§ 9107.11

A.

Equitable Interest. Person(s) having a legal or equitable interest in real property located within the City, or for property to be annexed to the City, may apply through the City Manager to enter into a development agreement provided the following criteria are met:

1.

The status of the applicant, having a legal or equitable interest in the subject real property, is established to the satisfaction of the City Manager. A qualified applicant may also include an authorized agent of the applicant; and

The application is made on approved forms, contains all lawfully required documents, materials, and information, and is filed with the City Manager in compliance with Section 9107.03 (Application Processing Procedures).

B.

City Manager's Review and Recommendations.

1.

The City Manager is empowered to receive, review, process, and prepare, together with recommendations for Commission and Council consideration, all applications for development agreements.

2.

The City Manager may require an applicant to provide proof of interest in the real property and of the authority of the agent to act for the applicant. The proof may include a preliminary report issued by a title company licensed to do business in the State evidencing the requisite interest of the applicant in the real property. Before processing the application, the City Manager may obtain the opinion of the City Attorney as to the sufficiency of the applicant's interest in the real property to enter into a development agreement.

3.

The City Manager may call upon all other City departments for timely assistance in complying with this Section.

4.

The City Manager shall review the application and may reject it if it is incomplete or inaccurate,

5.

The City Manager shall endorse on the application the date it is received.

C.

Fees. Processing fees, as established by the Fee Schedule, shall be collected for the filing and processing of an application for a development agreement made in compliance with this Section. Additionally, appropriate fees shall be established and collected for amendments to a development agreement and the periodic review identified in Subsection 9107.11.080 (Periodic Review), below.

A.

Filing. An application for a development agreement shall be filed with the City Manager in compliance with Section 9107.03 (Application Processing Procedures).

B.

Contents. The application shall be accompanied by all of the detailed data/materials identified in the most up-to-date Department handout for development agreement applications, in compliance with Section 9107.11.040 (Contents of Development Agreement), below.

C.

Project Review Procedures. Following receipt of a completed application, the City Manager shall investigate the facts necessary for action consistent with the purpose of this Section and shall prepare a report and recommendation indicating the application's compliance with the General Plan, any applicable specific plan, this Development Code, and the Zoning Map. Initial review of the application, including time requirements and requests for information, shall be conducted in compliance with Subsection 9107.03.060 (Initial Application Completeness Review).

D.

Notice and Hearings.

1.

The City Manager, upon finding the application for a development agreement complete and in compliance with the provisions of the California Environmental Quality Act (CEQA), shall set the application, together with recommendations, for public hearing before the Commission. Following conclusion of the public hearing, the Commission shall make a written recommendation to the Council that it approve, conditionally approve, or deny the application, based on the findings identified in Subsection E. (Findings and Decision), below.

2.

Upon receipt of the Commission's recommendations, the City Clerk shall set the application and written report of the Commission for a public hearing before the Council.

a.

Following conclusion of the public hearing, the Council shall approve, conditionally approve, or deny the application, based on the findings identified in Subsection E. (Findings and decision), below. It may, but need not, refer matters not previously considered by the Commission during its hearing back to the Commission for report and recommendation. The Commission may, but need not, hold a public hearing on matters referred back to it by the Council.

b.

The Council may not approve the development agreement unless it first finds that the provisions of the development agreement are consistent with the General Plan, any applicable specific plan, this Development Code, and the Zoning Map,

3.

Notice of the public hearings shall be provided and the hearings shall be conducted in compliance with the following:

a.

Notice of the hearings identified in this Subsection shall be given in the form of a notice of intention to consider approval of a development agreement in compliance with Government Code Section 65867 and Section 9108.13 (Public Notices and Hearings).

b.

The notice requirements referred to in this Subsection are declaratory of existing State law (Government Code Sections 65867, 65090 and 65091). If State law prescribes a different notice requirement, notice shall be given in that manner. The notices required by this Subsection are in addition to any other notices required by law for other actions to be considered concurrently with a development agreement.

c.

The Commission and/or Council, as applicable, may direct that notice of the public hearings shall be given in a manner that exceeds the notice requirements specified by State law.

d.

The failure to receive notice by any person entitled to notice required by State law or these regulations does not affect the authority of the City to enter into a development agreement.

e.

