Chapter 9.53 — DEVELOPMENT AGREEMENTS

(a)

This chapter outlines the procedures and requirements for the review and approval of development agreements upon application by, or on behalf of property owners or other persons having a legal or equitable interest in the property proposed to be subject to the agreement. It is intended that the provisions of this chapter shall be fully consistent, and in full compliance with the provisions of state law (California Government Code, art. 2.5 of ch. 4 of div. 1 of tit. 7, §§ 65864 et seq.), and shall be so construed.

(b)

In construing the provisions of any development agreement entered into pursuant to this chapter, those provisions shall be read to fully effectuate, and to be consistent with, the language of this chapter, state law (Government Code, art. 2.5 cited above), and the agreement itself. In construing inconsistent provisions of a development agreement, reference shall be made to the following documents, and in the following order:

(1)

The plain terms of the development agreement itself.

(2)

The provisions of this chapter.

(3)

The provisions of state law (Government Code, art. 2.5 cited above).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.010. - Application.

(a)

Any owner of real property may request and apply through the director to enter into a development agreement provided the following:

(1)

The property proposed to be subject to the agreement shall be not less than one acre in size.

(2)

The status of the applicant as an owner of the property is established to the satisfaction of the director.

(3)

The application is made on forms approved and contains all information required by the director.

(4)

The application is accompanied by all other lawfully required documents, materials, and information.

(b)

The director is authorized to receive, review, process and prepare, together with recommendations for commission and council consideration, all applications for development agreements. The director may call upon all other departments of the city for timely assistance in complying with this chapter.

(c)

Processing fees, as established by resolution of the council, shall be collected for any application for a development agreement made pursuant to the provisions of this chapter. Additionally, appropriate fees shall be established and collected for periodic reviews conducted pursuant to section 9.53.035.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.015. - Public hearings.

(a)

The director, upon finding the application for a development agreement complete, shall set the application, together with recommendations, for public hearing before the commission pursuant to chapter 9.56 (Hearings and Appeals). Following conclusion of the public hearing by the commission, the commission shall make a written recommendation to the council that it approve, conditionally approve, or deny the application.

(b)

Upon receipt of the commission's recommendation, the city clerk shall set the application and written report of the commission for public hearing before the council. Following conclusion of the public hearing, the council shall approve, conditionally approve or deny the application.

(c)

Notice of the hearings outlined in subsections (a) and (b) above shall be given in the form of a notice of intention to consider approval of a development agreement as required by state law (Government Code § 65867).

(d)

Should the council approve or conditionally approve the application, it shall, as a part of its action of approval, direct the preparation of a development agreement embodying the terms and conditions of the application as approved or conditionally approved by it, as well as an ordinance authorizing execution of the development agreement by the city manager.

(e)

The ordinance shall contain findings, and the facts supporting them, that the development agreement is consistent with the general plan and with any applicable specific plans and this code, and that the agreement will promote the public interest and welfare of the city.

(f)

The ordinance may be subjected to referendum in the manner provided by state law.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.020. - Content of development agreement.

(a)

Mandatory contents. A development agreement entered into pursuant to this chapter shall:

(1)

Specify the duration of the agreement.

(2)

Specify the permitted uses for the subject property.

(3)

Specify the density or intensity of the permitted uses.

(4)

Describe the maximum height and size of proposed structures.

(5)

Describe the provisions, if any, for reservation or dedication of land for public purposes.

(6)

Prohibit protection from either a future growth control ordinance or a future increase in development fees.

(7)

Provide for a tiered amendment review procedure that may incorporate the following:

a.

Director sign-off for minor modifications.

b.

Commission sign-off for major modifications.

c.

Approval of major amendments by the council.

(8)

Provide for the possibility of subsequent discovery of health and safety issues such as a "compelling public necessity" (e.g., the discovery of a new environmental health hazard) which would necessitate a reconsideration/ amendment of the previously approved development agreement.

(b)

Permissive contents. A development agreement entered into pursuant to this chapter may include the following:

(1)

Conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that the conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development specified in the agreement.

