Monterey County Municipal Code Ch. 18.62 Development Agreements

This Chapter is adopted under the authority of Sections 65864 through 65869.5 of the California Government Code. This Chapter may be cited as the "Development Agreement Ordinance of the County of Monterey."

(Ord. 4236 § 1 (part), 2004)

The purpose of this Chapter is to provide procedures and requirements for the consideration of development agreements. The appropriate use of development agreements can provide a developer greater certainty in the development approval process by vesting certain development rights and provide the County with public benefits by requiring the developer to provide certain public improvements and benefits that would not otherwise be obtained through other applicable development approval processes. Among other benefits, development agreements have the potential to strengthen the planning process, encourage comprehensive planning, reduce uncertainty in the development review process, reduce the economic costs of development, and facilitate the development and financing of infrastructure and other public improvements.

(Ord. 4236 § 1 (part), 2004)

The following definitions shall apply for the purposes of this Chapter:

A. "Appropriate authority" means that person, official, or body designated by the County Code to hear, grant, deny, modify, condition, revoke or otherwise act on land use permits and entitlements.

B. "Development agreement" means a binding agreement entered into between the County and a qualified applicant pursuant to the requirements and procedures of State law and this Chapter.

C. "Developer" means a qualified applicant who has entered into a development agreement approved and executed by the County. The term "developer" includes any successors in interest to the qualified applicant and includes the plural in the case of a developer consisting of more than one party.

D. "Director" means the Director of Planning of the County of Monterey or his or her designee.

E. "Pending application" means a proposal for a development agreement that had been submitted by a qualified applicant to the County and was under active negotiation with the County prior to the effective date of Ordinance No. 4236 adding this Chapter.

F. "Property" means real property, unless otherwise specified.

G. "Qualified applicant" means a person who has a legal or equitable interest in the real property which is the subject of the development agreement and who is applying to enter into a development agreement with the County. The term "qualified applicant" shall include the plural in the case of an applicant consisting of more than one party. The term "person" as used herein includes any legal entity.

Words not defined herein shall have the same meaning as provided elsewhere in the County Code or in applicable State law.

(Ord. No. 5135, § 53, 7-7-2009)

A. This Chapter authorizes the County of Monterey, at its sole discretion, to enter into a development agreement with any qualified applicant for the development of real property. The provisions of this Chapter are applicable throughout the unincorporated area of the County of Monterey outside of the Coastal Zone.

B. Eligibility for Development Agreement and Pre-screening of Development Agreement Proposals.

1. To file an application for a development agreement, the applicant must be a qualified applicant, as defined by this Chapter, and must obtain prior authorization from the Board of Supervisors to file such application based on the pre-screening process described in this section.

2. Prior to filing a development application, an applicant must make a proposal for a development agreement which shall be pre-screened by the Board of Supervisors in accordance with the following procedures:

a. The applicant must submit the proposal for a development agreement to the Director together with the required fee for the processing of the development agreement proposal. The proposal shall include explanatory text, plans, maps, and such other documentation as the potential applicant elects to submit. The Director may request such additional material as deemed necessary to make a recommendation.

b. Upon acceptance of the proposal, the Director shall review the proposal and prepare a report and recommendation to the Board of Supervisors on whether the proposal should be accepted for the purpose of filing an application for a development agreement.

c. The Board of Supervisors, after considering the merits of the proposal, shall authorize the filing of an application for a development agreement or shall direct staff to terminate proceedings. The Board shall be guided in its determination by the following eligibility criteria:

(1) Development proposals which are eligible for consideration for a development agreement shall be limited to large projects in which the developer makes a substantial contribution to infrastructure, open space, affordable housing, or other public improvements and amenities of benefit to the County that would not otherwise be obtained through other applicable development approval processes; and

(2) The application for a development agreement pertains to an area governed by a specific plan previously adopted by the County or the application for a development agreement will be submitted in conjunction with an application for rezoning, a specific plan, subdivision map, combined development permit, or other discretionary land use entitlement authorizing the development which is the subject of the proposed development agreement.

d. A determination to authorize the filing of an application for a development agreement does not commit the County to approve the subsequent development agreement.

