16.54 Development Agreements

The purpose of this chapter is to provide a process for reviewing development agreement applications which are intended to provide an enhanced degree of certainty in the development process for both the property owner/developer and the affected public agency. State law (Government Code Section 65865) allows local agencies to enter into contractual agreements relating to the intensity, timing, and conditions of development of real properties. This chapter shall not be construed or applied at any time to require the city to enter into an agreement; more specifically, but without limitation, no amount of preliminary negotiations, preliminary work, or any expenditure of funds shall be a basis for a claim of estoppel or bad faith that would require city approval or implementation of an unexecuted agreement.

The public interest is adequately protected by noticed public hearings before the commission and council and by a specific state law (Government Code Section 65867.5) provision subjecting a development agreement to the people's right of referendum.

(Ord. 182 § 2 (part), 1997)

The council is authorized to approve development agreements. The director and commission shall provide writ-ten recommendations to the council regarding development agreements. A public hearing in compliance with Chapter 16.76 shall be required.

(Ord. 182 § 2 (part), 1997)

A. State Law Compliance. The provisions of this chapter shall be fully consistent, and in full compliance, with the provisions of state law (Article 2.5 of Chapter 4 of Division 1 of Title 7, commencing with Section 65864 of the Government Code).

B. Discrepancies. In construing the provisions of any development agreement entered into in compliance with this chapter, those provisions shall be read to fully effectuate, and to be consistent with, the language of this chapter, state law (Article 2.5 of the Government Code, cited above), and the agreement itself. Should any apparent discrepancies between the meaning of these documents arise, 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; and

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

• (Ord. 182 § 2 (part), 1997)

• A. Initiation of Hearings. Hearings may be initiated in the following manner:

1. Council. The council may instruct the commission to set the matter for hearing;

2. Commission. The commission may initiate hearings; or

3. Property Owner. The property owner may file an application for a development agreement.

B. Owner's Request. An owner(s) 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 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; and

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

• (Ord. 182 § 2 (part), 1997)

A. Application. An application for a development agreement shall be filed in compliance with Chapter 16.48 (Application Filing, Processing, and Fees).

B. Contents.

1. Mandatory Contents. A development agreement entered into in compliance with this chapter shall contain the mandatory provisions (e.g., conditions, requirements, restrictions, and terms) specified by state law (Government Code Section 65865.2 [Agreement contents]); and

2. Permissive Contents. A development agreement entered into in compliance with this chapter may contain the permissive provisions (e.g., conditions, requirements, restrictions, and terms) specified by state law (Government Code Section 65865.2 [Agreement contents]).

C. Director's Review. The director is authorized to receive, review, process, and prepare, together with written recommendations for commission and council consideration, all applications for development agreements.

D. Concurrent Processing and Public Hearings. All development related applications shall be processed and scheduled for public hearing(s) concurrently with the application for a development agreement. When a land use entitlement was previously approved, the approved development information shall accompany the development agreement application as required by the director. The council shall be the final review authority for the development agreement and all associated applications.

E. Fees. Processing fees, as established by the council's fee resolution, shall be collected for any application for a development agreement made in compliance with this chapter. Additionally, appropriate fees shall be established and collected for periodic reviews conducted by the director in compliance with subsection 16.54.100(A) (Subject to Periodic Review), below.

F. Demonstrate Public Benefit. Standard city planning and zoning provisions are available for the processing of normal development projects. However, the city recognizes that in specific and unique situations, it may be in the public's best interest to enter into a development agreement for the benefit of both the public and the developer. An applicant for a development agreement shall provide evidence to demonstrate the public benefits to be provided by the proposed development.

(Ord. 293 § 1 (part), 2004; Ord. 182 § 2 (part), 1997)

A. Notice of the Hearings. Notice of the hearings 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 Section 65867).

B. Commission Hearing. 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 in compliance with Chapter 16.76 (Public Hearings). Following conclusion of a public hearing, the commission shall make a written

recommendation to the council that it approve, conditionally approve, or disapprove the application with appropriate findings in compliance with Section 16.54.070 (Findings and Decision), below.