The public hearings shall be conducted as nearly as may be in compliance with the procedural standards specified in Government Code Section 65804 for the conduct of zoning hearings. Each person interested in the matter shall be given an opportunity to be heard. The applicant has the burden of proof at the public hearing on the proposed development agreement.

f.

Formal rules of evidence or procedure applicable in judicial actions and proceedings shall not apply in any proceeding concerning a development agreement. No action, inaction, or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by a court on the ground of the improper admission or rejection of evidence or by reason of any error, informality, irregularity, 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 would 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.

E.

Findings and Decision. The Commission may recommend approval and the Council may approve a development agreement only if it first makes all of the following findings:

The development agreement is consistent with the purpose, intent, goals, policies, programs, and land use designations of the General Plan, any applicable specific plan, this Development Code, and the Zoning Map;

2.

The development agreement will promote the public convenience, health, interest, safety, general welfare, and good land use practice;

3.

The project will be compatible with the uses authorized in, and the regulations prescribed for, the zone in which the real property is located;

4.

The project will not adversely affect the orderly development of property or the preservation of property values;

5.

The project will provide the City with important, tangible benefits beyond those that may be required by the City through project conditions of approval; and

6.

For development agreements that include a subdivision, that the tentative map prepared for the subdivision will comply with Government Code Section 66473.7.

(Ord. No. 2375, § 4(Exh. A), 4-6-21)

9107.11.040 - Contents of Development Agreement.

A.

Mandatory Contents. A development agreement shall contain the applicable provisions specified in the most up-to-date Department handout for development agreement applications, in compliance with Government Code Section 65865.2, including specific language identifying the duration of the agreement.

B.

Payment of Impact Fees, Deferral, and in Lieu Dedications.

1.

An application shall include a schedule of impact, public facilities, and service mitigation fees due and payable from the applicant at those times and in those amounts as established by separate resolution of the City, which is in effect at the time of execution of the development agreement.

A proposed development agreement may also provide:

a.

For the limitation upon increases of applicable impact, public facilities, and service mitigation fees. The period for which the fee shall be limited shall be established in the agreement not to exceed five years from the execution of the development agreement. Upon expiration of the limitation period, the full amount of applicable impact, public facilities, and service mitigation fees as specified in the existing City ordinances or resolutions shall be payable in connection with the subject development project;

b.

As determined by the City on a case by case basis, for the deferral of payment of impact fees, for those times and on those terns to be specified in the development agreement; and

c.

For the applicant's construction and dedication of public improvements to partially or fully satisfy those impact fees applicable to the development project. The development agreement shall specifically identify the public improvements to be constructed and dedicated to the City as separate exhibits and the amount of fees to be satisfied by the construction and dedication.

C.

Permissive Contents. A development agreement may also contain the applicable provisions specified in the most up-to-date Department handout for development agreement applications, in compliance with Government Code Section 65865.2.

D.

Duration of a Development Agreement.

1.

Maximum Initial Term. The maximum initial term of a development agreement shall be 10 years.

2.

Single Extension.

a.

The terms of a development agreement may provide for a single extension of the initial term for an additional five years following expiration of the initial term, provided all of the following have occurred:

(1)

The developer provides written notice to the City at least 180 days before expiration of the initial term;

(2)

The developer has made substantial progress in completing the project as determined in the sole discretion of the Council; and

(3)

The developer is not then in uncured default of the development agreement.

b.

The City may impose additional terms and conditions upon an extension to the term of a development agreement.

9107.11.050 - Execution and Recordation.

A.

Adoption of Ordinance Becomes Effective.

1.

If the Council approves the development agreement, it shall do so by the adoption of an ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement.

2.

The City shall not execute a development agreement until on or after the date upon which the ordinance approving the agreement, enacted in compliance with Subsection 9107.11.030 D (Notice and Hearings), above, becomes effective.

3.

After the ordinance approving the development agreement takes effect, the City may enter into the agreement and the Mayor shall sign the agreement.

B.

Recordation of Agreement.

1.

Within 10 days after the City enters into the development agreement, the City Clerk shall have the agreement recorded with the County Recorder.

2.

If the parties to the agreement or their successor(s)-in-interest amend or cancel the agreement in compliance with Government Code Section 65868, or if the City terminates or modifies the agreement in compliance with Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall have notice of the action recorded with the County Recorder.

9107.11.060 - Amendment and Cancellation of Development Agreements.

