Chapter XIII — PROCEDURES AND REQUIREMENTS FOR DEVELOPMENT

Sections:

13-1 - Intent and Purpose.

13-1.002 Findings and Declaration of Intent.

The California Legislature in Section 65864 of the Government Code has found that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public.

The city council finds that development agreements can strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and assure that appropriate measures to enhance and protect the environment are achieved.

The city council further finds and determines that the public safety, health, convenience, comfort, prosperity and general welfare will be furthered by the adoption of this chapter in order to provide a mechanism for the enactment of development agreements to accomplish the foregoing purposes and aims and the realization of the benefits to be derived therefrom.

(Ord. No. 1151, § 1)

13-1.004 Purpose of Development Agreement. Development agreements will ensure that private projects will be developed in an orderly and economical fashion to the benefit of the city. Development agreements will ensure the developer of a project that, after approval of the project, the project may proceed in accordance with certain existing policies, rules and regulations.

(Ord. No. 1151, § 1)

13-1.006 Authority for Adoption. This chapter is adopted under the authority of California Government Code Sections 65864-65869.5.

(Ord. No. 1151, § 1)

13-2 - Definitions.

13-2.002 Definitions. The following terms when used in this chapter shall have the following respective meanings:

"City" shall mean the City of Novato, a municipal corporation.

"City council" shall mean the city council of the city.

"Community development director" shall mean the director of the city's department of community development or his authorized representative.

"Developer" shall mean a person who has a legal or equitable interest in real property, and who applies for a development agreement for a project on that property pursuant to the procedures specified in this chapter, and who executes and is bound by the terms of the development agreement.

"Development agreement" shall mean a development agreement entered into between the city and a developer pursuant to Government Code Sections 65864-65869.5 and this chapter.

"Person" shall mean an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body, tribunal or any other form of business or legal entity.

"Planning commission" shall mean the planning commission of the city.

"Project" shall mean the development project that is the subject of a development agreement.

(Ord. No. 1151, § 1)

13-3 - Eligibility and Application Processing.

13-3.002 Projects Eligible for Development Agreements. The city council may approve a development agreement as a method of encouraging completion in a timely manner of a permit or approval issued by the city, including:

General plan amendment

Master plan

Precise development plan

Tentative map

(Ord. No. 1151, § 1)

13-3.004 Forms and Information.

The community development director shall prescribe the form of each application, notice, and document required for the consideration and implementation of a development agreement.

The community development director may require a developer to submit such additional information and supporting data as the community development director, city council and/or other city agency considers necessary to properly process the application.

(Ord. No. 1151, § 1)

13-3.006 Fees. The city council shall by separate resolution fix the schedule of fees and charges imposed for the filing and processing of each application and document provided for or approved under this chapter, including appeals, annual reviews, and administration of approved development agreements.

(Ord. No. 1151, § 1)

13-3.008 Parties to a Development Agreement.

The community development director shall require a developer to submit evidence of the nature of the developer's interest in the property and of the authority of the Developer, if the developer is not the sole owner, to apply for the development agreement.

In addition to the city and developer, any Federal, State or local governmental agency or body, or any nonprofit agency may be included as a party to any development agreement.

(Ord. No. 1151, § 1)

13-3.010 Application For a Development Agreement. Each application shall be accompanied by a proposed development agreement on the city's then standard form of development agreement, and shall include any specific proposals for changes in or additions to the language of the standard form. Any proposed development agreement shall contain the provisions required under this chapter and shall also include any other relevant provisions which may be deemed necessary by the community development director.

(Ord. No. 1151, § 1)

13-3.012 Review of Application.

The community development director shall review each application to determine whether it is complete and accurate. If the application is found to be incomplete or inaccurate, the community development director shall reject the application and inform the applicant of the items necessary to properly complete the application. The community development director shall reject any application where the development agreement clearly would be inconsistent with the general plan, any applicable master or precise development plan, zoning or any other land use regulations applicable to the subject property. If the application for a development agreement is submitted in conjunction with an application for other land use approvals, the proposed development agreement shall be reviewed for consistency with the existing and, separately, the proposed land use approvals.

If the community development director determines that the application is complete and accurate, copies of the application shall be forwarded to each appropriate city department and, after consultation with each department, the director shall prepare a staff report and recommendation to the planning commission.

(Ord. No. 1151, § 1)

13-3.014 Contents of Development Agreement.

A development agreement shall specify its duration, the permitted uses of the property thereunder, the density and/or intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, and requirements for construction and maintenance of on-site and off- site improvements or payment of fees in lieu of such dedications or improvements.

A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not affect the developer's responsibility to obtain all land use approvals required by the Novato Municipal Code.

A development agreement may include conditions and restrictions imposed by the city with respect to the project including those conditions and restrictions proposed in an environmental impact report applicable to the project prepared and certified under the California Environmental Quality Act, and the city's regulations with respect thereto, in order to eliminate or mitigate adverse environmental impacts of the project.