(2)

Provisions which require that construction be commenced within a specified time and that the project or any phase thereof be completed within a specified time.

(3)

Terms and conditions relating to applicant financing of necessary public improvements and facilities, including, but not limited to, applicant participation in benefit assessment proceedings.

(4)

Any other terms, conditions and requirements as the council may deem necessary and proper, including, but not limited to, a requirement for ensuring, to the satisfaction of the city, performance of all provisions of the agreement in a timely fashion by the applicant/contracting party.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.025. - Execution and recordation.

(a)

The city shall not execute any development agreement until on or after the date upon which the ordinance approving the agreement, and enacted pursuant to section 9.53.015, becomes effective.

(b)

A development agreement shall be recorded by the developer in the office of the Orange County Recorder no later than ten days after it is executed.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.030. - Environmental review.

The approval or conditional approval of a development agreement pursuant to this chapter shall be deemed a discretionary act for purposes of the California Environmental Quality Act (CEQA), pursuant to chapter 2 (Environmental Quality).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.035. - Periodic review.

(a)

Every development agreement approved and executed pursuant to this chapter shall be subject to annual city review during the term of the agreement.

(b)

The purpose of the annual review shall be to determine whether the applicant/ contracting party or its successor-in-interest has complied in good faith with the terms of the development agreement. The burden of proof shall be on the applicant/contracting party or its successor to demonstrate compliance to the full satisfaction of, and in a manner prescribed by, the city.

(c)

If, as a result of periodic review pursuant to this section, the council finds and determines, on the basis of substantial evidence, that the applicant/contracting party or its successor-in-interest has not complied in good faith with the terms or conditions of the agreement, the council may order, after a noticed public hearing, that the agreement be terminated or modified.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.53.040. - Effect of development agreement.

Unless otherwise provided by the development agreement, the rules, regulations and official policies governing permitted uses of the land, density, and 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 agreement. A 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

ficial policies in force at the time of execution of the agreement. A 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 disapproving any subsequent development project application on the basis of existing or new rules, regulations, and policies.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Pursuant to this chapter, development agreements approved by the council shall be on file with the city clerk.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.54. - SURFACE MINING AND LAND RECLAMATION

Sec. 9.54.005. - Purpose.

This chapter provides procedures implementing the State Surface Mining and Land Reclamation Act of 1975 (Public Resources Code § 2710 et seq.), for existing legal nonconforming facilities, consistent with the following policies:

(a)

Adverse environmental effects shall be prevented or minimized and mined land shall be reclaimed to a condition adaptable for subsequent land uses.

(b)

The production and conservation of minerals are encouraged, recognizing the importance of recreation, watershed, wildlife, range, forage, and aesthetic enjoyment considerations.

(c)

Residual hazards to the public health and safety shall be eliminated.

(d)

Regulation of surface mining and reclamation operations shall be appropriate to the geologic, topographic, climatic, biologic and social conditions of the specific area being mined.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.010. - Definitions.

(a)

All definitions contained in the State Surface Mining and Land Reclamation Act of 1975 (Public Resources Code § 2710 et seq.), are incorporated herein by reference. The following words, phrases, and terms as used in this chapter shall have the meaning as indicated below:

(1)

Board. The State Mining and Geology Board, established pursuant to State law (Public Resources Code § 660).

(2)

Exploration or prospecting. The search for minerals by geological, geophysical, geochemical, or other techniques, including, but not limited to, sampling, assaying, drilling, or any surface or underground works needed to determine the type, extent, or quantity of mineral present.

(3)

Hazardous excavation. An unattended pit, shaft, portal or other surface opening which if not secured by covering, fencing, or having access restricted by gates, doors, or other reasonable means presents a threat to the physical safety of the public.

(4)

Minerals. Any naturally occurring chemical element or compound or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to coal, peat, and bituminous rock, but excluding geothermal resources, natural gas, and petroleum.

