§ 16.40

The provisions of this chapter will provide assurance to the applicants for development projects that, upon approval of a project, the applicant may proceed with the project in accordance with the policies, rules and regulations, and subject to conditions of approval in effect at the time of approval. Development

agreements entered into pursuant to this chapter will strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic costs of development, and provide a level of benefit to the city that exceeds the benefits normally derived from development projects.

Applications for development agreements are governed by these sections and, where applicable, the zoning ordinance, use permits and the subdivision ordinance.

(Ord. 325 §1(part), 2002).

These regulations are adopted under the authority of Government Code Sections 65864 through 65869.5. A development agreement is a legislative act, which shall be approved by ordinance and is subject to referendum (Government Code Section 65867.5). A development agreement is not a "development project" (Government Code Section 65928) which may be approved by operation of law because of the lapse of time (Government Code Section 65956).

(Ord. 325 §1(part), 2002).

A.

The director of planning shall prescribe the form for each application, notice and documents provided for or required under these regulations for the preparation and implementation of development agreements.

B.

The director of planning may require an applicant to submit such information and supporting data as the director of planning considers reasonably necessary to process the application. Adequate funds to secure

costs for hiring consultants, including attorney services, may also be required.

C.

The application shall be accompanied by a fee(s) in an amount to be set by the city.

D.

The applicant shall present to the director of planning the written consent to the development agreement of all parties having any record title interest in the real property which is subject to the development agreement, including mineral rights owners who have the right of surface entry. The city may waive the requirement for the signatures of mineral rights owners if a written request is filed in conjunction with the filing of a proposed development agreement as outlined below. At the discretion of city, all such requests shall be accompanied by documentation that adequately supports all of the following findings:

1.

Waiver of the requested signatures of the owners of interest can be determined to be in the public interest that development not be prevented.

2.

It can be determined that the surface owner has exhausted all reasonable means for locating owners of interest and obtaining their signatures.

3.

In the case of requests for waiver of signatures of mineral rights owners, in addition to the above findings, it can be determined that the proposed development agreement provides for future development of mineral rights through the establishment of a zoning district, pursuant to the city's zoning ordinance, that permits the exploration and extraction of the underlying minerals as a matter of right.

E.

The applicant shall provide sufficient information to enable the director to perform an initial study pursuant to Public Resources Code Section 21160.

F.

The applicant shall provide sufficient information to establish that the project is consistent with the city's general plan and any applicable specific plan.

G.

The applicant shall submit a proposed development agreement that shall include the following:

1.

A description of the property sought to be covered by the agreement, including a legal description;

A description of the proposed uses, height and size of buildings, density or intensity of use, and provision for reservation or dedication of land for public purposes;

3.

Conditions, terms, restrictions, and requirements for subsequent city discretionary actions;

4.

Proposed time when construction would be commenced and completed, including a phasing plan;

5.

Proposed public benefits inclusive of an implementation phasing plan;

6.

Termination date for the agreement, not to exceed ten (10) years from the date of execution, except where a longer time is necessary to fund debt financing requirements for public facilities or the legislative body makes a determination that a longer period of time is necessary in light of the magnitude of the project;

7.

A description of all local permits required for project implementation;

8.

A proposed schedule for annual review which details what progress shall be expected to be completed during the course of each year of the proposed development agreement;

9.

An agent representing the legal ownership for all property subject to the proposed development agreements;

10.

A description of the infrastructure, public facilities, and public services required to serve the proposed;

11.

A description of any variances or modifications to existing standards, policies or ordinances;

12.

An illustrative map.

H.

A development agreement may include conditions and restrictions imposed by the city with respect to the project, including those conditions and restrictions proposed in an environmental impact report or other

environmental documents applicable to the project prepared and certified under the California Environmental Quality Act, and the city's regulations with respect thereto, in order to eliminate or mitigate adverse environmental impacts of the project.

I.

If the development agreement requires applicant financing of necessary excess public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

J.