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.

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

All development agreements shall contain an indemnity and insurance clause requiring the developer to indemnify and hold the city harmless against claims arising out of the development process, including all legal fees and costs.

A development agreement is a contract that is negotiated and voluntarily entered into by city and developer and may contain any additional or modified conditions, terms or provisions agreed upon by the parties, including sanctions for failure to meet requirements.

A development agreement may include conditions relating to financial guarantees for performance of obligations thereunder.

(Ord. No. 1151, § 1)

13-4 - Hearings.

13-4.002 Planning Commission and City Council Hearings. All development agreements shall be considered at public hearings before the planning commission and the city council. Notice of intention to consider adoption of a development agreement shall be given as provided in section 13-4.012.

(Ord. No. 1151, § 1)

13-4.004 Required Findings for Approval by Planning Commission. After the hearing by the Planning Commission, the planning commission shall make a recommendation to the city council. The recommendation shall include the planning commission's determination whether or not the proposed development agreement:

Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable or proposed master plan or precise development plan;

Complies with the zoning for the real property in question;

Is consistent with and complies with the City's Subdivision Ordinance and State Subdivision Map Act;

Ensures provision of public facilities in a manner consistent with the city's general plan.

(Ord. No. 1151, § 1)

13-4.006 Ordinance; Public Hearing. Adoption of a development agreement is a legislative act and shall be approved by ordinance only after a public hearing before the city council. The ordinance shall refer to and incorporate by reference the text of the development agreement.

(Ord. No. 1151, § 1)

13-4.008 Conduct of Council Hearing. At the hearing, the city council shall consider the planning commission's recommendation together with any additional public testimony, and may approve, disapprove or modify any recommendation of the planning commission. If public testimony is presented on an issue which was not considered by the planning commission, then the city council may, but need not, refer the issue back to the planning commission for further hearing and recommendations.

(Ord. No. 1151, § 1)

13-4.010 City Council Approval. If the city council finds that the development agreement is consistent with the Novato General Plan and any applicable specific plan, and that the agreement will promote the public health, safety and general welfare it may, but is not required to, approve the development agreement.

(Ord. No. 1151, § 1)

13-4.012 Notice.

The community development director shall give all required notices of the city's intention to consider adoption of a development agreement.

The notice of intention shall contain:

The time and place of the hearing;

A general explanation of the matter to be considered including a general description of the area affected;

The location(s) where a copy of the proposed development agreement may be reviewed;

Any proposals in the development agreement affecting the Novato General Plan or any applicable prior approvals of the project;

Other information required by specific provisions of this chapter or which the community development director considers necessary or desirable.

The time and manner of giving notice is by:

Publication at least once in a newspaper of general circulation, published and circulated in the city or if there is none, posting in at least three public places in the city.

Mailing of the notice to all persons shown on the last equalized assessment roll as owning real property within 300 feet of the property which is the subject of the proposed development agreement. If the number of owners to whom notice is to be mailed is greater than 1,000, the community development director may as an alternative provide notice in the manner set forth in subsection 65854.5(b) of the Government Code, or applicable successor code provision.

Such publication and mailing shall be done at least ten days prior to any hearing.

The notice requirements referred to this section are declaratory of existing law. If state law is subsequently amended to prescribe a different notice requirement, notice shall be given in that manner.

(Ord. No. 1151, § 1)

13-4.018 Rules Governing Conduct of Hearings. All the public hearings under this chapter shall be conducted in accordance with the procedures and the time limits specified for the conduct of zoning hearings in accordance with the Municipal Code.

(Ord. No. 1151, § 1)

13-5 - Annual Review.

The community development director shall review the development agreement annually in order to ascertain the good faith compliance by the developer with its terms.

The developer shall initiate the required annual review by submitting a written request at least 60 days prior to the review date specified in the agreement. The developer shall also provide evidence as determined necessary by the community development director to demonstrate good faith compliance with the provisions of the development agreement. The burden of proof by substantial evidence of compliance is upon the developer.

(Ord. No. 1151, § 1)

13-5.004 Finding of Compliance. If the community development director finds good faith compliance by the developer with the terms of the development agreement, he shall issue a finding of compliance, which shall be in recordable form and may be recorded by the developer in the official records after conclusion of the review. The issuance of a finding of compliance by the community development director and the expiration of the appeal period hereinafter specified 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. 1151, § 1)

13-5.006 Finding of Non-compliance.

If the community development director, on basis of substantial evidence, finds the developer has not complied in good faith with the terms or conditions of the development agreement, he shall issue a finding of noncompliance which may be recorded by the city in the official records. The community development director shall specify in writing to the developer the respects in which developer has failed to comply, and may set forth terms of compliance and specify a reasonable time for the Developer to meet the terms of compliance.

