Chapter 21.70 — DEVELOPMENT AGREEMENTS

This chapter is adopted under the authority of Government Code Sections 65864 — 65869.5 . This chapter shall be applicable to any project for which an applicant requests consideration of a development agreement.

(Ord. 9643 § 1, 1982; Ord. NS-302 § 1, 1995)

• A. An application for a development agreement may be made by any person having a legal or equitable interest in real property for the development of the real property or by that person's authorized agent. The application shall:

  1. Be made in writing on a form provided by the City Planner;

  2. State fully the circumstances and conditions relied upon as grounds for the application;

  3. Be accompanied by adequate plans, a legal description of the property involved and all other materials as specified by the City Planner;

  4. Be accompanied by the form of development agreement agreeable to the City Planner and City Attorney. The proposed agreement shall contain all the elements required by Government Code Section 65865.2 and may include any other provisions permitted by law, including requirements that the applicant provide sufficient security approved by the City Attorney to ensure provision of public facilities;

  5. Be accompanied by a fiscal impact analysis, if the applicant claims that the project will have an economic benefit to the city.

• B. The City Planner shall require an applicant or the applicant's authorized agent to submit proof of interest in the real property and of the authority of the agent to act for the applicant. Before processing the application, the City Planner shall obtain the opinion of the City Attorney as to the sufficiency of the applicant's interest in the real property to enter into the agreement.

(Ord. 9643 § 1, 1982; Ord. 1261 § 54, 1983; Ord. NS-302 § 2, 1995; Ord. CS-164 § 10, 2011; Ord. CS-178 § CXV, 2012)

• A. At the time of filing the application, the applicant shall pay the application fee contained in the most recent fee schedule adopted by the City Council.

  1. Nothing in this chapter shall relieve the applicant from the obligation to pay any other fee for a city approval, permit or entitlement required by this code.

  2. The city may require the applicant to agree to pay the city's costs in negotiating, preparing and processing the development agreement, including the fees and expenses of special counsel and any other consultants engaged by the city in connection with the development agreement.

• (Ord. 9643 § 1, 1982; Ord. NS-302 § 3, 1995; Ord. CS-178 § CXV, 2012)

• A. For any development agreement entered into on or after January 1, 2004, the city shall comply with Government Code Section 66006 et seq., the Mitigation Fee Act, with respect to any fee it receives or costs it recovers pursuant to this chapter.

• B. The Mitigation Fee Act requires the city to deposit developer fees or costs reimbursements collected associated with the development agreement into a separate capital facilities account or fund and spend the money only for the purpose for which it was collected. The city must provide an annual public report accounting for these funds.

(Ord. 9643 § 1, 1982; Ord. 1261 § 54, 1983; Ord. NS-302 § 4, 1995; Ord. CS-164 § 10, 2011; Ord. CS-178 § CXVII, 2012)

Notice of an application for a development agreement shall be given pursuant to the provisions of Sections 21.54.060.A and 21.54.061 of this title.

(Ord. 9643 § 1, 1982; Ord. NS-302 § 5, 1995; Ord. CS-164 § 10, 2011; Ord. CS-178 § CXVII, 2012)

• A. An application for a development agreement may be approved, modified or denied by the City Council based upon its review of the facts as set forth in the application, the circumstances of the particular case, and evidence presented at the public hearing.

• B. Prior to the City Council's decision on a development agreement, the application shall be processed as follows:

  1. The City Planner shall review the application and may reject it if it is incomplete or inaccurate for processing. If the Planner finds that the application is complete, he or she shall accept it for filing.

  2. After the application is found to be complete, the City Planner shall forward a copy of the application and proposed agreement to the City Attorney for review.

  3. If the applicant claims that the project will have an economic benefit to the city, the City Planner shall forward a copy of the application, proposed agreement, and fiscal impact analysis, to the Finance Director for review.

  4. If the project is located within the coastal zone, the city shall forward copies of any proposed development agreement to the California Coastal Commission for review and invite comments as to its consistency with the certified local coastal program.

