Chapter 18.19 — DEVELOPMENT AGREEMENTS

(a)

This chapter is adopted under the authority of Government Code sections 65864 through 65869.5.

(b)

The purpose of this chapter is to establish rules and regulations for the processing of development agreements.

(Code 1972, § 18.19.010; Ord. No. 706, § 1(part), 1987)

(a)

The director of planning and community development shall prescribe the form of applications, notice and documents provided for or required under this chapter for the preparation and implementation of development agreements, consistent with the provisions of this chapter.

(b)

The director of planning and community development may require an applicant for a development agreement to submit such information and supporting data as the city council and other city agencies to which the application is referred under this chapter consider necessary to process the application.

(Code 1972, § 18.19.020; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, § 19, 1996)

The city council shall by resolution fix the schedule of fees and charges for the filing and processing of each application, review, and document provided for or required under this chapter.

(Code 1972, § 18.19.030; Ord. No. 706, § 1(part), 1987)

(a)

Only a qualified applicant may file an application to enter into a development agreement with the city. A qualified applicant is a person who has a legal or equitable interest in the real property which is to be the subject of the development agreement. The term "qualified applicant" includes an authorized agent. The director of planning and community development shall require an applicant to submit proof of this interest in the real property and of the authority of the agent to act for the applicant. Such proof may include a preliminary report issued by a title company licensed to do business in the state evidencing the requisite interest of the applicant in the real property. Before processing the application, the director of planning and community development shall obtain the opinion of the city attorney as to the sufficiency of the applicant's interest in the real property to enter into the development agreement as a qualified applicant.

(b)

In addition to the city and the qualified applicant, any federal, state or local governmental agency or body may be included as a party to any development agreement. Any such additional party may be made a party to the development agreement pursuant to the provisions of the Joint Exercise of Powers Act (Government Code section 6500 et seq.) providing for joint powers agreements, or provisions of other applicable federal, state or local law, in order to create a legally binding agreement among such parties.

(Code 1972, § 18.19.040; Ord. No. 706, § 1(part), 1987)

(a)

Each application shall be accompanied by the form of development agreement proposed by the applicant. This requirement may be met by designating the city's then standard form of development agreement, if any, and including specific proposals for changes in or additions to the language of the standard form, or by submitting a form of development agreement prepared by the applicant and proposed to be used under this chapter.

(b)

Any development agreement prepared by an applicant shall contain the provisions required under this chapter and shall also include the following:

(1)

The parties to the development agreement;

(2)

The nature of the applicant's interest in the real property making such applicant as a qualified applicant;

(3)

A description of the development project sufficient to permit the development agreement to be reviewed under the applicable criteria of this chapter. Such description may include, but is not limited to, references to site and building plans, elevations, relationships to adjacent properties and operational data. Where appropriate, such description may distinguish between elements of the development project which are proposed to be fixed under the development agreement, those which may vary and the standards and criteria by which the same may be reviewed;

(4)

An identification of the approvals and permits for the development project issued or contemplated by the development agreement;

(5)

The proposed duration of the development agreement;

(6)

A program and standards for periodic review under this chapter;

(7)

Appropriate provisions, acceptable to the city attorney, providing security for the performance of the developer under the development agreement;

(8)

Any other relevant provisions which may be deemed necessary by the director of planning and community development.

(Code 1972, § 18.19.050; Ord. No. 706, § 1(part), 1987)

(a)

The director of planning and community development shall endorse on the application the date it is received. He shall review the application and may reject it by written notice sent within 30 days if it is incomplete or inaccurate for processing. If no such written notice is sent within a 30-day period, the application shall be deemed complete as of that 30th day. If he finds that the application is complete he shall accept it for filing. The director of planning and community development shall review the application and determine any additional material necessary to complete the form of development agreement. After receiving the required information, he shall prepare a staff report and recommendation and shall state whether the development agreement as proposed, or in an amended form (specifying the nature of the amendments), would be consistent with the general plan, any applicable specific plan, and the provisions of this chapter. The director of planning and community development shall complete his review and staff report with 45 days after the application is deemed complete, provided this period may be extended at the request of the qualified applicant.

