Chapter 18.108 — Development Agreements

Sections:

• 18.108.010 – Purpose and Intent

• 18.108.020 – Application Requirements

• 18.108.030 – Filing, Processing, and Review

• 18.108.040 – Contents of Development Agreement

• 18.108.050 – Execution and Recordation

• 18.108.060 – Amendment and Cancellation of Development Agreements

• 18.108.070 – Periodic Review

• 18.108.080 – Effect of Development Agreements

• 18.108.090 – Approved Development Agreements

A. Purpose and Intent.

1. A development agreement is a contract between the City and a person with a legal or equitable interest in land subject to development.

2. A development agreement is intended to provide assurance to the applicant/contracting party that an approved project may proceed subject to the policies, rules, regulations, and conditions of approval applicable to the project at the time of execution of the agreement, regardless of any subsequent changes to City policies, rules, and regulations after project approval, unless deemed necessary for public health and safety by the City Council or a regulatory agency, or as otherwise provided in Government Code Section 65866 or Section 65869.5.

3. In return, the City is provided assurance that the project would further important citywide goals and policies which have been officially recognized by the Council, and that the project will provide the City with significant, tangible benefits beyond those that may be commonly required by the City through project conditions of approval.

• B. Construing the Provisions. In construing the provisions of any development agreement, those provisions shall be read to fully effectuate, and to be consistent with, the language of this chapter, the Government Code, and the agreement itself, consistent with standard rules of contract interpretation. Should any apparent discrepancies among the meaning of these documents arise, reference shall be made to the following documents, and in the following order:

  1. The provisions of Government Code Section 65864 et seq;

  2. The provisions of this chapter; and

  3. The plain terms of the development agreement itself.

• A. Equitable Interest. Person(s) having a legal or equitable interest in real property may apply to enter into a development agreement provided all of the following criteria are met:

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1. The status of those having a legal or equitable interest in the subject real property is established to the satisfaction of the Director. An applicant may also include an authorized agent; and

2. The application is made on approved forms, contains all lawfully required documents, materials, and information, and is filed with the Department as required by the Development Code.

• B. Director Review and Recommendations. The Director is empowered to receive, review, process, and prepare, together with recommendations for Commission and Council consideration, all applications for development agreements. The Director may call upon all other City departments for timely assistance.

• C. Fees. Processing fees, as established by the Master Fee Schedule, shall be collected for an application for a development agreement. Additionally, appropriate fees shall be established and collected for amendments to a development agreement and the required periodic review.

• A. Filing. An application for a development agreement shall be filed with the Department and shall be accompanied by detailed data and materials identified in the most current Department handout for development agreement applications. If a development agreement is applied for in conjunction with other development approvals, the entire application shall be processed comprehensively as a package.

• B. Project Review Procedures. Following receipt of a completed application, the Director shall investigate the facts necessary for action consistent with the purpose of this chapter.

C. Notice and Hearings.

1. The Director, 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, in the form of a resolution, to the Council that it approve, conditionally approve, or deny the application based on the required findings.

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. Following conclusion of the public hearing, the Council shall approve, conditionally approve, or deny the application based on the required findings.

3. Notice of the hearings 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.

• D. Findings and Decision. The City Council may approve a development agreement only if it first makes all of the following findings:

  1. The development agreement is in the best interests of the City;

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

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3. The development agreement will promote the public convenience, health, interest, safety, and general welfare of the City;

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

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

6. The project will further important Citywide goals and policies that have been officially recognized by the Council; and

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

• A. Mandatory Contents. As set forth in Government Code Section 65865.2, a development agreement shall

  1. Specify the:

     • a. Duration of the agreement;

     • b. Allowed uses for the subject property; and

     • c. Density/intensity of the allowed uses.

  2. Describe the:

     • a. Maximum height and size of proposed structures by clearly identifying and referring to the documents and exhibits approved;

     • b. Provisions, if any, for reservation or dedication of land for public purposes; and

     • c. Provisions, if any, for the protection from either a future growth control ordinance or a future increase in development and/or effect fees;

  3. Provide for an amendment review procedure which may incorporate the following:

     • a. Director approval for minor modifications, as defined in the development agreement, which are then submitted to the Planning Commission on the consent calendar; and

     • b. Council approval for major amendments pursuant to Government Code Section 65868.

  4. Upon a finding by the City Council, adopted following a noticed public hearing, and based upon substantial evidence, the City Council may suspend or modify one or more provisions of an approved development agreement in order to address the subsequent discovery of health and safety issues posing an imminent threat or danger to public health and safety, such as a new and previously unstudied and unmitigated environmental health hazard. Any such suspension or modification shall be processed in accordance with Government Code Section 65868.

