Chapter 17.129 — DEVELOPMENT AGREEMENTS

modified

Development agreements are contracts approved by the City Council, where the city and a developer expressly define a development project's rules, regulations, commitments, and policies for a specific period of time. The purpose is to strengthen the public planning process by encouraging private participation in the achievement of comprehensive planning goals and

reducing the economic costs of development. A development agreement reduces the risks associated with development, thereby enhancing the city's ability to obtain public benefits beyond those achievable through existing ordinances and regulations.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

There are no specific minimum requirements for a proposed project to include a development agreement. An applicant is able to request an application for a development agreement on any proposed development. A majority of the City Council may initiate a development agreement. However, a development agreement cannot be sanctioned on a developer.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Applications. An application for a development agreement may be made to the Community Development Director in accordance with the procedures set forth herein:

1.

Applications may be made by any qualified applicant. In addition, applications may be initiated by a majority of the City Council by resolution. If an application is made for a development agreement by the City Council, the city shall obtain and attach a notarized statement of consent to proceed with the proposed agreement executed by the owner of the subject property. Refer to Section 17.10.080 (General Regulations—Projects with Multiple Applications or Actions) of this title if more than one permit or action is necessary for the project.

2.

The Community Development Director shall determine the minimum filing procedures, content and form of materials which must be submitted before the Planning Commission and City Council can review and take action on the request. The filing procedures and applications shall be published and made available to the public.

3.

For applications made by a qualified applicant, no petition shall be received unless it complies with all filing requirements.

B.

Records. Applications filed pursuant to this chapter shall be numbered consecutively in the order of their filing and shall be part of the permanent official records of the Planning Commission and City Council.

C.

Investigation. For applications made by a qualified applicant, the applicant shall bear the burden of providing sufficient documents and exhibits that allow the Planning Commission and City Council to render a decision upon the application under consideration. The Planning Commission and City Council may request additional information before rendering a decision. Further, it is the responsibility of the applicant to certify the information contained therein. The filing of an application also grants the Planning Division the right to enter the property to make any inspections necessary to render a decision on the application. Prior to an inspection, the applicant shall be given notice a minimum of forty-eight (48) hours in advance.

D.

Qualifications of the Applicant. A qualified applicant includes an authorized agent of a qualified applicant. The Community Development Director may require an applicant to submit proof of his/her interest in the real property and of the authority of the agent to act for the qualified applicant. Such proof may include a title report, policy or guarantees issued by a title insurance company licensed to do business in the state of California evidencing the requisite interest of the applicant in the real property.

munity Development Director may require an applicant to submit proof of his/her interest in the real property and of the authority of the agent to act for the qualified applicant. Such proof may include a title report, policy or guarantees issued by a title insurance company licensed to do business in the state of California evidencing the requisite interest of the applicant in the real property.

If the application is made by the holder of an equitable interest, the application shall be accompanied by a title guarantee issued by a title insurance company report and by a notarized statement of consent to proceed with the proposed development agreement executed by the holder of the legal interest. Before processing the application, the Community Development Director shall obtain the opinion of the City Attorney as to the sufficiency of the qualified applicant's interest in the real property to enter into the development agreement as a qualified applicant hereunder.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

The submitted application shall include, at minimum, the following items in order to proceed forward through the public hearing process:

A.

The parties to the development agreement;

B.

The nature of the qualified applicant's legal or equitable interest in the real property constituting such person as a qualified applicant hereunder;

C.

A description of the development project sufficient to permit the development agreement to be reviewed under the applicable criteria of this chapter. Such description may include, but is not limited to, references to site and building plans, elevations sufficient to determine heights and areas, relationships to adjacent properties and operational data. Where appropriate, such description may distinguish between elements of the development project which are proposed to be fixed under the development agreement, those which may vary and the standards and criteria pursuant to which the same may be reviewed;

D.

An identification of the approvals and permits for the development project enacted to the date of or contemplated by the development agreement;

E.

The proposed duration of the development agreement;

F.

The proposed site improvements, building improvements and design standards;

G.

The proposed phasing of the construction, and any public improvements to be required;

H.

A program and criteria for regular periodic review under this chapter;

I.

Proposed provisions providing security for the performance of the qualified applicant under the development agreement; and

J.

Any other relevant provisions which may be deemed necessary by the Community Development Director under this chapter.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

A development agreement shall specify its duration, the permitted uses of the property thereunder, the density and/or intensity of use, the maximum height and size of proposed buildings and improvements, and provisions for reservation or dedication of land for public purposes.

