Chapter 17.138 — DEVELOPMENT AGREEMENT PROCEDURE

The provisions of this Chapter shall be known as the Development Agreement Procedure. The purposes of these provisions are to prescribe the procedure for consideration of development agreements and, by encouraging appropriate projects, to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. This procedure shall apply to all proposals for development agreements.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013; Prior planning code § 9350)

A.

Any person having a legal or equitable interest in the real property involved may, upon approval pursuant to the development agreement procedure in this Chapter, enter into a development agreement with the City for any specific development project which involves either:

A total of at least four (4) acres of land area; or

Five hundred thousand (500,000) square feet of floor area; and is a project intended to be developed in stages; or

Involves land sold or leased by the Redevelopment Agency or the successor to the Redevelopment Agency of the City, and is to be carried out by agreement with the Redevelopment Agency or the successor to the Redevelopment Agency.

B.

The development agreement shall not be approved unless the project has received, or simultaneously receives, whatever design review, conditional use permit, preliminary Planned Unit Development plan approval, and/or variance it may otherwise require. For the duration of the particular agreement, and unless otherwise provided in the terms thereof, there shall be a contractual guarantee that the project covered by the agreement may be pursued under the applicable procedural criteria, if any, and other zoning regulations, and plans or other documents referred to by any such criteria, as they existed when the agreement was approved and notwithstanding any subsequent changes in said zoning regulations or documents. However, the agreement may also subject the proposal to special conditions to benefit or protect the City for entering into the development agreement. The conditions may include, but are not limited to, supplemental restrictions on kinds of uses, Floor-Area Ratio, or density; special conditions or criteria for required subsequent zoning approvals, if any; and requirements for the reservation, dedication, or improvement of land for public purposes or accessible to the public.

(Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2-2013)

Application for a development agreement shall be made by a person, or the authorized agent of a person, having a legal or equitable interest in the affected property. Application shall be made on a form prescribed by the City Planning and Building Department and shall be filed with such Department. The application shall be accompanied by the fee prescribed in the fee schedule in Chapter 17.150 and by the proposed development agreement and any supporting material which, between them, shall include the following:

A.

An identification of the affected property and the proposed parties to the agreement;

B.

A description of the development project, indicating the proposed kinds of uses, Floor-Area Ratio or density, and building height and size, and such additional information as may be required to allow the applicable criterion and factors to be applied to the proposal. Such information may include, but is not limited to, site and building plans, elevations, relationships to adjacent properties, and operational data. Where appropriate the description may distinguish between elements of the project which are proposed to be fixed under the agreement and those which may vary;

C.

An identification of any subsisting planned unit development permit or other special zoning approval which has already been obtained for the development project;

D.

The special conditions, if any, to be imposed pursuant to Section 17.138.015;

E.

The proposed duration of the agreement and timing of the development project;

F.

A program for periodic review under Section 17.138.090.

(Ord. No. 13763, § 5, 10-3-2023; Ord. No. 13357, § 3(Exh. A), 2-16-2016; Ord. No. 13172, § 3(Exh. A), 7-2- 2013; Prior planning code § 9351)

An application for a development agreement shall be considered by the City Planning Commission which shall hold a public hearing on the application. Notice of the hearing shall be given by posting an enlarged notice on the premises of the subject property. Notice of the hearing shall also be given by mail or delivery to all persons shown on the last available equalized assessment roll as owning real property within three hundred (300) feet of the property involved; provided, however, that failure to send notice to any such owner where his or her address is not shown in such records shall not invalidate the affected proceedings. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. If, however, the conditions as set forth in Section 17.130.020 apply, alternative notification procedures discussed therein may replace or supplement these procedures. The Commission shall determine whether the proposal conforms to the criterion set forth in Section 17.138.050, and may recommend approval or disapproval of the application, or recommend its approval subject to changes in the development agreement or conditions of approval, giving consideration to the factors set forth in Section 17.138.060. Should a decision not be rendered within sixty (60) days after the filing, the application shall be deemed approved except when, pursuant to the California Environmental Quality Act, an environmental document is required prior to decision, in which case should a decision not be rendered within sixty (60) days after final action on the environmental document, the application shall be deemed approved. In any case, however, the date by which a decision must be rendered may be extended by agreement between the Director of City Planning or the City Planning Commission and the applicant. The Commission shall, within ten days of its decision, forward its recommendations to the City Council.

(Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9352)

After a recommendation has been rendered by the Commission, the City Council shall set the date for consideration of the matter. After setting the hearing date, the Council, prior to hearing the appeal, may refer the matter back to the Planning Commission for further consideration and advice. Appeals referred to the Planning Commission shall be considered by the Commission at its next available meeting. Any such referral shall be only for the purpose of issue clarification and advice. In all cases, the City Council shall retain jurisdiction and, after receiving the advice of the Planning Commission, shall hold a hearing on and decide the appeal.

The City Clerk shall notify the Secretary of the City Planning Commission of the date set for consideration thereof. Notice of the hearing shall be given by mail or delivery to the applicant, to all parties who have commented on the initial application, and to other interested parties as deemed appropriate. All such notices shall be given not less than seventeen (17) days prior to the date set for the hearing. The Council shall review the recommendation of the Commission and shall determine whether the proposal conforms to the criterion set forth in Section 17.138.050, and may approve or disapprove the proposed development agreement, or approve it subject to changes therein or conditions of approval, giving consideration to the factors set forth in Section 17.138.060. If the Council approves the development agreement or approves it subject to changes or conditions, it shall do so by ordinance and the agreement shall be effective upon the effective date of the ordinance. In any case, the decision of the Council shall be final.

(Ord. No. 13779, § 2(Exh. A), 1-16-2024; Ord. 12776 § 3, Exh. A (part), 2006: prior planning code § 9353)

A development agreement may be approved only if it is found that the proposal is consistent with the Oakland General Plan and with any applicable district plan or development control map which has been adopted by the City Council, as said plans or map currently exist.

(Ord. No. 13064, § 2(Exh. A), 3-15-2011; prior planning code § 9354)

In reviewing an application for a development agreement, the City Planning Commission and the City Council shall give consideration to the status and adequacy of pertinent plans; any uncertainty or issues about the affected area which may suggest the retention of flexibility; the traffic, parking, public service, visual, and other impacts of the proposed development project upon abutting properties and the surrounding area; the provisions included, if any, for reservation, dedication, or improvement of land for public purposes or accessible to the public; the type and magnitude of the project's economic benefits to Oakland, and of its contribution if any toward a meeting of housing needs; and to any other comparable, relevant factor.

(Prior planning code § 9355)

Within ten (10) days after the effective date of the development agreement, the City Clerk shall record with the County Recorder a copy of the agreement. If the agreement is amended, canceled, or revoked pursuant to Section 17.138.080 or 17.138.090, the City Clerk shall record notice of such action with the recorder.

(Prior planning code § 9356)

A subsisting development agreement shall be enforceable by any party thereto. The interests of the applicant may not be transferred or assigned to a new person without the written consent of the city. In any case, the burdens of such agreement shall also bind, and its benefits shall also inure to, all successors in interest. A development agreement may be amended, or canceled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Such amendments and cancellations shall be processed in the same manner as an original application and shall be subject to the same procedural requirements.

(Prior planning code § 9357)

Each development agreement shall be reviewed at least once every twelve (12) months, and the review period shall be specified in the agreement. Application for periodic review shall be made on a form prescribed by the City Planning and Building Department and shall be filed with such department. The application shall be accompanied by the fee prescribed in the city master fee schedule. Failure to file for such review within the time limits specified in the agreement shall render the agreement null and void. The applicant or successor in interest shall be required to demonstrate good faith compliance with the terms of the agreement. If the Director of City Planning finds that such compliance has been deficient, he or she shall forward this finding and his or her recommendation to the City Council, for consideration in accordance with the enforcement procedure in Chapter 17.152.

(Ord. No. 13763, § 5, 10-3-2023; Ord. 12776 § 3, Exh. A (part), 2006: Ord. 12237 § 4 (part), 2000: prior planning code § 9358)

Whenever a development agreement is proposed for a project which requires additional planned unit development or other special zoning approval, or subdivision approval, the application for the development agreement may be substituted with the application for said approval, but shall nonetheless be subject to all the separate procedure, and criterion and factors, pertaining to review of development agreements.

(Prior planning code § 9359)