3. Pending applications, as that term is defined herein, are exempt from the prescreening process set forth in this section and also exempt from Sections 18.62.060, 18.62.070, 18.62.080, and 18.62.090 of this Chapter. If the Planning Commission has already made a recommendation to the Board of Supervisors with regard to a pending application prior to the effective date of Ordinance No. 04236 adding this Chapter, then Section 18.62.110 shall not apply.

(Ord. 4270 § 1, 2005: Ord. 4236 § 1 (part), 2004)

A. The development agreement may specify, consistent with State law, the development rights vested by the development agreement. Except as otherwise provided by the development agreement, the regulations which apply to the development of the property subject to the development agreement shall be as follows:

1. Development of the property shall be subject to the rules, regulations, ordinances, and official policies applicable to such development on the effective date of the development agreement. To the extent any future changes in the County's general plan, specific plans, zoning ordinance, or any future rules, ordinances, regulations or policies adopted by the County purport to be applicable to the property but are inconsistent with the terms and conditions of the development agreement, the terms of the development agreement shall prevail, unless the parties thereto mutually agree to amend or modify the development agreement.

2. A development agreement shall not prevent the County, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with the terms and conditions of the development agreement, nor shall a development agreement prevent the County from denying or conditionally approving any subsequent development application on the basis of such existing or new rules, regulations, and policies.

3. In the event State or Federal laws or regulations enacted after the effective date of the development agreement prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the development agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. Said modification or suspension shall be noticed and heard in accordance with the procedures set forth in Section 18.62.140 of this Chapter. The development agreement shall not preclude the County from applying to the property which is the subject of the development agreement those changes in County plans, regulations and policies which are specifically mandated by changes in State or Federal laws or regulations.

4. Nothing in this Chapter or in the development agreement shall be construed to limit the authority of the County to impose requirements and conditions on subsequent required approvals or permits if such requirements or conditions are necessary to protect persons or property from conditions which create a condition dangerous to health or safety, nor shall this Chapter or the development agreement be construed to limit the authority of the County to require compliance with building standards codes and such other codes, ordinances, and regulations as are necessary to protect against a condition dangerous to the public health or safety.

B. Notwithstanding any other provision of this Chapter, subsequent applications for development of the property which is the subject of the development agreement shall be subject to the development and processing fees which are in force and effect at the time the subsequent applications are filed.

C. Nothing in this Chapter shall be construed to limit the authority or obligation of the County to hold necessary public hearings or to limit the discretion of the County or any of its officers or officials with regard to the rules, regulations, ordinances, laws, and entitlements of use which require the exercise of discretion by the County or any of its officers or officials, provided that subsequent discretionary actions shall not conflict with those elements vested as a result of the development agreement.

(Ord. 4236 § 1 (part), 2004)

A. Each proposed development agreement shall be submitted to the Director. Each development agreement shall include, without limitation, the following terms, conditions, restrictions, and requirements:

1. Duration of the agreement, including a specified termination date, if appropriate;

2. Permitted uses of the property;

3. The density or intensity of uses;

4. The maximum height and size of proposed buildings;

5. Provisions for reservation, dedication, and improvement of land for public purposes;

6. 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 land for the uses and to the density or intensity of development set forth in the agreement;

7. Provisions regulating the timing and schedule of development;

8. Terms and conditions relating to applicant financing of required public facilities and subsequent reimbursement over time;

9. A faithful performance bond or other security where deemed necessary by the County in an amount County deems sufficient to guarantee the faithful performance of specified, terms, conditions, restrictions, and requirements of the development agreement;

10. An appeal process for resolution of disputes regarding County's administrative interpretation of the development agreement;

11. A clause, in a form acceptable to County Counsel, that requires the developer to defend, indemnify, and hold harmless the County, its agents, officers, and employees from any claim, action or proceeding against the County or its agents, officers, and employees arising in connection with the development agreement;

12. Provisions pertaining to the obligations of the developer and the status of land use entitlements approved with respect to the property which is the subject of the development agreement in the event of termination of the development agreement, whether the termination be based on mutual consent or a finding of noncompliance with the development agreement.

