Chapter 4-56 — DEVELOPMENT AGREEMENTS

Sections:

• Sec. 4-56-010. Purpose. Sec. 4-56-020. Applicability.

• Sec. 4-56-030. Review Authority.

• Sec. 4-56-040. Application Filing, Processing, and Review.

• Sec. 4-56-050. Execution and Recordation.

• Sec. 4-56-060. Environmental Review.

• Sec. 4-56-070. Periodic Review.

• Sec. 4-56-080. Amendment or Cancellation of Development Agreement. Sec. 4-56-090. Effect of Development Agreement.

• A. Procedures. This Chapter provides procedures and requirements for the review, approval, and amendment of development agreements.

• B. State law. The provisions of this Chapter are consistent with the provisions of State law governing development agreements (Article 2.5 of Section 4 of Division 1 of Title 7, commencing with Government Code Section 65864).

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-040. Application Filing, Processing, and Review.

• A. Initiation. Consideration of a development agreement may be initiated by:

  1. Property owners or other persons having a legal or equitable interest in the property proposed to be subject to the agreement or an authorized agent of the owner(s); or

  2. A resolution of intention by the Council.

• B. Fully effectuate. In construing the provisions of any development agreement executed in compliance with this Chapter, those provisions shall be read to fully effectuate, and to be consistent with, the language of this Article, State law (Article 2.5 of the Government Code, cited above), and the agreement itself.

• C. Discrepancies. If an apparent discrepancy between the meaning of these documents arises, reference shall be made to the following documents, and in the following order:

  1. The terms of the development agreement itself;

  2. The provisions of this Chapter; and

  3. The provisions of State law (Article 2.5 of the Government Code, cited above).

An application for a development agreement shall be considered by the Commission and decided by the Council in compliance with Section 4-56-040.G (Notice and public hearings), below.

• A. Application requirements. An owner of real property may request and apply through the Director to enter into a development agreement; provided, the following:

  1. The development agreement, if approved, would be in the best interests of the City;

  2. The status of the applicant as the owner of the subject property is established to the satisfaction of the Director.

  - **a.** Only a qualified applicant or authorized agent may file an application in compliance with this Chapter. 
  
  - **b.** A qualified applicant is a person who has legal or equitable interest in the real property which is the subject of the development agreement. 
  
  - **c.** The Director may require an applicant to submit proof of the applicant's interest in the real property and/or of the authority of the agent to act for the applicant. 
  
  - **d.** The Director may 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. 
  
  - **e.** The Director or City Attorney may require the submittal of a title report or other evidence to verify the applicant's legal or equitable interests in the subject property. 
  

  3. The application is made on forms approved by the Director and shall be accompanied by the information and materials identified in the Department handout for development agreement applications;

  4. The application is accompanied by the applicable fees, in compliance with Subsection C., (Processing and review fees) below; and

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-040. Application Filing, Processing, and Review.

5. The applicant shall be responsible for providing the evidence in support of the findings required by Subsection G.8. (Findings) below.

B. Director's action.

1. The Director shall review the application and determine its completeness.

2. Upon determining the application complete, the Director shall forward a copy of an agreement form proposed by an applicant to the City Attorney for review.

3. The Director, in conjunction with the City Attorney, shall prepare a staff report and recommendation to the Commission.

C. Processing and review fees.

1. Processing fees. Processing fees, as established by the City's Fee Schedule, shall be collected for any application for a development agreement made in compliance with this Chapter.

2. Periodic reviews. Appropriate fees shall be established and collected for periodic reviews conducted by the Commission or review authority in compliance with Section 4-56-070 (Periodic Review), below.

• D. Withdrawal of application. An applicant may withdraw an application filed in compliance with this Chapter. Any fee(s) required for processing the application shall not be refunded.

E. Form of agreement.

1. Standard form. The Director may propose a form of development agreement which may be adopted by resolution of the Council as a standard form for development agreements.