B.

A development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions; provided, that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the property for the uses and to the density or intensity, height, and size of development set forth in the development agreement and phasing if and to the extent the development agreement so provides. Without limitation as to types of conditions, terms, and restrictions, the development agreement may provide for the phasing of construction of development projects and any improvements with respect thereto, and the development agreement may also provide that the construction shall be commenced and completed within specified times and that the development project, public improvements, or any phase thereof be commenced and completed within specified times.

C.

A development agreement shall include all conditions imposed by the city, and may also include conditions imposed by other agencies, and all obligations agreed to by the city and other parties to the development agreement with respect to the development project thereunder including those conditions authorized by law and/or required pursuant to the California Environmental Quality Act, or the National Environmental Protection Act, and the city's regulations with respect thereto in order to

eliminate or mitigate environmental and traffic impacts caused by or aggravated as a result of the development project proposed under the development agreement.

D.

A development agreement shall contain an indemnity and insurance clause in form and substance acceptable to the City Attorney, requiring the qualified applicant to protect, defend, indemnify and hold harmless the city against claims arising out of the development process; provided, that such a provision does not violate applicable law or constitute a joint venture, partnership or other participation in the business affairs of qualified applicant by the city.

E.

A development agreement shall include appropriate provisions acceptable to the City Attorney providing security for the performance under the development agreement.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

Public notices shall be provided and processed in a manner consistent with the provisions of Section 65090 and/or 65091 of the California Government Code as required, and shall be given by the methods specified as follows:

A.

Publish a notice once in a newspaper of general circulation in the city a minimum ten (10) days prior to each public hearing. The notice shall include the date, time, place of hearing and location of the property and the nature of the request.

B.

Mail a notice, postage prepaid, to the applicant and to owners of all properties within a specified radius:

1.

The notice shall be mailed a minimum ten (10) days prior to each public hearing. The applicant shall use the last known name and address of such owners as shown upon the last assessment roll of the city.

2.

The mailing radius shall be five hundred (500) feet of the exterior boundaries of the subject property. The Community Development Director may direct the applicant to increase the mailing radius, but in no event shall it be greater than seven hundred (700) feet.

C.

Post the Property. A minimum of one notice shall be posted along each street frontage. The posting shall be placed in the ground or on a fence, wall or building façade that is set back no more than ten (10) feet from the street property line.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

The Planning Commission may recommend adoption of a development agreement as a method of implementing or providing standards and criteria for any approval of the Planning Commission or permits or approvals issued or made by any other agency, including, but not limited to:

1.

Rezoning and/or conditions imposed upon approval of rezoning;

2.

Issuance of a conditional use permit;

3.

Conditions imposed upon approval of a permit after discretionary review;

4.

Conditions imposed in connection with the adoption of any general plan amendment or specific plan;

5.

Site-specific conditions imposed in any other district;

6.

Approval of and/or conditions imposed upon approval of a subdivision map;

7.

The separate review and approval by the City Attorney of conditions, covenants and restrictions (CC&Rs) affecting the subject property where the development project affects, or is proposed to affect, more than one legal parcel, which CC&Rs shall include enforcement provisions acceptable to the city including without limitation the grant of power to the city by the applicant to enforce the property maintenance standards set forth in such CC&Rs as if the city was a property owner party to such CC&Rs. Such CC&Rs shall be recorded against the lands included in the development project prior to issuance by the city of any certificate of occupancy;

8.

The formation of any assessment district, benefit district, maintenance district or special benefit district or any other procedure, for the installation of required or necessary on-site or off-site improvements or infrastructure; and/or

9.

Mitigation measures imposed upon a development project pursuant to the California Environmental Quality Act (CEQA).

B.

The Planning Commission shall make a recommendation in writing to the City Council as follows:

1.

That the development agreement be adopted as proposed;

2.

That the development agreement be adopted with revisions, as proposed by the Planning Commission; or

3.

That the development agreement be denied.

C.

Any action taken by the Planning Commission shall occur at a noticed public hearing as outlined in Section 17.129.060 of this chapter.

D.

The Planning Commission shall make all recommendations by resolution.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

A development agreement is a legislative act and it shall be enacted or amended by ordinance. The ordinance shall be subject to a referendum and shall incorporate by reference the text of the development agreement.