(5)

Plan. A document(s) delineating the proposed program for mining and reclaiming operations of all lands to be affected by the proposed activities.

(6)

State geologist. The individual holding office as provided in state law (California Public Resources Code § 677).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The provisions of this chapter are not applicable to activities excepted under the provisions of the State Surface Mining and Land Reclamation Act of 1975.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.020. - Vested rights.

The existence of vested rights, and the application of this chapter to these rights, shall be determined in compliance with the State Surface Mining and Land Reclamation Act of 1975.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.025. - Plan and conditional use permit required.

Except as provided in the State Surface Mining and Land Reclamation Act of 1975, any person who proposes to engage in a surface mining activity shall, prior to the commencement of the operations as

defined in this chapter, file and obtain approval from the commission and council of a plan and conditional use permit pursuant to the requirements of this chapter and chapter 9.48 (Conditional Use Permits).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.030. - Preparation of plan.

The plan shall be prepared by the applicant and filed with the department for processing. The submitted plan shall include the following information and documents:

(a)

The name and address of the operator and the names and addresses of any persons designated as agent(s) for the service of process or notices.

(b)

The anticipated quantity and type of minerals for which the surface mining operation is to be conducted.

(c)

The proposed dates for the initiation and termination of the surface mining operation.

(d)

The maximum anticipated depth of the surface mining operation.

(e)

The size and legal description of the lands that will be affected by the operation, a map that includes the boundaries and topographic details of these lands, a description of the general geology of the area, a detailed description of the geology of the area in which surface mining is to be conducted, the location of all streams, roads, railroads, and utility facilities within or adjacent to these lands, the location of all proposed access roads to be constructed in conducting the operation, and the names and addresses of all persons having an interest in the surface and mineral interests of these lands.

(f)

A description of and plan for the type of surface mining to be employed and a time schedule that will provide for the completion of surface mining on each segment of the mined lands so that reclamation can be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance by the surface mining operation.

(g)

A description of the proposed use or potential uses of the land after reclamation and written evidence that all owners of interests in the land have been notified of the proposed use or potential uses.

(h)

A description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished, including a description of the manner of control of contaminants and disposal of mining waste and a description of the manner in which rehabilitation of affected stream bed channels and stream banks to a condition minimizing erosion and sedimentation will occur.

(i)

An assessment of the effect of implementation of the plan on future mining in the area.

(j)

A statement that the person submitting the plan accepts responsibility for reclaiming the mined lands pursuant to the plan.

(k)

Any other information which the city may require by ordinance, motion or resolution.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.035. - Applicability.

The plan shall be applicable to a specific parcel(s) and shall be based upon the character of the surrounding area and the features of the property as to type of overburden, soil stability, topography, geology, climate, stream characteristics, and principal mineral commodities.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.040. - Application fee.

An application fee for the purpose of processing the plan and conditional use permit shall be paid to the city at the time of filing. The amount of the required application fee shall be the same as for a conditional use permit pursuant to chapter 9.55 (Applications and Fees).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.045. - Hearings and notice.

Upon completion of the required environmental studies and the filing of all documents required by this code, a public hearing shall be scheduled for commission consideration and recommendation regarding the plan and the companion conditional use permit for the existing surface mining operation pursuant to chapter 9.56 (Hearings and Appeals).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.050. - Commission action.

The commission shall make a written recommendation to the council on the proposed plan and companion conditional use permit whether to approve, approve in modified form or disapprove, based upon the findings contained in section 9.48.025.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.055. - Council action.

Upon receipt of the commission's recommendation, the council may approve, approve in modified form or disapprove the proposed plan and companion conditional use permit based upon the findings contained in section 9.48.025.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.54.060. - Periodic review.

As a condition of approval for the plan and the companion conditional use permit, a periodic review schedule shall be established and maintained to evaluate compliance with the approved plan.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.55. - APPLICATIONS AND FEES

Sec. 9.55.005. - Purpose.

These provisions prescribe the procedures and requirements for filing of applications for permits, amendments, and approvals.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.55.010. - Filing.

