Milpitas Municipal Code Ch. D.14 Development Agreements

This Chapter establishes procedures for the review of Development Agreements, in compliance with California Government Code section 65864 et seq. A Development Agreement is a mutually agreed upon contract between an applicant and the City that provides benefit to both parties. Through a Development Agreement, the City can receive greater community benefits that it could otherwise achieve under this Title, the Milpitas Municipal Code, and state law.

(Ord. No. 38.858, § 4, 9/2/25)

Only an applicant who has a legal or equitable interest in the real property which is the subject of the Development Agreement, as determined in the sole discretion of the Director, may file an application to enter into a Development Agreement with the City.

(Ord. No. 38.858, § 4, 9/2/25)

A. Filing. A Development Agreement application shall be prepared, filed, and processed in compliance with Chapter D.2 (Procedures) and this Chapter.

B. Required Information.

1. All lawfully required documents, information, and materials shall accompany the application. The Director may require an applicant to submit additional information and supporting data as is necessary to evaluate and process the application.

2. An application for a Development Agreement shall be accompanied by maps, plans, reports, development and performance standards, schematic drawings, or other documents deemed necessary by the Director to sufficiently detail or illustrate intended or permitted uses and their location on the property, the density or intensity of use, and the maximum size and height of structures as appropriate to evaluate the application request. This information may be included in a Specific Plan or other type of application.

C. Form of Agreement. Each application shall be accompanied by the form of Development Agreement acceptable to the City Attorney. All documents required, including the agreement and any attachments and exhibits, shall be suitable for recordation as determined by the City.

(Ord. No. 38.858, § 4, 9/2/25)

A. Director Evaluation. After a proposed Development Agreement has been filed with the Department, the Director shall review the Development Agreement to determine whether it conforms with the provisions of this Chapter.

B. Public Hearings.

1. Planning Commission Hearing. The Planning Commission shall conduct a public hearing on the Development Agreement consistent with Section D.2.040.G (Public Hearings) and shall make a recommendation to the Council.

2. Council Hearing.

a. Council shall conduct a public hearing on the Development Agreement consistent with Section D.2.040.G (Public Hearings).

b. If the Council approves a Development Agreement, the approval shall be implemented through the adoption of an ordinance containing the findings required by Section D.14.050 (Findings).

(Ord. No. 38.858, § 4, 9/2/25)

The Council may approve a Development Agreement, with or without conditions, only after the following findings are made:

A. The Development Agreement is consistent with the goals, policies, general land uses, and programs specified in the General Plan;

B. The Development Agreement is consistent with any Specific Plan, if applicable;

C. The Development Agreement and accompanying development maps, plans, and other supporting information are compatible with the uses authorized in, and the performance and development standards prescribed for, the zone in which the subject parcel or site is located;

D. The Development Agreement is in conformity with and will promote public convenience, general welfare, and good land use and development practices;

E. The Development Agreement shall be shown to be of greater benefit to the community than development absent the Development Agreement;

F. The term or duration of the Development Agreement has a commensurate relationship to the benefit(s) provided;

G. The Development Agreement contains the mandatory provisions specified in California Government Code section 65865.2 and any other terms required by Council; and

H. The Development Agreement complies with all other applicable requirements of California Government Code section 65864 et seq.

(Ord. No. 38.858, § 4, 9/2/25)

No later than 10 days after the ordinance approving a Development Agreement takes effect, the City Manager shall execute the Development Agreement, and the City Clerk shall record the Development Agreement with the County Recorder in compliance with California Government Code section 65868.5.

(Ord. No. 38.858, § 4, 9/2/25)

A. Requirement for Annual Review. Every Development Agreement approved and executed in compliance with this Chapter shall be subject to periodic review every 12 months or less by the City during the full term of the agreement. The burden of proof shall be on the applicant, contracting party, or successor in interest to demonstrate compliance in good faith to the terms and conditions of the agreement to the full satisfaction of, and in a manner prescribed by, the City.

B. Initiation of Review. The applicant, contracting party, or successor in interest shall initiate annual review by submitting a written statement to the Director describing their good faith substantial compliance with the terms and conditions of the agreement for the prior year.

C. Fees. Appropriate fees to cover the City's cost to conduct the annual reviews shall be collected from the applicant, contracting party, or successor in interest prior to completion of each annual review. These fees may be established in the Development Agreement or by the City consistent with Milpitas Municipal Code Chapter IV-3 (Fee and Service Charge Revenue/Cost Comparison System).

D. Determination upon Review. The Director shall review the materials furnished by the applicant, contracting party, or successor in interest to determine upon the basis of substantial evidence whether or not the applicant has, for the period under review, complied in good faith with the terms and conditions of the Development Agreement.

1. Finding of Compliance. If the Director, based on substantial evidence, determines that the applicant is in compliance with the provisions of the Development Agreement, the Director shall deliver a report of the determination to the Council and then no further action is required.

2. Finding of Noncompliance. If the Director finds the applicant has not complied with the provisions of the Development Agreement, the Director shall issue a finding of noncompliance. The Director shall specify in writing to the applicant the respects in which the applicant has failed to comply with the Development Agreement 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 in accordance with this Chapter.

3. Appeal of Determination. Within 10 days after issuance of a finding of noncompliance, any interested person may file a written appeal of the finding with the Council as described in Section D.2.040.N (Appeals). 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 Council of the issuance of the finding on the appeal, shall conclude the review for the applicable period. The determination shall be final.

(Ord. No. 38.858, § 4, 9/2/25)

A. A Development Agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to the agreement or their successors in interest in compliance with California Government Code section 65868. The City shall have notice of the amendment, modification or termination recorded with the County Recorder's office.

B. If, upon a finding under Subsection D.14.070.D.2 (Finding of Noncompliance), the City determines to proceed with modification or termination of a Development Agreement, the City shall give notice to the applicant of its intention to do so. The procedure for modifying or terminating a Development Agreement is the same as the procedure for entering into a Development Agreement as specified in this Chapter. If the City modifies or terminates a Development Agreement in compliance with this Chapter, the City shall have notice of the noncompliance recorded with the County Recorder's office.

(Ord. No. 38.858, § 4, 9/2/25)

A. Unless otherwise provided by the Development Agreement, the rules, regulations, and official policies governing permitted 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 rules, regulations, and official policies in force at the time of execution of the Development Agreement.

B. Unless specifically provided in the Development Agreement, the Development Agreement does 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 under the Development Agreement, nor does a Development Agreement prevent the City from conditionally approving or denying any subsequent development project application on the basis of existing or new rules, regulations, and policies.

(Ord. No. 38.858, § 4, 9/2/25)