B.

The development agreement shall not be binding or enforceable prior to the effective date of the ordinance approving the development agreement and execution of the development agreement by all parties thereto.

C.

Because a development agreement is also a contract which requires the consent of each party in order to become binding, the City Council reserves the right to disapprove entering into any development agreement, regardless of the provisions hereof, and the ordinance shall be advisory only and shall not require the acceptance of any development agreement.

D.

The City Council may do any of the following:

1.

Refer the issue back to the Planning Commission for further hearing and recommendation whereupon Planning Commission shall reconsider the referral from the City Council within thirty (30) days thereafter;

2.

Act on all or any such issue without reference back to the Planning Commission;

3.

Approve the development agreement as recommended by the Planning Commission;

Approve the development agreement with revisions; or

5.

Reject the development agreement, in whole or in part.

E.

Any action taken by the City Council shall occur at a noticed public hearing as outlined in Section 17.129.060 of this chapter.

F.

The City Clerk shall record a fully executed copy of the development agreement and ordinance within ten (10) days of the effective date of the ordinance. The development agreement shall be binding upon, and the benefits of the development agreement shall inure to the parties and all successors in interest to the parties to the development agreement.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

Before a development agreement may be granted, the Planning Commission (on recommendation) and City Council shall make all of the following findings:

A.

The development agreement will not be detrimental to the public health, safety or welfare or injurious to the city;

B.

The development agreement will have a positive effect on the orderly development of property or the preservation of neighboring property values;

C.

The development agreement will provide sufficient benefits to the community to justify entering into the agreement; and

D.

The development agreement is consistent with the purpose, goals and policies of the city's general plan, and any applicable specific plan.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Community Development Director Periodic Review.

1.

The city shall review the performance of the developer under a development agreement periodically on a regular basis as determined in the development agreement or at least once every twelve (12) months for the term of the development agreement.

2.

The anniversary of the effective date of the development agreement shall be ninety (90) days prior to the "established date or dates for regular periodic review," or such other substitute date or dates, mutually agreed to by the developer and city in writing. The developer shall submit evidence to the Community Development Director showing good faith compliance with the development agreement.

3.

If the Community Development Director determines that such evidence is insufficient for the regular periodic review, or if the developer fails to submit any evidence, the Community Development Director shall deliver or mail written notice to the developer prior to seventy-five (75) days of the established date or dates of the regular periodic review. The notice shall state the developer's failure to submit any evidence or additional information reasonably required to review whether the developer has shown good faith compliance with the development agreement.

4.

The developer shall have thirty (30) days after the mailing or delivery of such written notice by the Community Development Director in which to respond. If the developer fails to provide such information to the Community Development Director within the thirty-day period, the Community Development Director shall find that the developer has not complied in good faith with the terms of the development agreement.

B.

Community Development Director Special Review.

1.

Reviews which are not periodic reviews are defined as special reviews and may occur either by agreement between the developer and city or by initiation of the city by the affirmative vote of the City Council, but in any event shall not be held more frequently than three (3) times a year.

2.

The Community Development Director shall deliver or mail to the developer a thirty-day notice of intent for the city to undertake a special review to determine if the developer has complied in good faith with the terms of the development agreement. The developer shall provide the city with any evidence supporting good faith compliance with the terms of the development agreement.

3.

If the Community Development Director determines that such evidence is insufficient for the special review, or if the developer fails to submit any evidence within the thirty-day period, the Community Development Director shall deliver or mail written notice to the developer within forty-five (45) days of the delivery or mailing date of the notice of intent. The notice shall outline the developer's failure to submit any evidence or additional information reasonably needed in order to review the developer's good faith compliance with the terms of the development agreement.

The developer shall have thirty (30) days after mailing or delivery of such written notice by the Community Development Director in which to respond. If the developer fails to provide such information to the Community Development Director within the thirtyday period, the Community Development Director shall find that the developer has not complied in good faith with the terms of the development agreement.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Finding of Good Faith Compliance. If the Community Development Director finds good faith compliance by the developer with the terms of the development agreement for the period or special review, the Community Development Director, upon request of developer, shall issue a certificate of compliance for such period reviewed. The certificate of compliance shall be in a recordable form and may be recorded by the developer in the official records of Los Angeles County. The issuance of a certificate of compliance by the Community Development Director shall conclude the review for the applicable period for which the finding was made and such determination shall be final in the absence of fraud.

