Napa County Municipal Code Ch. 1.30 Indemnification of County for Land Use Approvals

A. The board of supervisors finds that applications for land use projects, lot line adjustments, and certificates of compliance may, in addition to other legal requirements, require environmental review by the county pursuant to the California Environmental Quality Act ("CEQA") in the case of discretionary approvals, and chain of title or other detailed record review in the case of discretionary or ministerial approvals. Substantial county time and effort are expended in complying with CEQA's requirements and other legal requirements before granting such approvals.

B. Judicial challenges to the county's approval of these types of applications are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As applicants are the primary beneficiaries of such approvals, it is and has been the policy of the county that it is appropriate that such applicants should bear the expense of defending the permit approval against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger.

(Ord. No. 1328, § 1, 9-29-2009; Ord. 1261 § 1 (part), 2005)

In this chapter the following words or phrases shall have the following meanings:

"Application" means an initial written request required by the county which commences the county's processing of a land use project, lot line adjustment, or certificate of compliance.

"Certificate of Compliance" means any certificate applied for pursuant to Chapter 17.52.

"CEQA" means the California Environmental Quality Control Act (Public Resources Code Section 21000 et seq.) and any action taken pursuant thereto including, but not limited to, an environmental impact report, subsequent environmental impact report, supplemental environmental impact report, mitigated negative declaration, negative declaration, addendum to an environmental impact report or negative declaration, categorical exemption, or a determination that no CEQA document is required.

"County" means the county of Napa, its officers, attorneys, employees, agents, advisory agencies, departments, appeal boards, zoning administrator, planning commission, or board of supervisors.

"Land use project" means any subdivision (as defined in Government Code Section 66424), general or specific plan amendment, conditional use permit, variance, or other permit or activity which requires a discretionary approval.

"Lot line adjustment" means any lot line adjustment applied for pursuant to Chapter 17.46.

(Ord. No. 1328, § 1, 9-29-2009; Ord. 1261 § 1 (part), 2005)

A. At the time an applicant for a land use project, lot line adjustment, or certificate of compliance files an application, and as a condition of the county's accepting for filing, deeming complete, and processing the application, the applicant shall submit to the county a fully executed indemnification agreement agreeing to defend, indemnify, release and hold harmless the county from any claim, action, or proceeding brought against the county to attack, set aside, void or annul the approval based on the county's failure to comply with the requirements of any federal, state, or local law, including but not limited to general plan and zoning requirements, or both. The indemnification shall include damages awarded against the county, if any, costs of suit, attorneys' fees and other expenses incurred in connection with such action.

B. The agreement shall be in a form approved by the board, and shall contain provisions that provide:

1. The county shall promptly notify the applicant of any claim, action, or proceeding brought to attack, set aside, void or annul a discretionary land use project approval, and if the applicant is not promptly notified, the applicant shall not thereafter be responsible to defend, indemnify, or hold harmless the county;

2. The county shall cooperate fully in the defense of the claim, action, or proceeding, and if county fails to do so, the applicant shall not thereafter be responsible to defend, indemnify, or hold harmless the county;

3. The county shall retain the right to participate in the defense of the claim, action, or proceeding if it bears its own attorneys' fees and costs, and defends the action in good faith;

4. The applicant shall not be required to pay or perform any settlement unless the settlement is approved by the applicant; and

5. The applicant shall indemnify the county for all of county's costs, fees, and damages which county incurs in enforcing the indemnification agreement.

(Ord. No. 1328, § 1, 9-29-2009; Ord. 1261 § 1 (part), 2005)

Even if the applicant for a land use project, lot line adjustment or certificate of compliance approval described in Section 1.30.020 fails or refuses to enter into the agreement specified in Section 1.30.030, that applicant, or the owner of the subject property if different from the applicant, shall:

A. Defend, indemnify and hold harmless the county from any claim, action, or proceeding brought against the county to attack, set aside, void, or annul the county's decision to approve the application. This indemnification shall include, but not be limited to, damages awarded against the county, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by applicant, county, and/or the parties initiating or bringing such proceeding;

B. Defend, indemnify and hold harmless the county for all costs incurred in additional investigation of or study of, or for supplementing, preparing, redrafting, revising, or amending any document (such as a negative declaration, Environmental Impact Report ("EIR"), specific plan or general plan amendment), if made necessary by said proceeding and if applicant desires to pursue securing such approvals, after initiation of such claim, action or proceeding, which are conditioned on the approval of such documents; and

C. Indemnify the county for all of county's costs, attorneys' fees, and damages which the county incurs in enforcing the indemnification provisions set forth in this section.

(Ord. No. 1328, § 1, 9-29-2009; Ord. 1261 § 1 (part), 2005)

The applicant shall pay to the county upon demand any amount owed to the county pursuant to the indemnification requirements prescribed in this chapter.

(Ord. No. 1328, § 1, 9-29-2009; Ord. 1261 § 1 (part), 2005)