Newark Municipal Code Ch. 17.40 Development Agreements

This chapter establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects, as provided for in state law. Such agreements provide a greater degree of certainty than the normal permit approval process by granting assurance that an applicant may proceed with development in accord with policies, rules, and regulations in effect at the time of approval subject to conditions to promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A development agreement may be considered for a complex or multi-phase development projects that will require a developer to make a substantial investment at the early stages of the project for planning and engineering for the entire project and for public facilities and services. In order to be considered for a development agreement, a project shall be consistent with the general plan and any applicable specific plan unless the applicant has submitted an application for any necessary amendments to the general plan or specific plan.

A. Property Subject to Annexation. An applicant whose property is located within the city's sphere of influence, or whose property is the subject of a pending application for inclusion into the sphere of influence, may file an application to enter into a development agreement.

1. The agreement shall not become operative unless annexation proceedings annexing property to the city are completed within the period of time specified by the agreement.

2. If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement shall be null and void.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. The director shall negotiate the specific components and provisions of the development agreement on behalf of the city for planning commission review and recommendation to the city council.

B. The city council shall have the exclusive authority to approve a development agreement.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

An applicant for a development project may request that the city review the application as a development agreement application in accordance with the following procedures. The city incorporates by reference the provisions of Government Code Sections 65864—65869.5. In the event of any conflict between these statutory provisions and this section, this section shall control.

A. Application Requirements. An applicant shall submit an application for a development agreement on a form prescribed by the director, accompanied by the required fees. The director shall identify submittal requirements for applications for development agreements and may require an applicant to submit such additional information and supporting data as considered necessary to process the application. In addition to any other information that the director requires, each application for a development agreement shall be accompanied by the general terms and conditions of the agreement proposed by the applicant and shall include the contents required in Subsection B below.

B. Contents of Development Agreements.

1. Required Contents. A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability.

2. Improvements and Fees. A development agreement may include requirements for construction and maintenance of on-site and off-site improvements or payment of fees in lieu of such dedications or improvements.

3. Conditions. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions, but does not eliminate the applicant's responsibility to obtain all required land use approvals.

4. Environmental Mitigation. A development agreement may include, without limitation, conditions and restrictions imposed by the city with respect to the project, including those conditions, restrictions and mitigation measures proposed in any final environmental impact report applicable to the project that eliminate or mitigate adverse environmental impacts of the project.

5. Phasing. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.

6. Financing. If the development agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

7. Indemnity. A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the city harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

8. Performance Obligation Fees. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Planning Commission Hearing. The planning commission shall provide notice and conduct a public hearing in conformance with the provisions of Chapter 17.31, Common Procedures.

B. Recommendation to City Council. Within thirty days after the public hearing has been closed by the planning commission, it shall render its decision in the form of a written recommendation to the city council. Its report and recommendation, including proposed findings on the matters stated in Section 17.40.060.B, Findings, shall be forwarded to the city council.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. City Council Hearing. Within forty-five days after receipt of the written recommendation of the planning commission, the city clerk shall set the matter for public hearing before the city council. A public hearing shall be held within a reasonable time after receipt of the planning commission recommendation but no later than the time specified by Section 65943 of the Government Code.

B. Findings. The city council shall not approve a proposed development agreement unless it finds that its provisions are consistent with the general plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with proposed general plan or specific plan provisions to be adopted concurrently with the approval of the proposed development agreement.

C. Decision. After the city council completes the public hearing, the city council shall approve, modify, or disapprove the development agreement. Approval of a development agreement shall be by ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement. Matters not previously considered by the planning commission during its hearing may, but need not, be referred back to the planning commission for report and recommendation. The planning commission may, but need not, hold a public hearing on matters referred back to it by the city council.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

Within ten days after the ordinance approving the development agreement takes effect, the city manager shall execute the development agreement on behalf of the city, and the city clerk shall record the development agreement with the county recorder.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The applicant shall be required to demonstrate compliance with the provisions of the development agreement at least once a year at which time the director shall review each approved development agreement.

A. Finding of Compliance. If the director, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement no action is required.

B. Finding of Noncompliance. If the director finds the applicant has not complied with the provisions of the development agreement, the director may issue a finding of noncompliance which may be recorded by the city with the county recorder after it becomes final. The director shall specify in writing to the applicant the respects in which the applicant has failed to comply, 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 pursuant to this chapter.

C. Appeal of Determination. Within ten days after issuance of a finding of noncompliance, any interested person may file a written appeal of the finding with the city council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the city council. 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 city council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Mutual Agreement. Any development agreement may be canceled or amended by mutual consent of the parties following compliance with the procedures specified in this section.

1. Director Approval. Any amendment to a development agreement which does not relate to the duration of the agreement, permitted uses of the property, density or intensity of use, timing of development, height or size of proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions and requirements relating to subsequent discretionary actions related to design or improvement or construction standards and specifications may be made by the director without noticed public hearing. A development agreement may also specify procedures for additional administrative approval of minor amendments by mutual consent of the applicant and director.

2. City Council Approval. Except as provided in Paragraph 17.40.090.A.1, Director Approval, the procedure for proposing and adopting an amendment to, or the cancellation in whole or in part, of a development agreement, shall be the same as the procedure for entering into a development agreement in the first instance.

B. After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the director may refer the development agreement to the city council for termination or modification. The city shall first give written notice to the party executing the agreement of its intention to initiate such proceedings. Such notice shall be given not less than thirty days in advance of public notice of the city council hearing to consider an amendment or cancellation. After the public hearing, the city council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

C. Recordation. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the city terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the city clerk shall record notice of such action with the county recorder.

D. Rights of the Parties After Cancellation or Termination. In the event that a development agreement is cancelled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the city may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the city.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Existing Rules and Regulations. Unless otherwise specified in the development agreement, the city's rules, regulations, and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those city rules, regulations, and official policies in force on the effective date of the development agreement. The applicant shall not be exempt from otherwise applicable city ordinances or regulations pertaining to persons contracting with the city.

B. Future Rules and Regulations. A development agreement shall not prevent the city, in subsequent actions applicable to the property, from applying new rules, regulations and policies that do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. A development agreement shall not prevent the city from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals.

C. State and Federal Rules and Regulations. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in Government Code Section 65865.4 or any successor statute, are non-exclusive. A development agreement may be enforced, amended, modified, cancelled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)

A. Any judicial review of the initial approval by the city of a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure. Any judicial review of any city action taken pursuant to this chapter, other than the initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure. The use of the phrase "substantial evidence" in this chapter with respect to the quantum of proof necessary in conjunction with a finding of noncompliance is not intended to limit nor impose a standard of review upon any court pursuant to a proceeding initiated for that purpose.

B. Any action or proceeding to attack, review, set aside, void or annul any decision of the city taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety days after the date of decision.

(Ord. No. 503, § 1(Exh. A), 1-25-2018)