13. Standard contract clauses, such as, without limitation:

a. A clause describing the parties,

b. A legal description of the property,

c. Provisions for amendment of the agreement,

d. Provisions for termination of the agreement,

e. Provisions relating to default,

f. Clauses incorporating or implementing this Chapter and Government Code Section 65864 et seq., as may be periodically amended, which clauses may include, without limitation, subjects such as periodic compliance review and enforcement;

14. Such other provisions as the Board of Supervisors may deem appropriate.

(Ord. 4236 § 1 (part), 2004)

A. Only a qualified applicant, as defined by this Chapter, may file an application to enter into a development agreement. The Director may, at his or her sole discretion, require an applicant to submit proof of the applicant's legal or equitable interest in the real property which is the subject of the proposed development agreement. The Director may, at his or her sole discretion, require an agent acting on behalf of a qualified applicant to submit documentation authorizing the agent to act on behalf of the applicant.

B. All applications for development agreements shall be filed with the Director. The Director shall prescribe the form of such application and the information and data required to be set forth thereon. The application shall contain, without limitation, the following information and documentation:

1. The name and address of the applicant and of all persons and entities having any legal or equitable interest in the property which is the subject of the proposed development agreement;

2. Evidence demonstrating that the applicant has a legal or equitable interest in the property which is the subject of the proposed development agreement;

3. Written consent to make the application from all persons and entities having a legal or equitable interest in the real property which is the subject of the proposed development agreement, unless the Director waives this requirement;

4. Legal description of the real property and a listing of the Assessor's parcel numbers for the property, including a statement of total area of the property which is the subject of the proposed development agreement;

5. The form of development agreement proposed by the applicant, consistent with the requirements of Section 18.62.060 above;

6. Detailed information about the historic and current use of the property proposed to be subject to the development agreement;

7. All explanatory text, plans, maps, drawings, pictures, and such other documentation, information and supporting data as the Director, other County departments, and the Monterey County Water Resources Agency determine are necessary to process the application;

8. Designation of an agent representing legal ownership of all property proposed to be subject to the development agreement.

C. The Director may waive the filing of one or more of the application materials required by Subsection B above if the same information is filed with an application for a specific plan or land use entitlement to be considered concurrently.

D. A separate application shall be filed for each development project for which a development agreement is requested.

(Ord. 4236 § 1 (part), 2004)

The filing of a proposal for a development agreement, an application for a development agreement, or application for an amendment to a development agreement shall be accompanied by payment of such fees as are established by the Board of Supervisors and set forth in the Monterey County Fee Resolution for the processing of such applications.

(Ord. 4270 § 2, 2005: Ord. 4236 § 1 (part), 2004)

A. The Director shall review the application for completeness and shall determine any additional requirements necessary to make the application complete. The Director may reject the application as incomplete if it is not made by a qualified applicant, if it has not been authorized for filing by the Board of Supervisors pursuant to the prescreening process required by this Chapter, of if it does not contain the documentation required by the Director, other County Departments, and the Water Resources Agency.

B. At such time that the Director has determined the application is complete, the applicant may enter into negotiations with the County regarding the terms of the development agreement. When the County and applicant have reached tentative agreement on the terms of the development agreement, the development agreement may be considered by the Planning Commission in accordance with the procedures set forth in Section 18.62.110 of this Chapter, provided, however, that the proposed development agreement shall be considered concurrently with any applications for discretionary land use entitlements authorizing the development which is the subject of the proposed development agreement.

(Ord. 4270 § 3, 2005: Ord. 4236 § 1 (part), 2004)

A. Notice of public hearings to consider adoption of a development agreement shall be given pursuant to this Chapter and Government Code Section 65867, as may be periodically amended. The notice may be combined with any other notice required by law for other actions to be considered concurrently with the development agreement.

B. The contents of the public hearing notice shall contain at a minimum the following information:

1. The time and place of the public hearing;

2. The identity of the appropriate authority;

3. A general explanation of the matter to be considered at the public hearing; and

4. A general description, in text or by diagram, of the location of the real property that is the subject of the public hearing.