B.

Failure to Find Good Faith Compliance.

1.

If the Community Development Director does not find, on the basis of substantial evidence, that the developer has complied in good faith with the terms of the development agreement, he or she shall so notify the City Council and the developer. The Community Development Director shall specify the reasons for the determination, the information relied upon in making such decision and any findings made with respect thereto.

2.

The Community Development Director's findings shall be presented to the City Council. The City Council may do any of the following:

a.

Compliance. Determine on the basis of evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, in which event the Community Development Director, upon request of the developer, shall issue a certificate of compliance in accordance with Section 17.129.110 of this chapter.

b.

Failure to Find Good Faith Compliance. If the City Council is unable to determine on the basis of the evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, the City Council shall do one or both of the following:

i.

Additional Time. Upon receipt of sufficient justification to City Council, grant the developer additional time in which to establish good faith compliance with the terms of the development agreement at a subsequent duly called council meeting; or

ii.

Hearing. Set a date for a public hearing on the issue of compliance by the developer with the terms of the development agreement and the possible conditioning and/or termination or revision of the development agreement. The public hearing shall follow the procedures outlined in Section 17.129.060 of this chapter.

c.

Necessary City Council Finding. Based upon substantial evidence, the developer has or has not complied in good faith with the terms and conditions of the development agreement.

3.

City Council Public Hearing to Determine Good Faith Compliance:

a.

Compliance. If the City Council finds good faith compliance by the developer with the terms of the development agreement, the Community Development Director upon request of the developer and subject to the written concerns of the City Attorney shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the developer in the official records of the Los Angeles County.

b.

Noncompliance. If the City Council does not find good faith compliance by the developer with the terms of the development agreement, it may do any of the following:

i.

Determine, on the basis of substantial evidence, that the developer has not complied in good faith with the terms and conditions of the development agreement during the period under review, the City Council may allow the development agreement to be continued by imposing new terms and conditions intended to remedy such noncompliance or to be otherwise modified.

ii.

Mutually with the developer, or unilaterally, terminate the development agreement or take the action authorized by California Government Code Section 65865.1.

iii.

Impose such terms and conditions to the development agreement as it considers necessary to protect the interests of the city.

iv.

The decision of the City Council shall be final. The rights of the parties after termination shall be as set forth in Section 17.129.120 of this chapter.

c.

Necessary City Council Finding. Based upon substantial evidence, the developer has or has not complied in good faith with the terms and conditions of the development agreement.

C.

Ordinance. Any termination, revision or imposition of new terms and conditions pursuant to this section shall be by ordinance. The ordinance shall recite the facts, findings, information relied on and/or the lack thereof, and the reasons which, in the opinion of the City Council, make the termination, revision or imposition of new terms and conditions of the development agreement necessary. The enactment of such an ordinance by the City Council shall be final and conclusive as to its effect on the subject development agreement. Not later than ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded

to the developer. The development agreement shall be terminated, or the amendments to the development agreement shall become effective, on the effective date of the ordinance or as otherwise provided in such ordinance.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A development agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to the development agreement or their successors in interest. Any such person may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into.

A.

The procedure for amendment or cancellation in whole or in part of a development agreement by mutual consent shall be as follows:

1.

A request for an amendment to or cancellation in whole or in part of the development agreement shall be submitted to the Community Development Director. A public hearing before the City Council shall be held within ninety (90) days of receipt of the request. The public hearing. The public hearing shall follow the procedures outlined in Section 17.129.060 of this chapter.

2.

Any amendment, cancellation or imposition of new terms and conditions pursuant to this section shall be by ordinance. The ordinance shall recite the facts, findings, information relied on, and reasons which, in the opinion of the City Council, make the amendments or cancellation of the development agreement necessary. Not later than ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded to the developer. The amendment to or cancellation of a development agreement shall become effective on the effective date of such ordinance unless otherwise indicated therein.

3.

Although approved by the City Council, an amendment to or cancellation of a development agreement shall not be binding or enforceable prior to the effective date of the ordinance approving the amendment or cancellation of the development agreement and the execution of such amendment or a written consent to such cancellation by all parties to the development agreement or by their successors in interest.

B.

Rights of the Parties after Cancellation or Termination.

1.

In the event that a development agreement is canceled, or otherwise terminated, unless otherwise agreed to in writing by city, all rights of the developer, property owner or successors in interest under the development agreement shall terminate and any and all benefits, including money or land, received by the city shall be retained by the city.