Applications for permits, permit modifications, amendments, and other matters pertaining to this code shall be filed with the department on a city application form, together with all fees, plans, maps, and any other information required by the department. The application shall be made by the owner(s) or lessee(s) of property, or their agent(s), or person(s) who have contracted to purchase property contingent upon their ability to acquire the necessary permits under this code, or their agent(s).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.55.015. - Fees.

The council shall, by resolution, establish a fee schedule for permits, amendments, and other matters pertaining to this code. The fee schedule may be changed or modified only by resolution of the council. Review shall not commence on any application until all applicable fees have been paid in full. The city is not required to continue processing any application unless additionally required fees are paid in full. Failure to pay the applicable fees shall constitute grounds for denial of the application.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.56. - HEARINGS AND APPEALS

Sec. 9.56.005. - Purpose.

These provisions specify procedures for hearings before the council, commission, and director and appeals of any requirement, decision or determination made by the director or the commission.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Applications shall be reviewed and processed in a manner consistent with state law (Government Code §§ 65090, 65091, 65453, and 66451.3 and Public Resources Code §§ 21000 et seq.).

Not less than ten days before the date of a scheduled hearing, public notice shall be given by all of the following methods:

(a)

By publication in a newspaper of general circulation serving the city. The notice shall clearly state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body.

(b)

By mailing, not less than ten days prior to the hearing, postage prepaid, to the owners and tenants of property within a radius of 300 feet for projects determined to be categorically exempt, 500 feet for projects receiving a negative declaration, and 1,000 feet for projects subject to an environmental impact report, of the exterior boundaries of the property involved in the application, using for this purpose the last known name and address of these owners as shown upon the current tax assessor's records. Notice is deemed received two days after date of postmark. If rental properties are located within the notification area, the applicant shall provide a list of tenant addresses. The list of property owners and tenant addresses shall be typed upon gummed labels, together with required postage. The list shall be prepared and certified by the applicant, or a title insurance company, civil engineer or surveyor licensed to practice in California. The notice shall clearly state the nature of the request, location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body.

(c)

By mailing, not less than ten days prior to the hearing, postage prepaid, to the owner of the subject real property or the owner's authorized agent, and to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the proposed project. The notice shall clearly state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body. Notice is deemed received two days after date of postmark.

(d)

In the event that the number of owners and tenants to whom notice would be sent pursuant to (b) above is greater than 1,000, in lieu of notice pursuant to (b), notice may be given, not less than ten days prior to the hearing, by placing a display advertisement of at least one-eighth page in the newspaper having the greatest circulation within the area directly affected by the proposed action and in at least one additional

newspaper having general circulation within Orange County. The notice shall clearly state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body.

(e)

By posting, not less than ten days prior to the hearing, in at least three public places within the city, including one public place within the area directly affected by the proposed action. The posted notice shall clearly state the nature of the request, the location of the property (text or diagram), the date, time, and place of the scheduled hearing, and the hearing body.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.015. - Director investigation.

The director shall investigate all of the pertinent facts relating to the application in order to provide the written information necessary for action consistent with the intent of this code and the general plan. The director shall provide the written report containing the required findings to the appropriate review authority.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.020. - Hearing procedure.

Hearings shall be held at the date, time, and place for which notice has been given as required in this chapter. The summary minutes shall be prepared and made part of the permanent case file. Any hearing may be continued provided that prior to the adjournment or recess of the hearing, a clear public announcement is made specifying the date, time, and place to which the hearing will be continued.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.025. - Notice of decision—Director.

The director shall announce and record the decision at the conclusion of the scheduled hearing. The decision shall contain applicable findings and any conditions of approval. Following the hearing, a notice of the decision and any conditions of approval shall be mailed to the applicant at the address shown upon the application.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The commission shall announce and record its decision at the conclusion of the public hearing. The recorded decision shall contain the action of the commission, including all findings, conditions of approval, and reporting/monitoring requirements deemed necessary to mitigate any impacts and protect the health, safety and welfare of the city.