All development agreements shall contain an indemnity clause requiring the developer to indemnify and hold the city harmless against claims arising out of any or all prior or subsequent related development approvals, including all legal fees and costs in a form acceptable to the city attorney.

K.

A development agreement is a contract that is negotiated and voluntarily entered into by city and developer and may contain any additional or modified conditions,

terms, or provisions agreed upon by the parties, including sanctions and failure to meet requirements.

L.

A development agreement may include conditions relating to financial guarantees for performance of obligations stated in the agreement.

(Ord. 325 §1(part), 2002).

The city council shall, by separate resolution, fix the schedule of fees and charges imposed for the filing and processing of each application and document provided for or required under these regulations.

(Ord. 325 §1(part), 2002).

(Ord. No. 449, § 3, 6-19-2018)

Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has legal or equitable interest in the real property which is the subject of the development agreement. Applicant includes authorized agent. The director of planning may require an applicant to submit proof of interest in the real property and of the authority of the agent to act for the applicant. The director of planning may require an applicant or agent to submit a title report from a reputable title insurance company or other evidence to verify the legal or equitable interest of the applicant in the property. In the case of multiple ownerships, all owners with a legal or equitable interest in the real property shall be a party to the development agreement. In addition to the city and the applicant, any federal, state, or local government agency, or any nonprofit agency, may be included as a party to any development agreement.

(Ord. 325 §1(part), 2002).

A project shall not qualify for a development agreement unless:

1.

The project shall occupy at least five (5) developed acres; or

2.

Upon completion, the project shall result in the construction of at least:

a.

Two hundred fifty (250) dwelling units, or

b.

Two hundred fifty thousand (250,000) square feet of industrial space; or

3.

The project will be constructed in phases over an anticipated period of not less than five (5) years.

4.

The project is a commercial cannabis activity as established in the Municipal Code, Title 8 Health and Safety.

(Ord. 325 §1(part), 2002).

(Ord. No. 480, § 2, 4-26-2022)

Each application shall be accompanied by the development agreement proposed by the applicant. This requirement may also be met by designating the planning department's standard form of development agreement, when available, and including specific proposals for changes in or additions to the language of the standard form.

(Ord. 325 §1(part), 2002).

16.40.080 - Review of application.

A.

The planning director shall review each application to determine whether it is complete and accurate. If the application is found to be incomplete or inaccurate, the planning director shall reject the application and inform the applicant of the items necessary to properly complete the application. The planning director

shall reject any application where the development agreement would be inconsistent with the general plan, any applicable specific plan, zoning, or any other land use regulations applicable to the subject property. If the application for a development agreement is submitted in conjunction with an application for other land use approvals, the proposed development agreement shall be reviewed for consistency with the existing and, separately, the proposed land use approvals.

B.

If the planning director determines that the application is complete and accurate, copies of the application shall be forwarded to each appropriate city department, applicable outside agency, and any agency or individual who requests, in writing, a copy of the application. The planning director shall specify a time period for department, agency, and individual responses to the application to be submitted to the planning director. Following review of said responses and after consultation where appropriate, the planning director shall prepare a staff report and recommendation to the planning commission.

(Ord. 325 §1(part), 2002).

Where a development agreement requires a general plan amendment, specific plan, rezoning, use permit, preliminary subdivision, or standard subdivision application, these applications shall be made currently with, or precede the development agreement; their consideration shall be concurrent with or precede the consideration of the development agreement. Where a development agreement is proposed for a commercial cannabis permit as established by chapter 8.29.05 Commercial Cannabis, the development agreement may precede the submittal of a commercial cannabis permit. In such a situation, a condition of the development agreement shall require the developer to obtain a state commercial cannabis permit/license and a city commercial cannabis permit pursuant to title 8 of Arvin Municipal Code.

(Ord. 325 §1(part), 2002).

(Ord. No. 480, § 2, 4-26-2022)

A.

After preparation of the initial study, the director of planning shall schedule an environmental determination of the development agreement and a concurrent general plan amendment, specific plan, rezoning, use permit, or preliminary map before the planning commission, as the same may be required.