(b)

The director of planning and community development shall, as part of his review of the application, circulate copies of the proposed development agreement to those city departments having jurisdiction over the development project for review and comment. The city attorney shall also review the proposed development agreement for legal sufficiency. The staff report and recommendation of the director of planning and community development shall include any appropriate recommendations received by other city agencies and proposed form of ordinance authorizing the city to enter into the development agreement.

(Code 1972, § 18.19.060; Ord. No. 706, § 1(part), 1987)

(a)

A development agreement shall specify its duration, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. A development agreement may also include conditions and requirements for subsequent discretionary actions, provided that such conditions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the development agreement.

(b)

A development agreement shall include all conditions imposed by the city with respect to the development project including those conditions required as a result of any environmental impact report prepared under the California Environmental Quality Act and the city's environmental review process to eliminate or mitigate environmental and traffic impacts caused by or aggravated as a result of the development project, provided agreements for special purposes may be adopted covering only certain aspects of the project. Any such special purpose development agreement shall be identified as such.

(c)

All development agreements shall contain an indemnity and insurance clause, in form and substance acceptable to the city attorney, requiring the developer to indemnify the city against claims arising out of the development process, provided that such a provision does not violate applicable law or constitute a joint venture, partnership or other participation in the business affairs of developer by the city.

(d)

All development agreements, or any part of such development agreements, may be subject to subsequent condemnation proceedings by the city.

(Code 1972, § 18.19.070; Ord. No. 706, § 1(part), 1987)

(a)

The city council may approve use of a development agreement as a method of implementing or providing standards and criteria for any approval of the city council or permits or approvals issued or made by any other city agency, including:

(1)

Rezoning;

(2)

Issuance of a conditional use permit;

(3)

Conditions imposed upon approval of a permit after discretionary review;

(4)

Conditions imposed in connection with the adoption of any general plan amendment or specific plan;

(5)

Conditions imposed in any planned unit development;

(6)

Site-specific conditions imposed in any other district;

(7)

Approval of or conditions imposed upon approval of a subdivision or parcel map or maps;

(8)

The formation of any assessment district, benefit district, maintenance district or special benefit district or any other procedure, for the installation of required or necessary on-site or off-site improvements or infrastructure; and

(9)

Mitigation measures imposed upon a development project after approval of an environmental impact area.

(Code 1972, § 18.19.090; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, § 21(part), 1996)

The following findings shall be made by the city council in order to approve the proposed development agreement:

(1)

The proposed development agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan.

(2)

The proposed development agreement is compatible with the uses authorized in, and the regulations prescribed for, the zoning district in which the real property is or will be located.

(3)

The proposed development agreement is in conformity with and will promote public convenience, general welfare and good land use practice.

(4)

The proposed development agreement will not be detrimental to the health, safety and general welfare.

(5)

The proposed development agreement will not adversely affect the orderly development of the property or the preservation of property values.

(6)

The proposed development agreement will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

(Code 1972, § 18.19.100; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, § 22, 1996)

A development agreement is a legislative act and shall be enacted by ordinance only after a public hearing before the city council held pursuant to the procedures described in sections 18.19.140 through 18.19.180. The ordinance shall refer to and incorporate by reference the text of the development agreement.

(Code 1972, § 18.19.110; Ord. No. 706, § 1(part), 1987)

At the hearing, the city council shall consider all of the evidence and public testimony presented and may approve, disapprove or modify the development agreement.

(Code 1972, § 18.19.120; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, § 23, 1996)

Before the city council may approve the development agreement, it must find that its provisions are consistent with the general plan and any applicable specific plans of the city.

(Code 1972, § 18.19.130; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, § 24, 1996)

The director of planning and community development shall give all notices of the city's intention to consider adoption of a development agreement and any other public hearing on a development agreement required by law or this chapter according to the procedures in section 18.19.150.