A.

Proposed Amendment or Cancellation. Either party or successor(s)-in-interest may propose an amendment to or cancellation, in whole or in part, of the development agreement previously entered into. Any amendment or cancellation shall be by mutual consent of the parties or their successor(s)-in-interest, except as provided under Government Code Section 65865.

B.

Same Procedures. The procedure and notice requirements for proposing and adopting an amendment to or cancellation in whole or in part of the development agreement are the same as the procedure for entering into an agreement in compliance with this Section.

C.

City Initiated Amendment or Cancellation. Where the City initiates the proposed amendment to or cancellation in whole or part of the development agreement, it shall first give notice to the applicant/contracting party or its successor(s)-in-interest of its intention to initiate the proceedings at least 60 days before giving notice of intention to consider the amendment or cancellation, in compliance with Subsection 9107.11.030 (Filing, Processing, and Review), above.

The City may modify or suspend a development agreement if the City determines that failure of the City to do so would place the residents of the area subject to the development agreement, or the residents of the City, or both, in a condition dangerous to their health or safety, or both, in compliance with Government Code Section 65865.3(b).

A.

Subject to Periodic Review. Each approved development agreement shall be subject to all of the following review procedures:

1.

The City shall review the development agreement every 12 months from the date the agreement is entered into in order to ascertain the good faith compliance by the applicant/contracting party or its successor(s)in-interest with the terms of the agreement.

2.

The review schedule shall be specified in the development agreement.

3.

The applicant/contracting party or its successor(s)-in-interest shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, within 10 days after written notice from the City Manager.

4.

The time for review may be shortened or a special review called either by agreement between the parties or by initiation in one or more of the following ways:

a.

Recommendation of the City Manager;

b.

Affirmative vote of at least three members of the Commission; or

c.

Affirmative vote of at least three members of the Council.

B.

Periodic Review of the Agreement.

1.

The City Manager shall begin the review proceeding by giving notice that the City intends to undertake a periodic or special review of the development agreement to the applicant/contracting party or its successor(s)-in-interest. The City Manager shall give the notice at least 10 days in advance of the time at which the matter will be considered by the Commission.

2.

The Commission shall conduct a public hearing at which the applicant/contracting party or its successor(s)in-interest must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the applicant/contracting party or its successor(s)-in-interest.

3.

The Commission shall determine upon the basis of substantial evidence whether or not the applicant/contracting party or its successor(s)-in-interest has, for the period under review, complied in good faith with the terms and conditions of the agreement.

a.

If the Commission finds and determines on the basis of substantial evidence that the applicant/contracting party or its successor(s)-in-interest has complied in good faith with the terms and conditions of the agreement during the period under review, the Commission's findings and determinations shall be transmitted to the Council. The Council shall then either:

(1)

Receive and file the Commission's report, thereby accepting the Commission's findings and determinations without further action; or

(2)

Set this matter for public hearing, in which event, the Council shall proceed to conduct the public hearing in compliance with Subsection 9107.11.030 (Filing, Processing, and Review), above.

b.

If the Commission finds and determines on the basis of substantial evidence that the applicant/contracting party or its successor(s)-in-interest has not complied in good faith with the terms and conditions of the agreement during the period under review, the Commission's findings and determinations shall be transmitted to the Council. The Commission may recommend to the Council that the agreement be terminated or modified.

C.

Council's Consideration to Terminate or Modify a Development Agreement.

1.

Proceedings for termination or modification. A public hearing conducted by the Council in compliance with Subparagraph B. (Periodic review of the agreement), above, shall be subject to the following procedures and requirements. The City shall give notice to the applicant/contracting party or its successor(s)-in-interest of its intention to conduct a public hearing by the Council which might result in termination or modification of the agreement. The notice shall contain all of the following:

a.

The time and place of the hearing, which shall be conducted by the Council;

b.

A statement as to whether or not the City proposes to terminate and/or modify the development agreement; and

c.

Other information that the City Manager considers necessary to inform the applicant/contracting party or its successor(s)-in-interest of the nature of the proceedings.

2.

Hearing on termination or modification of development agreement.

a.

At the time and place set for the hearing on termination or modification, the applicant/contracting party or its successor(s)-in-interest shall be given an opportunity to be heard.

b.