2. Applicant's form. An applicant may submit a proposed form of agreement.

3. Form of development agreement. Each application shall be accompanied by the form of development agreement proposed by the applicant. This requirement may be met by designating the standard form of development agreement identified in Subparagraph 1., above and including specific proposals for changes in or additions to the language of the standard form.

F. Content of development agreement.

1. Mandatory provisions. A development agreement entered into in compliance with this Chapter shall contain the mandatory provisions specified by State law (Government Code Section 65865.2 [Agreement contents]).

2. Permissive provisions. A development agreement entered into in compliance with this Chapter may contain the permissive provisions specified by State law (Government Code Section 65865.2 [Agreement contents]).

G. Notice and public hearings.

1. Notice. Notice of the hearings, identified in Subparagraphs 3. and 4., below, shall be given in the form of a notice of intention to consider approval of a development agreement in compliance with State law (Government Code Sections 65854, 65856, and 65867), Chapter 4-78 (Public Hearings), and any other notice required by law for other actions to be considered concurrently with the development agreement.

2. Planning agency. The Commission shall serve as the planning agency on development agreement applications in compliance with State law (Government Code Section 65867).

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-050. Execution and Recordation.

3. Commission's action. The Director, upon finding the application for a development agreement complete, shall set the application, together with recommendations, for a public hearing before the Commission. Following conclusion of the public hearing, the Commission shall forward a written recommendation to the Council that it approve, conditionally approve, or disapprove the application. The Commission's recommendation shall be supported by the findings identified in Subparagraph 8, below.

4. Council's action. Upon receipt of the Commission's recommendation, the City Clerk shall set the application and written recommendation of the Commission for a public hearing before the Council. Following conclusion of the public hearing, the Council shall approve, conditionally approve, or disapprove the application in compliance with findings identified in Subparagraph 8, below. Matters not previously considered by the Commission during its hearing may be referred back to the Commission for report and recommendation. The Commission need not hold a public hearing when considering the Council's referral.

ion of the public hearing, the Council shall approve, conditionally approve, or disapprove the application in compliance with findings identified in Subparagraph 8, below. Matters not previously considered by the Commission during its hearing may be referred back to the Commission for report and recommendation. The Commission need not hold a public hearing when considering the Council's referral.

5. Variances or exceptions. Nothing in a development agreement shall act as the grant of a Variance or exception to any requirement of this Zoning and Subdivision Code, or limit the discretion of any review authority in approving or disapproving a Variance or exception.

6. Ordinance. Approval of a development agreement shall be by ordinance. The ordinance shall be in compliance with State law (Government Code Section 65867.5) and shall contain the findings identified in Subparagraph 8, below, and the facts supporting them.

7. Evidence. The applicant shall be responsible for providing the evidence in support of the findings.

8. Findings. The development agreement shall be approved only if the following findings of fact can be made in a positive manner. The development agreement: a. Would be in the best interests of the City;

• b. Is in conformance with the goals, policies, and objectives of the General Plan and the purpose and intent of any applicable specific plan, and this Zoning and Subdivision Code;

• c. Would not be detrimental to the health, safety, and general welfare of persons residing in the immediate area, nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City; and

• d. Is consistent with the provisions of State law (Government Code Sections 65864 through 65869.5.)

9. Irregularity in proceedings. No action, inaction, or recommendation regarding a proposed development agreement shall be void, invalid, or set aside by a court by reason of any error or irregularity in compliance with State law (Government Code Section 65801.)

10. Referendum. The ordinance may be subjected to referendum in compliance with State law (Government Code Section 65867.5).

• A. Effective date. The City shall not execute a development agreement until on or after the date on which the ordinance approving the agreement, enacted in compliance with Subsection G.6., above, becomes effective.

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-050. Execution and Recordation.

• B. Mutual consent. A development agreement may be executed only on the mutual written consent of each party to the agreement.

• C. Conditioning approval. The provisions of this Chapter shall not be construed to prohibit the Director, Commission, or Council from conditioning approval of a discretionary permit or entitlement on the execution of a development agreement where the condition is otherwise authorized by law.