C. Council Hearing. Upon receipt of the commission's recommendation, the city clerk shall set the application and written report of the commission for a public hearing before the council in compliance with Chapter 16.76 (Public Hearings). Following conclusion of the public hearing, the council shall approve, conditionally approve, or disapprove the application with appropriate findings in compliance with Section 16.54.070 (Findings and Decision), below. It may, but need not, refer matters not previously considered by the commission during its hearing back to the commission for report and recommendation. The commission may, but need not, hold a public hearing on matters referred back to it by the council.

D. Adopting Ordinance.

1. An ordinance shall be adopted which authorizes execution of the development agreement by the council. The ordinance shall be in compliance with state law (Government Code Section 65867.5) and shall contain the required findings, in compliance with Section 16.54.070 (Findings and Decision), below, and the facts supporting them. It is the responsibility of the applicant to establish the evidence in support of the required findings. (Ord. 293 § 1 (part), 2004; Ord. 182 § 2 (part), 1997)

The council may approve a development agreement only if all of the following findings of fact can be made in a positive manner: The development agreement would:

A. Be in the best interests of the city; and

B. Be consistent with the objectives, policies, general land uses, and programs of the general plan, any applicable specific plan, and this development code.

• (Ord. 182 § 2 (part), 1997)

A. Effective Date. The city shall not execute any development agreement until on or after the date on which the ordinance approving the agreement, enacted in compliance with Section 16.54.060(D) (Adopting ordinance), above, becomes effective and until it has been executed by the applicant.

B. Agreement Deemed Withdrawn. If the applicant has not executed the development agreement and re-turned the executed agreement to the city clerk within thirty (30) days following the date of council decision to approve the agreement, the development agreement application shall be deemed withdrawn. The council may extend the thirty (30) day period if a written request is filed prior to the expiration.

C. Other Permits or Entitlements. 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. A development agreement shall be recorded with the county recorder no later than ten days after it is executed, in compliance with state law (Government Code Section 65868.5).

• E. Repealed by Ordinance 293.

F. Referendum. The adopting ordinance may be subjected to referendum in compliance with state law (Government Code Section 65867.5).

(Ord. 293 § I (part), 2004; Ord. 182 § 2 (part), 1997)

16.54.090 Environmental Review.

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). (Ord. 182 § 2 (part), 1997)

A. Subject to Periodic Review. Every development agreement, approved and executed in compliance with this chapter, shall be subject to periodic review, as specified in the agreement, by the director during the full term of the agreement. 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 16.54.050(A) (Application), above.

B. Purpose of Periodic Review. The purpose of the periodic 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/or conditions of the development agreement. The burden of proof shall be on the applicant/contracting party or the successor(s) to demonstrate compliance, to the full satisfaction of, and in a manner prescribed by, the city.

C. Result of Periodic Review. If, as a result of a periodic review in compliance with this section, the director finds and determines, on the basis of substantial evidence, that the applicant/contracting party or the successor(s)-in-interest has not complied in good faith with the terms or conditions of the agreement, the director shall notify the commission who may recommend to the council that it order, after a noticed public hearing in compliance with Chapter 16.76 (Public Hearings), the agreement to be terminated or modified.

(Ord. 182 § 2 (part), 1997)

A. Property Owner Initiated. A development agreement may be amended or canceled, in whole or in part, by mutual consent of all parties to the agreement, or their successor(s)-in-interest, in compliance with state law (Government Code Section 65868). The requested amendment or cancellation shall be processed in the same manner specified by this chapter for the adoption of a development agreement.

B. City Initiated. 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 thirty (30) days in advance of the giving of notice of the public hearing to consider an amendment or cancellation. Notice to the property owner(s) shall be given by U.S. mail, with first class postage, addressed to the party at the address last known to the director. (Ord. 182 § 2 (part), 1997)

Unless otherwise provided by the development agreement, the rules, regulations, and official policies 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 rules, regulations, and official policies in force at the time of execution of the agreement.

Unless specifically provided for in the development agreement, the 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. 182 § 2 (part). 1997)

Development agreements approved by the council shall be on file with the city clerk. (Ord. 182 § 2 (part), 1997)