  5. The City Planner shall review the application and proposed agreement and shall prepare a report and recommendation to the Planning Commission on the agreement; said report shall include the recommendations of the City Attorney and Finance Director.

  6. The Planning Commission shall hear and consider the application and prepare a recommendation and findings for the City Council, including the matters stated in Section 21.70.050 of this chapter.

• C. The City Council shall hear the matter and consider the findings and recommendations of the Planning Commission.

• D. The City Council may approve the development agreement only if all the findings of fact in Section 21.70.060 of this chapter are found to exist.

• E. If the City Council approves the development agreement, it shall adopt an ordinance approving the agreement and directing the Mayor to execute the agreement after the effective date of the ordinance on behalf of the city. Before execution, each agreement shall be approved as to form by the City Attorney.

(Ord. 9643 § 1, 1982; Ord. 1261 § 54, 1983; Ord. NS-302 § 6, 1995; Ord. CS-164 § 10, 2011; Ord. CS-178 § CXVII, 2012)

• A. The City Council shall not approve a development agreement unless it finds that the agreement:

  1. Is consistent with the objectives, policies, general land uses and programs specified in the general plan, the certified local coastal program and any applicable specific plan;

  2. Is compatible with the uses authorized in and the regulations prescribed for the land use district in which the real property is located and all other provisions of Title 21 of this code;

  3. Is in conformity with public convenience, general welfare and good land-use practices;

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

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

  6. Is consistent with the provisions of Government Code Sections 65864 — 65869.5 ;

  7. Where applicable, ensures provision of public facilities in a manner consistent with the general plan;

  8. When applicable, is consistent with the provisions of Title 20 of this code;

9. Will result in the provision of economic, environmental, recreational, cultural or social benefits to the city which would not be attainable without approval of the agreement.

(Ord. 9643 § 1, 1982; Ord. 1261 § 54, 1983; Ord. NS-302 § 7, 1995; Ord. CS-164 § 10, 2011; Ord. CS-178 § CXVII, 2012)

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 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. (Ord. 9643 § 1, 1982)

• (a) Either party may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into. The amendment or cancellation permitted by this section must be by mutual consent of the parties.

• (b) The procedure for proposing and adoption of an amendment to or cancellation in whole or in part of the development agreement is the same as the procedure for entering into an agreement in the first instance. However, where the city initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least thirty days in advance of the giving of public notice of the hearing to consider the amendment or cancellation.

• (Ord. 9643 § 1, 1982)

• (a) Within ten days after the city enters into the development agreement, the City Clerk shall have the agreement recorded with the County Recorder.

• (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. 9643 § 1, 1982)

• (a) The City Council or the Planning Commission, if the matter has been referred, shall conduct a public review hearing at which 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.

• (b) The City Council 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.

• (c) If the City Council 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, no other action is necessary.

• (d) If the City Council finds and determines on the basis of substantial evidence that the applicant has not complied in good faith with the terms and conditions of the agreement during the period under review, the council may initiate proceedings to modify or terminate the agreement.

• (Ord. 9643 § 1, 1982)

• A. A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest.

• B. Notice of intention to amend or cancel any portion of the agreement shall be given in the manner provided by Section 21.54.060.A of this title.

• (Ord. 9643 § 1, 1982; Ord. CS-178 § CXIX, 2012)

In no event shall the applicant or his/her successors in interest be entitled to any damages against the city upon termination of the agreement.

(Ord. 9643 § 1, 1982)

Approval and construction of a portion or phase of a development pursuant to the agreement shall not vest any rights to construct the remainder or any other portion of the development nor create any vested rights to the approval thereof if the agreement is terminated as provided in this chapter. (Ord. 9643 § 1, 1982)

The City Council reserves the right to terminate or modify any development agreement after a public hearing if such termination or modification is reasonable and necessary to protect the public health, safety or welfare. (Ord. 9643 § 1, 1982)