(Code 1972, § 18.19.140; Ord. No. 706, § 1(part), 1987)

(a)

The form of notice of intention to consider adoption of a development agreement before the city council shall contain:

(1)

The time and place of this hearing;

(2)

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

(3)

The location or locations where a copy of the proposed development agreement may be had;

(4)

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

(b)

The time and manner of giving notice is by:

(1)

Publication at least once and at least ten days prior to the hearing 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;

(2)

Mailing of the notice at least ten days prior to the hearing to the applicant, to the owner of the property subject to the development agreement, to each local agency expected to provide water, sewage, streets, roads, schools or other essential facilities or services to the project whose ability to provide those facilities and services may be significantly affected, to any person who has filed a written request for notice with either the city clerk or with the director of planning and community development, and 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, provided the director of planning and community development director may direct that notice be given over a wider area to adequately inform interested

persons. If the number of owners to whom notice is to be mailed is greater than 1,000, the director of planning and community development may, as an alternative, provide notice in the manner set forth in section 65901 of the Government Code, or applicable successor code provision.

(c)

The city council may direct that notice of the public hearing to be held before it shall be given in a manner that exceeds the notice requirements prescribed by state law, but failure to comply with such procedure shall not invalidate a development agreement entered into by the city under this chapter.

(d)

The notice requirements referred to in subsections (a) and (b) of this section are declaratory of existing law (Government Code section 65867 and sections 65090 and 65091 as incorporated by reference). If and when state law prescribes a different notice requirement, notice shall be given in that manner.

(Code 1972, § 18.19.150; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, §§ 25, 26, 1996)

The failure of any person entitled to receive notice required by law or this chapter shall not affect the authority of the city to enter into nor invalidate a development agreement entered into by the city under this chapter.

(Code 1972, § 18.19.160; Ord. No. 706, § 1(part), 1987)

All the public hearings under this chapter shall be conducted in the same manner as zoning hearings. A copy of any proposed development agreement shall be made available for public review at the planning department prior to the date of any hearing.

(Code 1972, § 18.19.170; Ord. No. 706, § 1(part), 1987)

Formal rules of evidence or procedure which must be followed in a court of law shall not be applied in the consideration of a proposed development agreement under this chapter and the provisions of this chapter shall provide the procedure for such consideration. No action, inaction or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by a court on the ground of the improper admission or rejection of evidence or by reason of any error or informality, as to any procedure whatever unless after an examination of the entire case, including the evidence, the court finds that the error complained of was prejudicial and that by reason of the error the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is no presumption that error is prejudicial or that injury resulted if error is shown.

(Code 1972, § 18.19.180; Ord. No. 706, § 1(part), 1987)

The director of planning and community development shall review the development agreement annually in order to ascertain the good faith compliance by the developer with its terms. The time for review may be modified by the city council at any time upon reasonable notice to the developer, and the development agreement may prescribe a procedure and standards and different times for review of compliance with its terms; provided, however, that a development agreement shall in any event be reviewed for compliance at least once every 12 months.

(Code 1972, § 18.19.190; Ord. No. 706, § 1(part), 1987)

If the director of planning and community development finds good faith compliance by the developer with the terms of the development agreement, he shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the developer in the official records. The issuance of a certificate of compliance by the director of planning and community development and the expiration of the appeal period hereinafter specified without appeal, or the confirmation by the city council of the issuance of the certificate on such appeal, shall conclude the review for the applicable period and such determination shall be final.

(Code 1972, § 18.19.200; Ord. No. 706, § 1(part), 1987)

If the director of planning and community development, on basis of substantial evidence, finds the developer has not complied in good faith with the terms of the development agreement, he shall specify in writing to the developer the respects in which developer has failed to comply. The director of planning and community development shall also specify a reasonable time for the developer to meet the terms of compliance. If such areas of noncompliance are not corrected within the reasonable time limits as prescribed by the director of planning and community development, the development agreement shall be subject to cancellation pursuant to sections 18.19.240 through 18.19.260.

(Code 1972, § 18.19.210; Ord. No. 706, § 1(part), 1987)

Any interested person may file an appeal of the issuance of a certificate of compliance to the city council within ten days after the certificate's issuance. The developer may also file an appeal to the city council of the finding of the director of planning and community development of noncompliance within ten days after the giving of notice of such determination. All appeals before the city council shall be conducted pursuant to a noticed hearing in the same manner as any other appeal before the city council, at which evidence shall be taken and findings thereon made.

(Code 1972, § 18.19.220; Ord. No. 706, § 1(part), 1987)

Any development agreement may be canceled or modified by mutual consent of the parties, but only in the manner provided in California Government Code section 65868. Any proposal to cancel or modify a development agreement shall be heard and determined in accordance with the same procedures specified by this chapter for approval of a development agreement.

