Calaveras County Municipal Code Ch. 17.37 development agreements

This chapter establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects, as authorized in Government Code Sections 65864-65869.5, that will assure the county that a proposed project will proceed to its completion in compliance with the plans submitted by the applicant and to guarantee the applicant that the project can proceed to its completion in accordance with the rules and regulations in effect at the time of project approval.

Development agreements are intended to accomplish two primary purposes: (1) provide more certainty to a landowner or developer through the grant of vested property rights for an agreed-upon term of years; and in return (2) provide more certainty to the county that public amenities and improvements will be provided according to an agreed-upon schedule and a level of quality sufficient to justify the grant of vested rights. Public benefits arising from a development agreement may include, but are not limited to, provision of public facilities such as streets, parks, open space, transportation, schools, utilities, and enhanced law enforcement and fire protection. The establishment of vested rights through a development agreement can ensure reasonable certainty, stability, and fairness in the land use approval process, provide for more efficient uses of resources, and foster cooperation between the public and private sectors in the area of land use planning.

The county incorporates by reference the provisions of Government Code Sections 65864-65869.5. In the event of any conflict between those statutory provisions and this chapter, the statutes shall control.

A. This procedure is available where a qualified applicant wishes to enter into such an agreement for development of a property with which the applicant has a legal or equitable interest.

B. Nothing in this chapter shall be interpreted to require that the board of supervisors enter into a development agreement, or that any person be required to enter into a development agreement as a condition of obtaining a permit, approval or other land use grant or entitlement from the county.

Applications for development agreements shall be filed with the planning department in accordance with the provisions set forth in Section 17.27.020, Application Forms and Fees. In addition to any other application requirements, the application for a development agreement shall include data or other evidence in support of the applicable findings required by Section 17.37.060, Required Findings.

A. Required Contents. A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability.

B. Additional Contents. Development agreements may also include the following:

1. Improvements and Fees. A development agreement may include requirements for construction and maintenance of onsite and offsite improvements or payment of fees in lieu of such dedications or improvements.

2. Conditions. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.

3. Phasing. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.

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

5. Indemnity. A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the county harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

6. Performance Obligation Fees. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.

7. Other Items. Other components and provisions as negotiated by county.

A. Planning Commission.

1. Notice. Public notice of hearings by the planning commission for a development agreement shall be given as specified in Section 17.27.070, Public Notice.

2. Hearing. The planning commission shall conduct a public hearing for making recommendations to the board of supervisors in conformance with the provisions of Section 17.27.080, Conduct of Public Hearings.

3. Recommendation to Board of Supervisors. Following the public hearing, the planning commission shall make a written recommendation on the proposed development agreement. The director shall transmit the Planning Commission's written recommendation and complete record of the application to the Board of Supervisors.

a. Approval. If the planning commission has recommended approval of the development agreement, the board of supervisors is required to take final action pursuant to Section 17.37.050.B, Board of Supervisors.

b. Denial. If the planning commission has recommended against the development agreement, the board of supervisors is not required to take any action unless an appeal is filed in accordance with Section 17.27.140, Appeals.

B. Board of Supervisors.

1. Notice. Public notice of hearings by the board of supervisors for a development agreement shall be given as specified in Section 17.27.070, Public Notice.

2. Hearing. If the planning commission recommends approval or an appeal has been filed, after receiving the report from the planning commission but no later than the time specified by Section 65943 of the Government Code, the board of supervisors shall hold a public hearing in conformance with the provisions of Section 17.27.080, Conduct of Public Hearings.

3. Decision. After the board of supervisors completes the public hearing, the board of supervisors shall approve, modify, or deny the development agreement. Approval of a development agreement shall be by ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement. Matters not previously considered by the planning commission during its hearing may, but need not, be referred to the planning commission for report and recommendation. The planning commission may, but need not, hold a public hearing on matters referred to it by the board of supervisors.

The board of supervisors must make the following findings to approve a development agreement:

A. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plans; and

B. The development agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the county as a whole; and

C. The development agreement will not adversely affect the orderly development of property or the preservation of property values; and

D. The development agreement will facilitate the implementation of any applicable specific plan; and

E. The development agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5 and CEQA.

Within ten days of board of supervisors approval of the development agreement, the director shall execute the development agreement on behalf of the county, and the county Clerk shall record the development agreement with the county Recorder.

The applicant shall be required to demonstrate compliance with the provisions of the development agreement at least once every twelve months at which time the director shall review each approved development agreement.

A. Finding of Compliance. If the director, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the director shall issue a finding of compliance, which shall be in recordable form and may be recorded with the county Recorder after conclusion of the review.

B. Finding of Noncompliance. If the director finds the applicant has not complied with the provisions of the development agreement, the director may issue a finding of noncompliance which may be recorded by the county with the county recorder after it becomes final. The director shall specify in writing to the applicant the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or revision pursuant to this chapter.

C. Appeal of Determination. Within seven days after issuance of a finding by the director of compliance or noncompliance, any interested person may file a written appeal of the finding with the board of supervisors. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the board of supervisors. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the director and the expiration of the appeal period without appeal, or the confirmation by the board of supervisors of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.

A. After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the director may refer the development agreement to the board of supervisors for termination or revision. The board of supervisors shall conduct a public hearing. After the public hearing, the board of supervisors may terminate or modify the development agreement, revise the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

B. Mutual Agreement. Any development agreement may be terminated or amended by mutual consent of the parties following the same procedures for entering into a development agreement in the first instance. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and director.

C. Recordation. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the county terminates or revises the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the county Clerk shall record notice of such action with the county recorder.

D. Rights of the Parties After Cancellation or Termination. In the event that a development agreement is cancelled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminated. If a development agreement is terminated following a finding of noncompliance, the county may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the county.

A. Existing Rules and Regulations. Unless otherwise specified in the development agreement, the county's rules, regulations, and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those county rules, regulations and official policies in force on the effective date of the development agreement.

B. Future Rules and Regulations.

1. Unless modified, amended, canceled, or terminated pursuant to this chapter, a development agreement shall be enforceable by any party thereto notwithstanding any change in the general plan or any applicable specific plan, zoning, subdivision, or building regulation or other ordinance or resolution adopted by the county.

2. A development agreement shall not prevent the county, in subsequent actions applicable to the property, from applying new rules, regulations and policies that do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement.

3. A development agreement shall not prevent the county 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.

C. State and Federal Rules and Regulations. In the event that state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the agreement shall be revised or suspended as may be necessary to comply with such state or federal laws or regulations.

The procedures for enforcement, amendment, revision, cancellation, or termination of a development agreement specified in this chapter and in Government Code Section 65865.4 or any successor statute, are nonexclusive. A development agreement may be enforced, amended, revised, cancelled, or terminated by any manner otherwise provided by law or by the provisions of the development agreement.