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• B. Permissive Contents. A development agreement may contain:

  1. Conditions, terms, restrictions, and requirements for subsequent discretionary actions; provided, the conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density/intensity of development specified in the agreement;

  2. Provisions requiring construction be commenced within a specified time and that the project, or any single phase, be completed within a specified time;

  3. Terms and conditions relating to applicant financing, including reimbursement, of necessary public improvements and facilities including applicant participation in benefit assessment proceedings; and

  4. Other terms, conditions and requirements as the Council may deem necessary and proper, including requirement(s) for ensuring performance of all provisions of the agreement in a timely manner by the applicant/contracting party.

A. Adoption of Ordinance Becomes Effective.

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

2. The City shall not execute a development agreement until on or after the date upon which the ordinance approving the agreement becomes effective.

• B. Recordation of Agreement. A development agreement shall be recorded by the applicant/developer in the County Recorder’s Office no later than 10 days after it is executed. A copy of the recorded document shall be provided to the Director.

• A. Proposed Amendment or Cancellation. Either party to the agreement may propose an amendment to or cancellation of the development agreement.

• B. Procedures. Amendment to or cancellation of the development agreement must be publicly noticed but only requires a hearing before the City Council.

• C. City Initiated Amendment or Cancellation. Where the City initiates the amendment or cancellation of the development agreement, it shall first give notice to the property owner of its intention to initiate the proceedings at least 10 days before giving public notice to consider the amendment or cancellation. If the City initiates an amendment or cancellation, it may only do so based upon the provisions of the Government Code.

A. Subject to Periodic Review.

1. Every development agreement approved and executed shall be subject to periodic City review during the full term of the agreement.

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2. The City shall review the development agreement upon initiation by the applicant/ contracting party or its successor(s)-in-interest, but at least every 12 months from the date the agreement is entered into, as required by Government Code Section 65965.1.

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

   • a. Affirmative vote of a majority of the members of the Commission; or

   • b. Affirmative vote of at least three members of the Council.

4. The review schedule shall be specified in the development agreement.

• B. Purpose of Periodic Review. The purpose of the periodic review is to determine whether the applicant/contracting party or its successor(s)-in-interest has complied in good faith with the terms and conditions of the development agreement. The burden of proof is on the applicant/contracting party or its successor(s) to demonstrate compliance, to the full satisfaction of, and in a manner prescribed by, the City.

C. Notice of Periodic Review.

1. The applicant/contracting party or its successor(s)-in-interest shall initiate the review proceeding by filing an application.

2. Upon receipt of a complete application, the Director shall begin the review proceeding by giving notice the City intends to undertake a periodic review of the development agreement to the applicant/contracting party or its successor(s)-in-interest, to any person who has filed a written request for notice with the Director and has paid the required fee for the notice.

3. The Director shall give the notice at least 10 days in advance of the time when the matter will be considered by the Commission.

• D. Review by Commission. Review shall be conducted by the Commission, unless otherwise provided for in the development agreement.

  1. The Commission shall conduct a hearing at which the applicant/contracting party or its successor(s)-in-interest shall demonstrate good faith compliance with the terms of the development agreement.

  2. The burden of proof is on the applicant/contracting party or its successor(s)-in-interest.

• E. Findings. 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 development agreement.

F.

Procedure Upon Findings.

1. Has complied.

• a. If the Commission finds and determines the applicant/contracting party or its successor(s)-in-interest has complied in good faith with the terms and conditions of the development agreement during the period under review, the review for that period is concluded, and a notice of the determination shall be sent to the Council and the applicant/contracting party or its successor(s)-in-interest.

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• b. The Council shall review the Commission’s action.

• c. If the Council so desires, it can schedule a public hearing for further review.

2. Has not complied. If the Commission finds and determines the applicant/contracting party or its successor(s)-in-interest has not complied in good faith with the terms and conditions of the development agreement, the Commission shall forward its recommendation to the Council and the Council may hold a public hearing to modify or terminate the agreement, as provided by Government Code section 65865.1.

G. Modification or Termination of Development Agreement.

1. Proceedings upon modification or termination. If the City determines to proceed with modification or termination of the development agreement, the City shall give notice to applicant/ contracting party or its successor(s)-in-interest of its intention to do so. 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 or to modify the development agreement; and

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

2. Hearing on modification or termination of development agreement.

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

   • b. At the hearing, the Council may affirm, modify, or reject the determination of the Commission.

   • c. The Council may refer the matter back to the Commission for further proceedings or for report and recommendation.

   • 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 modification or termination shall be final.

• 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 agreement.

• B. Application of New Rules. In compliance with Government Code Section 65866, a development agreement shall not prevent the City in subsequent actions applicable to the property from applying new policies, regulations, and rules which do not conflict with those policies, regulations, and rules applicable to the property; nor shall a development agreement

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prevent the City from conditionally approving or denying any subsequent development project application on the basis of existing or new policies, regulations, and rules.

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

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