The applicant/contracting party or its successor(s)-in-interest shall be required to demonstrate good faith compliance with the terms and conditions of the agreement. The burden of proof on this issue shall be on the applicant/contracting party or its successor(s)-in-interest.

c.

If the Council finds, based upon substantial evidence in the administrative record that the applicant/contracting party or its successor(s)-in-interest has not complied in good faith with the terms and conditions of the agreement, the Council may, among other remedies, terminate or modify the agreement.

d.

The Council may impose those conditions to the action it takes as it considers reasonable and necessary to protect the interests of the City.

e.

The decision of the Council on the termination or modification of the agreement shall be final.

9107.11.090 - Effect of Development Agreements.

A.

Rules in Force at the Time of Execution. Unless otherwise provided by the development agreement, the policies, regulations, and rules governing allowed uses of the land, density, design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, are the policies, regulations, and rules in force at the time of execution of the development agreement.

B.

Application of New Policies, Regulations, and Rules. In compliance with Government Code Section 65866, and notwithstanding Subparagraph A., above, a development agreement shall provide for the following reservations of rights, and the City shall not be prevented from applying new policies, regulations, and rules upon the applicant, nor shall a development agreement prevent the City from conditionally approving or denying any subsequent development project application on the basis of the new policies, regulations, and rules where the new policies, regulations, and rules consist of the following:

1.

Processing fees by the City to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals;

2.

Procedural regulations relating to applicable Review Authorities, applications, findings, notices, petitions, records, and any other matter of procedure;

3.

Policies, regulations, and rules governing construction and engineering standards and specifications applicable to public and private improvements, including all uniform codes adopted by the City and any local amendments to those codes adopted by the City;

4.

Regulations which may conflict with the development agreement and any approved plan for development but which are reasonable and necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety;

5.

Regulations that do not conflict with those policies, regulations, and rules specified in the development agreement or any approved plan for development; and

6.

Regulations which may conflict with those policies, regulations, and rules specified in the development agreement or any approved plan for development but to which the applicant/contracting party or its successor(s)-in-interest consents.

9107.11.100 - Approved Development Agreements.

Development agreements approved by the Council shall be on file with the City Clerk.

9107.11.110 - Post Decision Procedures.

The procedures and requirements in Section 9108.11 (Permit Implementation, Time Limits, and Extensions), and those related to appeals, public notices and hearings, revocation, and enforcement in Division 8 (Development Code Administration) shall apply following the decision on a Development Agreement application.

Section 9107.13 - Home Occupation Permits

9107.13.010 - Purpose and Intent.

It is the purpose of this Section to:

A.

Allow for the conduct of home occupations that are deemed incidental to, and compatible with, surrounding residential uses;

B.

Recognize that a residential property owner or resident has a limited right to conduct a small business from a residence (single-family, multifamily, any mixed use development, or accessory dwelling), and that a neighbor, under normal circumstances, would not be aware of its existence;

C.

Maintain the residential character of residential neighborhoods; and

D.

Prevent the use of home occupations from transforming a residential neighborhood into a commercial area.

9107.13.020 - Applicability.

A.

Incidental and Secondary Use. The Home Occupation Permit is intended to allow for home occupations that are conducted within a dwelling located in a residential zone, and are clearly incidental and secondary to the use of the dwelling for residential purposes and compatible with surrounding residential uses.

B.

Home Occupation Defined.

1.

A home occupation represents a legal commercial enterprise conducted by an occupant(s) of the dwelling.

2.

Home occupations are uses that generally do not interrupt or interfere with the general nature or residential character of the residential neighborhood. The uses that meet the performance standards specified in Section 9107.13.070 (Compliance with Standards and Conditions), below, are allowed home occupations.

3.

Any storage of flammable or hazardous materials for a home occupation shall be subject to review and approval of the City Fire Department.

C.

Home Occupation Prohibited Without a Permit. No person shall engage in business or transact and carry on any business, calling, profession, occupation, or trade, on any property zoned for residential purposes without an approved and unrevoked or unsuspended Home Occupation Permit.

D.

No Permit on Site with Violations. No permit shall be issued for a property on which there exists a violation of the law.

E.

Permit Required. The establishment of a home occupation within a residence (single-family, multifamily, mixed use, or accessory dwelling) shall be regulated by a one-time application and fee, in compliance with the Fee Schedule.