C. The notice shall be given as provided in Government Code Sections 65090 and 65091 and shall, at a minimum, be given in all of the following ways:

1. Notice of the public hearing shall be mailed or delivered at least ten (10) days prior to the public hearing to the owner(s) of the subject real property or the owner's duly authorized agent, and to the applicant;

2. Notice of the public hearing shall be mailed or delivered at least ten (10) days prior to the public hearing to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected;

3. Notice of the public hearing shall be mailed or delivered at least ten (10) days prior to the public hearing to all owners of real property as shown on the latest equalized assessment role within three hundred (300) feet of the real property that is the subject of the proposed development agreement. If the number of owners to whom notice would be mailed is greater than one thousand (1,000), the County may, in lieu of mailed or delivered notice, provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation within the County at least ten (10) days prior to the hearing.

4. If the notice is mailed or delivered pursuant to Paragraph 3 above, the notice shall also be published pursuant to Government Code Section 6061 at least ten (10) days prior to the public hearing in at least one newspaper of general circulation in the County within the area of the property which is the subject of the development agreement.

5. The notice shall be mailed or delivered at least ten (10) days prior to the public hearing to any person who has filed a written request for notice with either the Clerk to the Board or the Department of Planning within the year preceding the hearing.

6. The Director may also, at least ten (10) days prior to the hearing, post public hearing notices in at least three different public places, accessible and visible to the public, on and near the subject property, or may provide notice by such additional means and to such additional persons as the Director, in his or her discretion, may determine to be appropriate.

D. The failure of any person or entity to receive notice of a hearing shall not affect the authority of the County to enter into a development agreement.

E. The applicant is responsible to provide a complete list of all the names, addresses, and Assessor's parcel numbers of all property owners within three hundred (300) feet of the property which is the subject of the development agreement, including the owner(s) of the subject property. The list shall be taken from the latest equalized assessment roll as prepared by the County Assessor.

F. Any public hearing conducted under this Chapter may be continued from time to time.

(Ord. 4236 § 1 (part), 2004)

(Ord. No. 5135, § 54, 7-7-2009)

A. The Director shall cause a staff report and recommendation to be prepared and shall set a date for public hearing before the Planning Commission to consider the proposed development agreement and other proposed land use entitlements to be considered concurrently with the development agreement. Notice of the public hearing shall be provided in accordance with Section 18.62.100 of this Chapter. The Planning Commission shall hold at least one noticed public hearing on any proposed development agreement.

B. At the conclusion of the hearing, the Planning Commission shall by written resolution make its recommendation concerning the proposed development agreement to the Board of Supervisors. The Planning Commission shall not recommend that the County enter into the development agreement unless the Commission makes all of the following findings:

1. The provisions of the agreement are consistent with the County's general plan, any applicable area plan, and any applicable specific plan. A finding of consistency may be made based on proposed amendments to said plans, provided the proposed amendments are adopted prior to or concurrently with the development agreement.

2. If the development agreement includes a proposed subdivision as defined by Government Code Section 66473.7, the development agreement provides that any tentative map prepared for the subdivision comply with the provisions of Government Code Section 66473.7.

3. The development agreement is in the public interest.

4. The development agreement provides public improvements and benefits that would not otherwise be obtained through other applicable development approval processes.

5. The development agreement is consistent with all of the requirements of this Chapter.

(Ord. 4270 § 4, 2005: Ord. 4236 § 1 (part), 2004)

A. Upon receipt of the Planning Commission's recommendation, the Clerk to the Board of Supervisors shall schedule a public hearing and notice the public hearing in accordance with Section 18.62.100 above.

B. The Board of Supervisors shall hold at least one noticed public hearing to consider the proposed development agreement. The hearing shall be "de novo."

C. The Board shall consider the recommendation of the Planning Commission. The Board may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation within the time limit set by the Board.

D. The Board of Supervisors, in its sole discretion, may determine whether to enter into a development agreement. The Board of Supervisors may add, modify, or delete any provision of the development agreement as a condition of approval. The Board shall not approve a development agreement unless it makes all of the findings specified in Section 18.62.110 above.

E. If the Board approves the development agreement, it shall do so by the adoption of an ordinance, approving the development agreement and authorizing the Chair of the Board of Supervisors to execute the development agreement. No development agreement shall be signed by the Chair of the Board until it has been approved as to form by County Counsel and executed by the applicant and by all persons having a legal or equitable interest in the property which is the subject of the development agreement. Owners of interests in easements need not execute the development agreement unless the County determines that their agreement to be bound by the development agreement is necessary.

