9682.6. - Procedure for consideration of agreement.

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