Fresno Municipal Code Art. 60 Development Agreements

This article establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects. Such agreements provide a greater degree of certainty than the normal permit approval process by granting assurance that an applicant may proceed with development in accord with policies, rules, and regulations in effect at the time of approval or as modified by the terms of the Development Agreement subject to conditions to promote the community's needs and provide greater community benefits than otherwise can be achieved through the normal land use regulatory process.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

A. A Development Agreement may be considered for:

1. Large multi-phase development projects that will require a developer to make a substantial investment at the early stages of the project, for planning and engineering for the entire project, and for public facilities and services.

2. Development standards may be modified through a Development Agreement provided the project is consistent with the General Plan and applicable operative plans.

3. Development Agreements shall be not used in lieu of a Variance or to permit a use that would otherwise not be permitted by the underlying District.

B. Property Subject to Annexation. An applicant whose property is located within the City's Sphere of Influence, or whose property is the subject of a pending application for inclusion into the sphere of influence, may file an application to enter into a Development Agreement.

1. The agreement shall not become operative unless proceedings annexing the property to the city are completed within the period of time specified by the agreement.

2. If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement shall be null and void.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

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

B. The Planning Commission shall make a recommendation to the City Council and the City Council shall have the exclusive authority to approve and modify a Development Agreement.

(Added Ord. 2015-39, § 1, eff. 1-9-16; Am. Ord. 2018-25, § 33, eff. 6-11-18).

An applicant for a development project may request that the City review the application as a Development Agreement application in accordance with the following procedures:

A. Application Requirements. An applicant shall submit an application for a Development Agreement. 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. In addition to any other information that the Director requires, each application for a Development Agreement shall be accompanied by the general terms and conditions of the agreement proposed by the applicant and shall include the contents required in Subsection B below.

B. Contents of Development Agreements.

1. Required Contents. A Development Agreement shall specify its duration; the permitted uses of the subject property; the 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.

2. Improvements and Fees. 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.

3. Subsequent Actions. 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.

4. Conditions. A Development Agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project, including restrictions and mitigation measures proposed in any environmental document prepared for the project.

5. 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.

6. Financing. If the Development Agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

7. Indemnity. 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 the actions of the applicant in connection with the application or the development process, including all legal fees and costs.

8. Performance Obligation Fees. A Development Agreement may include provisions to guarantee performance of obligations stated in the agreement.

9. Public Benefits. The Development Agreement shall articulate public benefits.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

A. Notice of Intent. The Director shall publish a notice of intent to consider adoption of a Development Agreement as provided in the Government Code (Sections 65090 and 65091).

B. Planning Commission. The Planning Commission shall hold a duly noticed public hearing prior to adoption of any Development Agreement and shall make a recommendation to the City Council to either approve, approve with modifications, or deny the Development Agreement. Notice of the public hearing shall be given in accordance with the requirements of Section 15-5007, Public Notice.

C. City Council. The City Council shall hold a duly noticed public hearing prior to adoption of any Development Agreement and shall either approve, approve with modifications, or deny the Development Agreement. Notice of the public hearing shall be given in accordance with the requirements of Section 15-5007, Public Notice. The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on the project.

(Added Ord. 2015-39, § 1, eff. 1-9-16; Am. Ord. 2018-25, § 34, eff. 6-11-18).

A. Required Findings. The City Council shall not approve a proposed Development Agreement unless it finds the following:

1. That its provisions are consistent with the General Plan, the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5, and any applicable operative plan. This requirement may be satisfied by a finding that the provisions of a proposed Development Agreement are consistent with proposed General Plan or applicable operative plan provisions to be adopted concurrently with the approval of the proposed Development Agreement; and

2. The proposed Development Agreement will provide substantial public benefit.

B. Decision. After the City Council completes the public hearing, the City Council shall approve, modify, or disapprove the Development Agreement pursuant to adopted Council procedures.

C. Approval. A Development Agreement shall be approved by ordinance.

(Added Ord. 2015-39, § 1, eff. 1-9-16; Am. Ord. 2019-030, § 7, eff. 10-31-19).

Within 10 days after an ordinance approving the Development Agreement takes effect, the Director shall execute the Development Agreement on behalf of the City, and the City Clerk shall record the Development Agreement with the County Recorder.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

The applicant shall be required to demonstrate compliance with the provisions of the Development Agreement, including the provision of community benefits, at least once a year 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 annual 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 City 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 the applicant does not comply with any terms of compliance within the prescribed time limits, the Development Agreement shall be subject to termination or modification pursuant to Section 15-6009, Amendment or Cancellation.

C. Appeal of Determination. Within seven days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. 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 City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

A. After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if an applicant does not comply with the terms of compliance within the prescribed time limits, the Director may refer the Development Agreement to the City Council for termination or modification. The City Council shall conduct a noticed 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 and issue a finding of compliance.

B. Mutual Agreement. Any development may be canceled or amended by mutual consent of the parties following compliance with the procedures specified in this section. A Development Agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and Director. Amendments or cancellation of the agreements shall be the responsibility of the Council. The Council hearing shall be noticed.

C. Recordation. If the parties to the agreement or their successors in interest amend or cancel the Development Agreement, or if the City terminates or modifies the Development Agreement for failure of the applicant to fully comply with the provisions of the Development Agreement, the City 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 be terminated. 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.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

A. Existing Rules and Regulations. Unless otherwise specified in the Development Agreement, the City's rules, regulations, and official policies governing permitted uses of the property, density, design, and improvement standards and specifications applicable to development of the property shall be those City rules, regulations, and official policies in force on the effective date of the Development Agreement, except as modified by the terms of the Development Agreement. The applicant shall not be exempt from otherwise applicable City codes or regulations pertaining to persons contracting with the City.

B. Future Rules and Regulations. A Development Agreement shall not prevent the City, in subsequent actions applicable to the property, from applying new rules, regulations and policies that do not conflict with those 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. State and Federal Rules and Regulations. 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.

(Added Ord. 2015-39, § 1, eff. 1-9-16).

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

(Added Ord. 2015-39, § 1, eff. 1-9-16).