F. The effective date of the development agreement shall be the effective date of the ordinance adopting the agreement unless the development agreement specifies a later effective date.

(Ord. 4236 § 1 (part), 2004)

A. No later than ten (10) days after the effective date of the development agreement, the Clerk to the Board of Supervisors shall cause to be recorded with the County Recorder, at applicant's expense, a fully executed copy of the agreement, which shall include a legal description of the property subject thereto, and the ordinance approving the development agreement.

B. The burdens of the development agreement shall be binding upon, and the benefits of the development agreement shall inure to, all successors in interest to the parties to the agreement.

C. If the parties to the development agreement or their successors in interest amend or cancel the development agreement as herein provided, the Director shall cause notice of such action to be recorded with the County Recorder, at the expense of the canceling party.

(Ord. 4236 § 1 (part), 2004)

A. Any development agreement may be amended, or cancelled in whole or in part, by the mutual consent of the parties to the agreement or their successors in interest. Any party may initiate the amendment or cancellation of a development agreement. The procedure for amending a development agreement shall be the same as the procedure for approval of the agreement, including notice of public hearings on the matter in accordance with Section 18.62.100 of this Chapter and adoption of the amendment by ordinance subject to the findings specified in Section 18.62.110 of this Chapter. Trivial changes not affecting any material term or condition of the development agreement and correction of clerical errors are not an "amendment" within the meaning of this subsection and may be approved by the Director. Notice and hearing of cancellation of the agreement prior to the expiration of the term of the agreement shall be conducted in the same manner as required for approval of the agreement.

B. The issuance of any land use permit or entitlement which requires a change in any vested element of the development agreement shall require an amendment to the development agreement for such change to be vested.

(Ord. 4270 § 4 [5], 2005: Ord. 4236 § 1 (part), 2004)

A. The Director shall, on an annual basis and at any other time that the Director deems appropriate during the term of the agreement, review the developer's compliance with the terms and conditions of the development agreement. The developer shall have the burden of demonstrating good faith compliance with the terms of the development agreement and shall provide such information and documents as the Director deems reasonably necessary to ascertain compliance with the development agreement. The developer shall bear the costs of the periodic review, including without limitation the costs of notice of any public hearings held in connection with the periodic review.

B. If the Director determines, based on substantial evidence, that the developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the Director shall adopt a written resolution certifying compliance with the development agreement through the applicable period of review.

C. If the Director determines, based on substantial evidence, that the developer has not complied in good faith with the terms and conditions of the development agreement, the Director shall set a public hearing before the Planning Commission, noticed in accordance with Section 18.62.100, at which the developer shall be given an opportunity to demonstrate good faith compliance with the terms of the development agreement. The developer shall bear the burden of proving compliance.

D. If the Planning Commission determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the Planning Commission shall adopt a written resolution certifying compliance with the development agreement through the applicable period of review. If the Planning Commission determines on the basis of substantial evidence that the developer has not complied in good faith with the terms and conditions of the agreement during the period under review, the Planning Commission shall forward its recommendation to the Board of Supervisors.

E. Upon receipt of the Planning Commission's recommendation regarding compliance with the development agreement, the Clerk to the Board of Supervisors shall set a public hearing, noticed in accordance with Section 18.62.100 above, to determine whether the developer has failed to comply in good faith with the terms and conditions of the development agreement and whether to modify or terminate the agreement. The hearing before the Board shall be "de novo" and shall be held within sixty (60) days of the Clerk's receipt of the Planning Commission's recommendation. The developer shall be given an opportunity to be heard at the hearing before the Board, and the developer shall bear the burden of proving compliance.

F. If the Board of Supervisors determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the Board of Supervisors shall adopt a written resolution certifying compliance with the development agreement through the applicable period of review. If the Board of Supervisors finds, on the basis of substantial evidence, that the developer has not complied in good faith with all terms and conditions of the development agreement, the Board may terminate or modify the agreement. Any such termination or modification shall be approved by ordinance.

(Ord. 4236 § 1 (part), 2004)