenience and good land use practices;

c.

Will not be detrimental to the health, safety and general welfare;

d.

Will not adversely affect the orderly development of property or the preservation of property values;

e.

Is consistent with the provisions of Government Code 65864 through 65869.5.

G.

Required notice for public hearings.

1.

Notice of public hearings required by this article shall be given as provided in section 9804 et seq.

2.

The notice requirements referred to in subdivision 1, above, are declaratory of existing law (Government Code Sections 65867, 65854, 65854.5 and 65856). If state law prescribes a different notice requirement, notice shall be given in that manner.

3.

The failure of any person entitled to notice required by law of this chapter shall not affect the authority of the city council to enter into a development agreement.

H.

Irregularity in proceedings. No action, inaction or recommendation regarding the 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 petition, application, notice, finding, record, hearing, report, recommendation, or any matters of procedure whatever unless after an examination of the entire case, including the evidence, the court is of the opinion 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 should have been probable if the error had not occurred or existed. There is no presumption that error is prejudicial or that injury was done if error is shown.

I.

Amendment or cancellation.

1.

Either party may propose an amendment to or cancellation in whole or in part of any development agreement. Any amendment or cancellation shall be by mutual consent of the parties.

2.

Except as otherwise provided in this section, the procedure for proposing and adopting an amendment to or the canceling in whole or in part of the development agreement shall be the same as the procedure for entering into an agreement in the first instance. However, if the city initiates a proposed amendment to or a cancellation in whole or in part of the agreement, the city shall first give written notice to the party executing the agreement of its intention to initiate such proceedings not less than thirty (30) days in advance of the giving of public notice of the hearing to consider an amendment or cancellation.

3.

Any amendment to the development agreement which does not relate to the duration of the agreement, permitted uses of the property, density or intensity of the use, height or size of proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions and requirements relating to subsequent discretionary actions related to design, improvement, construction standards and specifications, or any other condition or covenant relating to the use of the property shall not require a noticed public hearing before the parties may execute an amendment to the agreement.

J.

Recordation. Within ten (10) days after the effective date of a development agreement, or any modification or the cancellation thereof, the agreement, the modification or cancellation notice shall be recorded with the county recorder.

K.

Periodic review.

1.

The director, by the terms of the development agreement, shall review the development agreement every twelve (12) months from the date the agreement is entered into.

2.

The city council may refer the matter of the periodic review to the planning commission.

L.

Procedure for periodic review.

1.

The city council or person charged in the agreement, shall conduct a review hearing at which time the property owner must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the property owner.

2.

The city council, or any person charged with review, shall determine, upon the basis of substantial evidence, that the property owner has complied in good faith with the terms and conditions of the agreement.

3.

If the city council, or person charged with review, determines, on the basis of substantial evidence, that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, no further action is required.

4.

If the city council, or person charged with review, determines, on the basis of substantial evidence, that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the council, on its own motion, or upon the application of the party charged with the review, may initiate proceedings to modify or terminate the agreement.

5.

The procedure herein for periodic review is an administrative hearing and shall not require a public hearing.

M.

Modification or termination.

1.

If, upon a finding pursuant to this section, the council determines that modification of the agreement is appropriate or that the agreement should be terminated, the council shall give notice to the other party to the agreement of its intention to do so. Such notice shall provide:

a.

The time and place of the public hearing;

b.

A statement as to whether the council proposes to terminate or to modify the agreement;

c.

Such other information which the council considers appropriate to inform the other party of the nature of the proceeding.

2.

A public hearing for termination or for modification shall be conducted according to the provisions of section 9804 et seq., except that any amendment or modification which does not relate to the duration of the agreement, permitted uses of the property, density or intensity of use, height or size or proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions and

requirements relating to subsequent discretionary actions relating to design, improvement, construction standards and specifications, improvement and construction standards or any other condition or covenant relating to the use of the property shall not require a noticed public hearing before the council.

3.

The city council may refer the matter to the planning commission for further proceedings or for a report and recommendation. Upon receipt of any such report and recommendation and the completion of the public hearing, if any, the council shall take final action on the modification or termination. As part of that final determination, the council may impose conditions which it considers necessary and appropriate to protect public health, safety and welfare and the interests of the city. The decision of the city council shall be final.

Chapter 7 - NONCONFORMING LOTS, BUILDINGS, USES AND LAND

Part

1. Purpose, § 9701

2. Type I Nonconformities—Nondetrimental, § 9702

3. Type II Nonconformities—Detrimental, § 9703

4. Nonconforming Use of Land, § 9704

5. Nonconforming Off-Street Parking and Loading Facilities, § 9705

6. Nonconforming Outdoor Storage and Display, §§ 9706, 9706.5

7. Nonconforming to Performance Standards, § 9707

8. Modifications to Nonconforming Lots, Buildings and Uses, §§ 9708—9708.4

9. Nonconforming Signs, § 9709

10. General Provisions, § 9709.5

11. Nonconforming Alcoholic Beverage Establishments, § 9710

12. Nonconforming Wireless Telecommunications Facilities, § 9711

9711. • Nonconforming wireless telecommunications facilities and wireless telecommunications collocation facilities.

A.

Nonconforming wireless telecommunications facilities and/or nonconforming wireless telecommunications collocation facilities are those facilities that do not conform to division 11 of part 2 of chapter 6 of article IX of this Code.

B.

Nonconforming wireless telecommunications facilities and wireless telecommunications collocation facilities shall, within ten (10) years from the date such facility becomes nonconforming, bring the facility into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time.

C.

When a nonconforming wireless telecommunications facility or wireless telecommunications collocation facility is abandoned or vacated for a continuous period of ninety (90) days or more days, such facility shall conform to the regulations of the district in which the property is located or shall be removed in accordance with section 9661.17 of this Code if it cannot be made to conform.

An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten-year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property.

(Ord. No. 11-387, § 8, 8-24-2011)