B.

The planning commission shall determine whether the development agreement project shall require an environmental impact report (EIR) or a negative declaration. If an EIR is required, the planning commission shall define its focus and scope in compliance with title 18 of Arvin Municipal Code.

C.

Appeal may be taken to the city council from the environmental determination of the planning commission in the same manner as an appeal from the decision on a use permit.

D.

Upon a determination that the planning commission has failed to meet at a scheduled date for the review of a proposed development agreement, or that the planning commission has failed to act on a submitted development agreement, the city council may take any and all necessary actions to conduct the review evaluation and disposition of the pending development agreement. Nothing contained herein shall preclude the city council from initiating its review process independent of planning commission action.

(Ord. 325 §1(part), 2002).

(Ord. No. 480, § 2, 4-26-2022)

16.40.110 - Notices and hearing.

Notices and hearings for development agreements are governed by these sections.

(Ord. 325 §1(part), 2002).

16.40.120 - Duty to give notice.

The director of planning shall give notice of intention to consider adoption of the development agreement and of any other public hearing required by law or these rules.

(Ord. 325 §1(part), 2002).

16.40.130 - Requirements for form and time of notice of intention to consider adoption of development agreement.

A.

Form of Notice. The form of notice of intention to consider adoption of development agreement shall contain:

1.

The time and place of the hearing;

2.

Identity of the hearing body;

3.

A general explanation of the matter to be considered including a general description of the area affected;

4.

A general description, in text, or by diagram of the location of the real property; and

5.

Other information required by specific provision of these regulations or which the director of planning considers necessary or desirable.

B.

Time and Manner of Notice. The time and manner of giving notice is by:

1.

Publication or Posting. Publication at least once in a newspaper of general circulation, published and circulated in the city or county at least ten (10) days prior to the hearing (Government Code Section 65090).

2.

Mailing. Mailing of the notice to all persons shown on the last equalized assessment roll as owning real property within three hundred (300) feet of the property which is the subject of the proposed development agreement at least ten (10) days prior to the hearing. If the number of owners to whom notice is to be mailed is greater than one thousand (1,000), the director of planning may, as an alternative, provide notice in the manner set forth in Section 65091(a)(3) of the Government Code.

C.

Notice of the hearing shall be mailed or delivered at least ten (10) days prior to the hearing to every agency expected to provide water, sewage, streets, schools, or other essential facilities to the project whose abilities to provide those facilities or service may be significantly affected.

D.

Additional Notice. The planning commission or city council, as the case may be, may direct that notice of the public hearing be given in a manner that exceeds the notice requirements prescribed by state law.

E.

Declaration of Existing Law. The notice requirements referred to in subsections A and B of this section are declaratory of existing law (Government Code Sections 65867 and 65090 through 65095 as incorporated by reference). If state law prescribes a different notice requirement, notice shall be given in that manner.

(Ord. 325 §1(part), 2002).

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

(Ord. 325 §1(part), 2002).

The public hearing shall be conducted as nearly as may be in accordance with the procedural standards adopted under 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.

(Ord. 325 §1(part), 2002).

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 matter 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.

(Ord. 325 §1(part), 2002).

Standards of review, findings and decision for development agreements are governed by these sections.

(Ord. 325 §1(part), 2002).

After hearing by the planning commission, the commission shall make its recommendation in writing to the city council. The recommendation shall include the planning commission's determination whether or not the development agreement proposed:

A.

Is consistent with the objectives, policies, general land uses, and programs specified in the general plan and any applicable specific plan;

B.

Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located;

C.

Is in conformity with public convenience, general welfare, and good land use practice;

D.

Will be detrimental to the health, safety, and general welfare; and

E.

Will adversely affect the orderly development of property or the preservation of property values. The recommendation shall include the reason for the recommendation.

In the event that the city council conducts the planning commission review pursuant to the provision of Section 16.40.100, the council shall be required to make the determinations set forth in subsections A through E of this section.