Following the commission hearing, a notice of the decision and any conditions of approval shall be mailed to the applicant at the address shown upon the application.

The recommendation with findings of the commission for the following applications shall be transmitted to the council for final action:

(a)

General plan amendments.

(b)

Zoning map amendments.

(c)

Development Code amendments.

(d)

Specific plans (including amendments and repeals in compliance with state law [Government Code § 65453]).

(e)

Development agreements.

(f)

Surface mining and land reclamation plans.

(g)

Appeals.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

The council shall announce and record its decision at the conclusion of the public hearing. The decision shall contain the findings of the council and any conditions of approval deemed necessary to mitigate any impacts and protect the health, safety and welfare of the city.

Following the council hearing, a notice of the decision and any conditions of approval shall be mailed to the applicant at the address shown upon the application.

The decision of the council shall be final.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Minor exceptions, variances, planned development permits and conditional use permits shall become effective 15 days following the final date of action (i.e., approval) by the appropriate review authority.

Specific plans (including amendments and repeals), general plan amendments, zoning map amendments, Development Code amendments, development agreements, and surface mining and land reclamation plans shall become effective 30 days following the final date of action (i.e., adoption) by the council. The letter of approval shall constitute the permit, and the resolution shall constitute the amendment.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.045. - Appeal of action.

Any determination or action taken by the director may only be appealed to the commission. Similarly, any action taken by the commission, to approve or disapprove an application, may be appealed to the council. Any director action may be appealed to the commission by a member of the commission without a filing fee. Such appeals by members of the commission shall be on the basis that the issues presented are of significant interest and should be decided by the commission. Such an appeal shall not be construed to indicate a position in favor of or opposed to the matter by the commissioner who appeals.

Notwithstanding the foregoing, any director action or commission action may be appealed to the city council by a member of the city council without a filing fee. Such appeals by members of the city council shall be on the basis that the issues presented are of significant interest and should be decided by the council. Such an appeal shall not be construed to indicate a position in favor of or opposed to the matter by the councilmember who appeals.

(Ord. No. 98-193, §§ 1—4, 10-19-98; Ord. No. 05-234, § 13, 9-6-05)

Sec. 9.56.050. - Filing of appeals.

All appeals shall be submitted in writing on a city application form, and shall specifically state the pertinent facts of the case and the basis of the appeal. An appeal of the director's action shall be filed with the department within 15 days following the final date of action for which an appeal is made. An appeal of a commission decision shall be filed in the office of the city clerk within 15 days following the final date of action for which an appeal is made. Appeals shall be accompanied by a filing fee as specified in chapter 9.55 (Applications and Fees).

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.055. - Notice of appeal hearings.

Notice of an appeal hearing shall conform to the manner in which the original notice was given. The appellant shall be responsible for all noticing materials which were required in the original application.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.060. - Effective date of appealed actions.

An action of the director appealed to the commission shall not become final unless and until upheld by the commission. An action of the commission appealed to the council shall not become final unless and until upheld by the council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.56.065. - Reapplication.

When an application for a permit or amendment is disapproved, no application for the same or substantially same permit or amendment shall be filed in whole, or in part, for the ensuing 12 months except as otherwise specified at the time of disapproval. The director shall determine whether the new application is for a permit or amendment which is the same or substantially the same as a previously disapproved permit or amendment. No decision of the director shall be effective until a period of 15 days has elapsed following the written notice of decision.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

CHAPTER 9.57. - INTERPRETATION

Sec. 9.57.005. - Purpose.

These procedures ensure the consistent interpretation and application of the provisions of this code.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.57.010. - Procedure.

A written request for an interpretation of the provisions of this code may be filed, together with all required fees, with the department in compliance with chapter 9.55 (Applications and Fees). The request shall specifically state the code provision(s) in question, and provide any information to assist in its review. The decision of the director may only be appealed to the commission. The decision of the commission may be appealed to the council.

(Ord. No. 98-193, §§ 1—4, 10-19-98)