If developer does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination pursuant to section 13-6 of this chapter.

(Ord. No. 1151, § 1)

13-5.008 Appeal of Determination. Upon issuance of either a finding of compliance or a finding of noncompliance, the community development director shall give public notice of the issuance in the manner provided by section 13-4.012c of this chapter. Any interested person may file an appeal of the issuance of a finding of compliance or a finding of noncompliance within ten days after the giving of notice of such determination. An appeal to the city council shall be conducted in the same manner as any other appeal before the city council, at which time evidence shall be taken and findings thereon made. After completion of the hearing, the city council shall issue a finding of compliance or of noncompliance.

(Ord. No. 1151, § 1)

13-6 - Cancellation, Modification, or Termination.

13-6.002 Cancellation or Modification by Mutual Consent. Any development agreement may be cancelled or modified by mutual consent of the parties, but only in the manner provided in California Government Code Section 65868 which requires that any proposal to cancel or modify a development agreement be heard and determined in accordance with the procedures specified by this chapter for approval of a development agreement.

(Ord. No. 1151, § 1)

13-6.004 Termination after Non-compliance.

If a finding of noncompliance does not include terms of compliance, or if developer does not comply with the terms of compliance within the prescribed time limits, the community development director shall refer the development agreement to the planning commission for termination. The planning commission shall conduct a public hearing. After the public hearing, the planning commission shall either recommend to the city council that the council terminate the development agreement or recommend that the finding of noncompliance be rescinded and a finding of compliance issued.

The city council shall review the recommendations of the planning commission at a public hearing. After the hearing the city council shall either terminate the development agreement or rescind the finding of noncompliance, and order the issuance of a finding of compliance.

Any public hearing held pursuant to this section shall be noticed in accordance with the procedures specified in section 13-4 of this chapter.

(Ord. No. 1151, § 1)

13-6.006 Rights of the Parties After Cancellation or Termination.

In the event that a development agreement should be cancelled or terminated, all rights of the developer, property owner or successors in interest under the development agreement shall terminate. The city may, in its sole discretion, determine to retain any and all benefits, including reservations or dedications of land, and payments of fees, received by the city.

Notwithstanding the above paragraph, any termination of the development agreement shall not prevent the developer from completing a building or other improvements authorized pursuant to a valid building permit, but the city may take any action permitted by law to prevent, stop, or correct any violation of law occurring after cancellation of the development agreement.

(Ord. No. 1151, § 1)

13-7 - Miscellaneous Provisions.

13-7.002 Effect of Development Agreement.

Unless otherwise provided by the development agreement, the city's rules, regulations and official policies governing permitted uses of the property, density and design; and improvement and construction 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.

A development agreement shall 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 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.

(Ord. No. 1151, § 1)

13-7.004 Rules Affecting Development Agreement. All development agreements shall be subject to the regulations and requirements of the laws of the State of California, the Constitution of the United States and any codes, statutes or executive mandates and any court decisions, state or federal, thereunder. In the event that any such law, code, statute, mandate or decision made or enacted 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 law, code, statute, mandate or decision.

(Ord. No. 1151, § 1)

13-7.006 Separate Procedure. All development agreements entail and consist of a separate procedure from other land use planning procedures and shall not take the place of the zoning ordinance, the general plan, a master plan, precise development plan, conditional use permit, subdivision approval, building permit or any other city planning function. To the extent practicable, public hearings on a proposed development agreement should be held concurrently with the public hearings on related land use approvals.

(Ord. 1151, § 1)

13-7.008 Construction. This chapter governs the interpretation of any development agreement enacted under this chapter.

(Ord. No. 1151, § 1)

13-7.010 Execution and Recordation of Development Agreement, Amendment or Cancellation.

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.

If the parties to the development agreement or their successors in interest cancel or modify the development agreement as provided in Government Code Subsection 65868 and this chapter, or if the city council terminates the development agreement as provided in Government Code Subsection 65865.1 and this chapter for failure of the developer to comply in good faith with the terms or conditions of the development agreement, the city clerk shall, after such action takes effect, record notice of such action with the county recorder.

(Ord. No. 1151, § 1)

13-7.012 Enforcement of a Development Agreement. The procedures for enforcement, modification or termination of a development agreement specified in this section are non-exclusive. A development agreement may be enforced, modified or terminated by any manner otherwise provided by law or by the terms of the development agreement.

(Ord. No. 1151, § 1)

13-7.014 Severability Clause. Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter and development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in a development agreement.

(Ord. No. 1151, § 1)

13-7.016 Judicial Review; Time Limitation.

Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure; and judicial review of any city action taken by the city pursuant

to this chapter, other than the initial approval of a development agreement, shall be writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure. The use of the term "substantial evidence" in this chapter with respect to the quantum of proof necessary in connection 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.

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 90 days after the date of the decision.

(Ord. No. 1151, § 1)