(Ord. 325 §1(part), 2002).

(Ord. No. 480, § 2, 4-26-2022)

16.40.190 - Decision by city council.

A.

After the city council completes the public hearing, it may accept, modify, or disapprove the recommendation of the planning commission. It may, but need not, refer matters not previously considered by the planning commission during its hearing back to the planning commission for report and recommendation. The planning commission may, but need not, hold a public hearing on matters referred back to it by the city council.

B.

After the city council completes the public hearing, the city council may not approve the development agreement unless it finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.

(Ord. 325 §1(part), 2002).

(Ord. No. 480, § 2, 4-26-2022)

If the city council approves the development agreement, it shall do so by the adoption of an ordinance.

After the ordinance approving the development agreement takes effect, the city may enter into the agreement.

(Ord. 325 §1(part), 2002).

Amendment and cancellation of development agreements by mutual consent are governed by these sections.

(Ord. 325 §1(part), 2002).

16.40.220 - Initiation of amendment or cancellation by mutual consent.

Either party may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into.

(Ord. 325 §1(part), 2002).

The procedure for choosing and adoption of an amendment to or cancellation in whole or in part of the development agreement is the same as the procedure for the entering into an agreement in the first instance. (See Sections 16.40.010 through 16.40.190 of this chapter.)

However, where the city through its planning department initiates the proposed amendment to, or cancellation of, in whole or in part, the development agreement, it shall first give notice to the applicant of its intention to initiate such proceedings at least thirty (30) days in advance of the hearing by the planning commission to consider the amendment or cancellation required by Section 16.40.130.

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 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 and construction standards and specification, 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.

(Ord. 325 §1(part), 2002).

The applicant shall preserve the written consent to the development agreement of all parties having any record title interest in the real property which is the subject of the development agreement prior to recordation of the agreement.

(Ord. 325 §1(part), 2002).

16.40.250 - Recordation of development agreement, amendment or cancellation.

A.

Within ten (10) days after the city and applicant entered into the development agreement, the city clerk shall have the agreement recorded with the county recorder provided that the applicant has obtained the written consent of all parties having any title interest as required by Section 16.40.240.

B.

If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Government Code Section 65868, or if the city terminates or modifies the agreement as provided in 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 such action recorded with the county recorder.

(Ord. 325 §1(part), 2002).

16.40.260 - Periodic review.

Periodic review for development agreements are governed by these sections.

(Ord. 325 §1(part), 2002).

16.40.270 - Time for an initiation of review.

A.

The city shall review the development agreement every twelve (12) months from the date the agreement is entered into. The time for review may be modified either by agreement between the parties upon recommendation of the planning staff and an affirmative vote of at least three (3) members of the planning commission.

B.

The decision of the planning commission may be appealed to the board of supervisors or the city council in the same manner as an appeal on a use permit.

(Ord. 325 §1(part), 2002).

16.40.280 - Notice of periodic review.

The planning director shall begin the review proceeding by giving notice that the county or city intends to undertake a periodic review of the development agreement to the property owner. The planning director shall give the notice at least twenty (20) days in advance of the time at which the matter will be considered by the commission.

(Ord. 325 §1(part), 2002).

16.40.290 - Delegation or referral to planning commission or planning director.

The city council hereby delegates to the planning commission the periodic review of development agreements.

(Ord. 325 §1(part), 2002).

The planning commission shall conduct a public hearing at which the property owner must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue shall be upon the property owner.

(Ord. 325 §1(part), 2002).

16.40.310 - Findings upon public hearing.

The planning commission shall determine upon the basis of substantial evidence whether or not the property owner has, for the period under review, complied in good faith with the terms and conditions of the agreement.

(Ord. 325 §1(part), 2002).

A.

If the planning commission finds and 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, the review for that period is concluded.

B.

If the planning commission finds and 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 city may initiate proceedings to modify or terminate the agreement.

The property owner may appeal a determination pursuant to subsection B of this section to the city council in accordance with the rules on appeal for use permits.

