El Cerrito Municipal Code Ch. 19.41 Development Agreements

This Chapter establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects as provided for in State law. Such development agreements provide a greater degree of certainty by granting assurance that an applicant may proceed with development in accordance with policies, rules, and regulations in effect at the time of approval subject to conditions to promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved. A development agreement shall be a contract that is negotiated and voluntarily entered into by the City and applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.

(Ord. 2008-2 Div. II (part), 2008.)

An applicant for a development project may also apply for a development agreement in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864 through 65869.5 or any successor statute(s). In the event of any conflict between the applicable statutory provisions and this Chapter, the statutory provisions shall control.

A. Application. An applicant shall submit an application for a development agreement on a form prescribed by the Community Development Director. The Director shall identify submittal requirements for applications for development agreements and may require an applicant to submit such additional information and supporting data as considered necessary to process the application. The applicant shall pay such fees and charges for the filing and processing of development agreements; the administration of approved development agreements, including annual reviews; and the direct costs of adopting these procedures and requirements, in amounts as established by the Master Fee Schedule. An applicant shall have a legal or equitable interest in the real property that is the subject of the proposed development agreement.

B. Initial Review of Application. The Community Development Director shall review each application to determine whether it is complete. If the application is found to be incomplete, the Community Development Director shall reject the application and, within forty-five days after submittal of the application, shall inform the applicant of the items necessary to properly complete the application. If the application is complete, the Community Development Director shall determine whether an environmental review is required for the project in compliance with applicable State and local requirements.

(Ord. 2008-2 Div. II (part), 2008.)

A. Negotiations. The Community Development Director shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the Planning Commission and City Council.

B. Notice of Intent. The Community Development Director shall publish a notice of intent to consider adoption of a development agreement pursuant to Title 7, Division 1, Chapter 4, Article 2.5 of the California Government Code, as may be amended from time to time.

C. Planning Commission Public Hearing. The Planning Commission shall hold a noticed public hearing on the development agreement. Notice of the public hearing concerning a development agreement shall be provided in combination with any other notice required by law for land use approvals to be considered concurrently with the development agreement. Public Notice shall be provided per Section 19.32.050. The Planning Commission public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

D. Recommendation by Planning Commission. The Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission's determination and supporting reasoning whether or not the proposed development agreement:

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

2. Is compatible with the uses authorized in this Zoning Ordinance, and the zoning district in which the real property is located;

3. Will provide substantial public benefits;

4. Will be non-detrimental to the public health, safety and welfare of the Community; and

5. Has been reviewed in accordance with the provisions of the California Environmental Quality Act.

E. City Council Public Hearing. The City Council shall hold a noticed public hearing prior to adoption of any development agreement. Notice of the public hearing shall be given in accordance with the requirements of Section 19.32.050 of this Zoning Ordinance in combination with any other notice required by law for land use approvals to be considered concurrently with the development agreement. The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

F. Decision by City Council.

1. After the City Council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the Planning Commission; or in the event the Planning Commission has failed to make a recommendation pursuant to subsection (D) of this Section, the City Council shall approve, disapprove or conditionally approve the development agreement. The City Council 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.

2. The City Council shall not approve a development agreement unless it finds that its provisions are consistent with the general plan, any applicable specific plan, and zoning. This requirement may be satisfied by a finding that the provisions of the development agreement are consistent with proposed general plan, specific plan, or zoning provisions which are to be adopted concurrently with approval of the development agreement.

(Ord. 2008-2 Div. II (part), 2008.)

A. 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 to successors in interest.

B. A development agreement may include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.

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

D. A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project including any applicable environmental mitigation measures.

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

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

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

H. A development agreement may include provisions to guarantee performance of obligations stated in the agreement, such as a penalty clause.

(Ord. 2008-2 Div. II (part), 2008.)

A. Time For and Initiation of Review.

1. The Community Development Director shall review each approved development agreement in accordance with the documented review schedule at which time the applicant shall be required to demonstrate compliance with the provisions of the development agreement.

2. The applicant shall complete the required annual review not more than sixty days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the Community Development Director to demonstrate compliance with the provisions of the development agreement. The applicant shall bear the burden of proving by substantial evidence that it has complied with the provisions of the development agreement.

B. Finding of Non-compliance. If the Community Development Director finds the applicant has not complied with the provisions of the development agreement, the Director shall specify in writing 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. Alternatively, the Community Development Director may refer the development agreement to the City Council to determine 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 amendment pursuant to this Chapter.

C. Cancellation or Amendment by Mutual Consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in this Chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the Community Development Director.

D. Termination or Amendment After Finding of Noncompliance. If an applicant does not comply with the terms of compliance within the prescribed time limits, the Community Development Director may refer the development agreement to the City Council for termination or amendment at a public hearing. After the public hearing, the City Council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance.

E. Rights of the Parties After Cancellation or Termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the City 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 City.

(Ord. 2008-2 Div. II (part), 2008.)

A. City Rules Apply. Unless otherwise specified in the development agreement, the City's rules, regulations and official policies governing permitted uses of the property, density, design, improvement standards and specifications applicable to development of the property shall apply to the development agreement.

B. New Rules May Be Applied. 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. 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. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals.

C. Rules Affecting Development Agreement. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one 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 regulation or law.

D. Enforcement of a Development Agreement. The procedures for enforcement, amendment, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 or any successor statute, are non-exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.

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

F. Judicial Review—Time Limitation. Any judicial review of an Ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Codeof Civil Procedure or any successor statute; 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 by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure or any successor statute. 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 days after the effective date of the decision.

G. Notice Requirements. The failure of any person to receive notice required by law or this Chapter does not affect the authority of the City to enter into a development agreement.

H. Irregularity in Proceedings. No action, inaction, or recommendation regarding a 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 the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained 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 not a presumption that an error is prejudicial or that injury was done if an error is shown.

(Ord. 2008-2 Div. II (part), 2008.)