• D. Recordation. Within 10 days after the effective date of a development agreement, or any modification or cancellation thereof, the City Clerk shall have the agreement, the modification, or cancellation notice recorded with the County Recorder.

The approval or conditional approval of a development agreement in compliance with this Chapter shall be deemed a discretionary act for purposes of the California Environmental Quality Act (CEQA) and the City's CEQA guidelines.

• A. Periodic review required.

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

  2. The development agreement shall be reviewed by the City, at least every 12 months, from the date the agreement is entered into.

  3. The review authority to conduct the periodic review may be designated in the agreement. If no review authority is designated, the review shall be conducted by the Commission.

  4. Appropriate fees to cover the City's cost(s) to conduct the periodic reviews shall be collected from the applicant/contracting party in compliance with Subsection 4-56040.C., (Processing and review fees), above.

• B. The review hearing.

  1. The review authority shall conduct a public review hearing.

  2. The purpose of the review shall be to determine whether the applicant/contracting party or the successor(s)-in-interest has complied in good faith with the terms and conditions of the development agreement.

  3. The burden of proof shall be on the applicant/contracting party or the successor(s)in-interest to demonstrate compliance, to the full satisfaction of, and in a manner prescribed by, the review authority.

C. Compliance assessment.

1. If the review authority finds, on the basis of substantial evidence, that the applicant/ contracting party or the successor(s)-in-interest has complied in good faith with the terms or conditions of the agreement during the period under review, no further action is required.

2. However, if the review authority finds, on the basis of substantial evidence, that the applicant/contracting party or the successor(s)-in-interest has not complied in good

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-080. Amendment or Cancellation of Development Agreement.

faith with the terms or conditions of the agreement during the period under review, the review authority may recommend to the Council that it order the agreement to be terminated or modified.

• D. Notice of hearing to terminate or modify. If the City determines to proceed with termination or modification of the agreement, the City shall give notice to the property owner of its intention to do so. The notice shall contain the following:

  1. The date, time, and place of the hearing;

  2. A statement as to whether or not the City proposes to terminate or modify the development agreement; and

  3. Other information which the City considers relevant to the nature of the proceeding.

• E. Council's hearing on termination or modification.

  1. At the public hearing on termination or modification of the agreement, the applicant/ contracting party or the successor(s)-in-interest shall be given an opportunity to be heard. The Council may refer the matter back to the review authority for further proceedings or for a report and recommendation before making a final decision.

2. At the conclusion of the hearing, or upon receipt of the report and recommendation of the review authority, the Council shall take final action on the termination or modification. As part of that final decision, the Council may impose conditions.

3. The decision of the Council shall be final.

• A. Amendments or cancellations.

  1. Either party may propose an amendment to, or cancellation in whole or in part of, any development agreement.

  2. A development agreement may only be amended or canceled, in whole or in part, by mutual agreement of all parties to the agreement, or their successor(s)-in-interest.

B. Processing procedures.

1. The requested amendment or cancellation shall be processed in the same manner identified by this Chapter for the adoption of a development agreement.

2. If the City initiates a proposed amendment to, or a cancellation in whole or in part of, the agreement, the City shall first give written notice to the party executing the agreement of its intention to initiate the proceedings not less than 30 days in advance of the giving of public notice of the hearing to consider the amendment or cancellation.

3. Any amendment to the development agreement which does not relate to the duration of the agreement, allowed uses of the property, density or intensity of use, height or size of proposed structures, provisions for reservation or dedication of land, or to any conditions, terms, restrictions, and requirements relating to subsequent discretionary actions related to design, specifications, improvement, and construction, or any other condition or covenant relating to the use of the property, shall not require a noticed public hearing before the parties execute an amendment to the agreement.

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ARTICLE 5 PLANNING PERMIT PROCEDURES CHAPTER 4-56. DEVELOPMENT AGREEMENTS Sec. 4-56-090. Effect of Development Agreement.

• A. Policies, regulations, and rules. 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. State law. In compliance with State law (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 prevent the City from conditionally approving or disapproving any subsequent development project application on the basis of existing or new policies, regulations, and rules.

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