2.

Notwithstanding subsection B.1 above, any termination of the development agreement shall not prevent the developer from completing a building or other improvements authorized to be constructed pursuant to a valid operative building permit previously

approved by the city and under construction at the time of termination.

3.

The city may take any action permitted by law to prevent, stop, or correct any violation of law occurring during and after construction, and neither the developer nor any tenant shall occupy any portion of the project or any building not authorized by an occupancy permit.

4.

As used herein: (a) "construction" shall mean work on site under a valid building permit; (b) "completing" shall mean completion of construction for beneficial occupancy for developer's use, or if a portion of the project is intended for use by a lessee or tenant; and (c) "completion" shall mean completion of construction except for interior improvements such as partitions, duct and electrical run outs, floor coverings, wall coverings, lighting, furniture, trade fixtures, finished ceilings, and other improvements typically constructed by or for tenants of similar buildings. All such uses shall, to the extent applicable, be deemed nonconforming uses and shall be subject to the nonconforming use provisions of the El Monte Municipal Code (EMMC).

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

Formal rules of evidence or procedure which must be followed in a court of law shall not be applied in the consideration of a proposed development agreement, its revision, cancellation, or termination. Rather, the provisions of this chapter shall apply. The qualified applicant or developer has the burden of presenting substantial evidence at each of the public hearings on the proposal and shall be given an opportunity to present evidence in support of the qualified applicant's or developer's position.

No action, inaction, or recommendation regarding the proposed development agreement, its revision, cancellation, or termination shall be held void or invalid or be set aside by a court on the ground of the improper admission or rejection of evidence or 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 matters of procedure whatever unless after an examination of the entire case, including the evidence, the court finds 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 resulted if error is shown.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

All development agreements shall be subject to the regulations and requirements of federal and state law, any codes, statutes or executive mandates and any federal or state court decision. In the event that any such law, code, statute, or decision made or enacted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of

the development agreement then such provisions of the development agreement shall be modified or suspended as may be necessary to comply with such law, code, statute, mandate or decision, and every such development agreement shall so provide.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

Editor's note— Ord. No. 3023, § 4.B(Exh. B), adopted May 2, 2023, amended § 17.129.140 and in doing so changed the title of said section from "Subsequently adopted state and federal laws" to "Subsequently adopted federal and state laws," as set out herein.

modified

A.

Unless otherwise provided by the development agreement, or imposed for reasons of health or safety during the term of the development agreement, rules, regulations and official policies of the city governing permitted uses of the land, governing density and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement.

B.

A development agreement shall not prevent the city, in subsequent actions applicable to the property or to the city in general, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property at the time of execution of the development agreement, nor shall a development agreement prevent the city from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.

C.

Each development agreement shall provide, and it is provided in this section, that this section and the provisions thereof do not apply to taxes, imposts, assessments, fees, charges or other exactions imposed by or payable to city unless specifically and to the extent otherwise expressly agreed to by city in the development agreement, and that all of such shall be in amounts fixed at the time they are payable.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Except as provided in subsection B below, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general plan, zoning code, specific plan, subdivision map, or building regulation adopted by the city

which alters or amends the rules, regulations, or policies specified in Section 17.129.150 of this chapter or in the development agreement itself.

B.

An exception to the certainty intended by execution of a Development Agreement as expressed in Sections 17.129.010 and 17.129.020 of this chapter, shall be when a change to the Development Agreement is imposed or required not by a city initiated action, but rather by city response to (i) federal or state court or administrative agency determination or (ii) federal or state legislative or administrative agency regulation requirement.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

Should any provision of this chapter or of 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. The City Council hereby declares that it would have adopted and enacted this chapter and each provision thereof irrespective of the fact that any one or more of the provisions, or the applications thereof to any person or place, be declared invalid or unconstitutional. For the purpose of this section, a "provision" is a section, subsection, paragraph, sentence, clause, phrase or portion of any thereof.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

All and every part of a development agreement is subject to condemnation proceedings and entering into such agreement is not intended to restrict the exercise of eminent domain by the city or any other public agency.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)

modified

A.

Any judicial review of the initial approval by the city of a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure; and judicial review of any city action taken pursuant to this chapter, other than the initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.

B.

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 a City Council decision.

(Ord. No. 3053, § 3(Exh. A), 5-14-2025)