(Ord. 325 §1(part), 2002).

16.40.330 - Modification or termination.

Modification or termination of development agreements are governed by these sections.

(Ord. 325 §1(part), 2002).

16.40.340 - Proceedings upon modification or termination.

If, upon a finding under Section 16.40.320(B), the city determines to proceed with modification or termination of the agreement, the city shall give notice to the property owner of its intentions to do so. The notice shall contain:

A.

The time and place of the hearing;

B.

A statement as to whether or not the city proposes to terminate or modify the development agreement;

C.

Other information which the city considers necessary to inform the property owner of the nature of the proceeding.

(Ord. 325 §1(part), 2002).

At the time and place set for the hearing on modification or termination, the property owner shall be given an opportunity to be heard. The city council may refer the matter back to the planning commission for further proceeding or for report and recommendation. The city council may impose those conditions to the action it takes as it considers necessary to protect the interests of the city. The decision of the city council is final.

(Ord. 325 §1(part), 2002).

A.

Unless otherwise provided by the development agreement, the city's rules, regulations, and official policies governing permitted uses of the property, density, design; improvement and construction standards, and specifications applicable to development of the property shall be those city rules, regulations, and official policies in force on the effective date of the development agreement; however, there is no absolute vesting as to timing and phasing of any project, except as specifically authorized in the development agreement.

B.

A development agreement shall not prevent the city, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth in the development agreement. Additionally, a development agreement shall not prevent the city, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which the city determines is required for the public health, safety, or welfare, except as otherwise provided for in the development agreement.

C.

A development agreement shall not prevent the city from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.

D.

All development agreements shall be subject to the regulations and requirements of the laws of the state of California, the Constitution of the United States, and codes, statutes or executive mandates, and any court decisions, state or federal, thereunder. In the event that any such law, code, statute, mandate, or decision made or enacted after a development agreement has been entered into prevents or precludes compliance with one (1) or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such law, code, statute, mandate, or decision.

E.

All development agreements entail and consist of a separate procedure from other land use planning procedures and shall not take the place of the zoning ordinance, the general plan, a specific plan,

development plan, conditional use permit, subdivision approval, building permit, or any other city planning function. Public hearings on a proposed development agreement may, but need not, be held concurrently with the public hearings on related land use approvals.

F.

This chapter governs the interpretation of any development agreement enacted under this chapter.

G.

The procedures for enforcement, modification, or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are nonexclusive. A development agreement may be enforced, modified, or terminated by any manner otherwise provided by law or by the terms of the development agreement. However, the developer's sole remedy shall be injunctive, not damages. The agreement shall not provide for any form of binding arbitration.

H.

Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter and development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in a development agreement.

I.

Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure; and judicial review of any city action taken by the city pursuant to this chapter, other than initial approval of a development agreement, shall be writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure. The use of the term "substantial evidence" in this chapter with respect to the quantum of proof necessary in connection with a finding of noncompliance is not intended to limit, nor impose a standard of review upon, any court pursuant to a proceeding initiated for that purpose.

J.

Any action or proceeding to attack, review, set aside, void, or annul any decision of the city taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety (90) days after the date of the decision.

(Ord. 325 §1(part), 2002).

The termination of this chapter shall not affect the validity of, or procedure governing development agreements into which the city has entered.

(Ord. 325 §1(part), 2002).

Title 18 - CALIFORNIA ENVIRONMENTAL QUALITY ACT IMPLEMENTATION - ENVIRONMENTAL CLEARANCE

Chapters:

Chapter 18.04 - GENERAL PROVISIONS AND PROCEDURES

Sections:

18.04.010 - Adoption by reference.

A.

This title incorporates by reference and adopts the objectives, criteria and procedures for environmental review contained in the California Environmental Quality Act (CEQA), Public Resources Code Section 21000 et seq. and the CEQA Guidelines.

B.

The city council in the implementation of CEQA, has adopted implementing procedures by resolution which may be amended from time to time.

(Ord. No. 480, § 2, 4-26-2022)