(Code 1972, § 18.19.240; Ord. No. 706, § 1(part), 1987)

(a)

If at any time during the term of a development agreement, the director of planning and community development finds, on the basis of substantial evidence, that the developer has not complied in good faith with the terms and conditions of the development agreement, and such noncompliance has not been cured under section 18.19.210, the director of planning and community development shall pursuant to the notice provisions of this chapter request that the city council conduct a public hearing at which the developer must demonstrate good faith compliance with the terms of the development agreement. The burden of proof by substantial evidence of compliance by the developer is upon the developer.

(b)

The city council shall conduct a noticed hearing at which the developer and any other interested person shall be entitled to submit such evidence and testimony as may be germane to the issue of the developer's good faith compliance with the terms of the development agreement. If the city council finds, based on substantial evidence, noncompliance with the terms and conditions of the development agreement, it may either cancel the development agreement upon giving 60 days' notice to the developer, or in its discretion, may allow the development agreement to be continued by imposition of new terms and conditions intended to remedy such noncompliance. The city council may impose such conditions to the action it takes as it considers necessary to protect the interests of the city. The decision of the city council shall be final.

(c)

Any cancellation or imposition of new terms and conditions pursuant to this section shall be noticed in accordance with the procedures specified in sections 18.19.140 and 18.19.150.

(Code 1972, § 18.19.250; Ord. No. 706, § 1(part), 1987; Ord. No. 1024, §§ 21(part), 28, 29, 1996)

In the event that a development agreement should be canceled, or otherwise terminated, unless otherwise agreed, all rights of the developer, property owner or successors in interest under the development agreement shall terminate. Any and all benefits, including money or land, received by the city shall be retained by the city. Notwithstanding the above provision, 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 previously approved by the city or under construction at the time of termination, but the city may take any action permitted by law to prevent, stop or correct any violation of law occurring during and after construction, and the developer or any tenant shall not occupy any portion of the project

or any building not authorized by a previously issued building permit. As used herein, the term "construction" shall mean work under a valid building permit, and the term "completing" shall mean completion for beneficial occupancy for developer's use, or if a portion of the project is intended for use by a lessee or tenant, then for such portion the term "completion" shall mean completion except for interior improvements such as, duct and electrical runouts, floor covering, wall coverings, lighting, furniture, trade fixtures, finished ceilings, and other improvements typically constructed by or for tenants of similar buildings. All such uses shall, to the extent applicable, be deemed nonconforming uses and shall be subject to the nonconforming use provisions of this Code.

(Code 1972, § 18.19.260; Ord. No. 706, § 1(part), 1987)

All development agreements shall be subject to the regulation and requirements of the laws of the state, 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 such provisions of the development agreement shall 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.

(Code 1972, § 18.19.270; Ord. No. 706, § 1(part), 1987)

Development agreements shall not take the place of zoning ordinances, the general plan, conditional use permits, subdivision approvals, building permits or any other city planning functions. If so specified in the development agreement, it shall constitute an approval pursuant to such planning procedures as if separately issued under this Code. To the extent practicable, public hearings on a proposed development agreement may be held concurrently with the public hearings on all related land use approvals and all such approvals shall be made concurrently with the approval of the development agreement.

(Code 1972, § 18.19.280; Ord. No. 706, § 1(part), 1987)

When approved, the development agreement and any development control maps and all notations, references and regulations which are a part of the development agreement shall be considered part of this Code. Development control maps include, but are not limited to, regulations intended to carry out any plan respecting location or type of activities; height, bulk, siding or design of structures; location or design of open areas; and landscaping and other comparable regulations. In the case of any conflict with any other provisions of this Code, such development agreement provisions shall take precedence. Unless otherwise provided by the development agreement, the city's rules, regulations and official policies governing permitted uses of the land, governing density and governing design, improvement and construction standards and specifications applicable to development of the property subject to a development agreement shall be those city rules, regulations and official policies in force at the time of the approval of the development agreement by the city council.

(Code 1972, § 18.19.290; Ord. No. 706, § 1(part), 1987)

This chapter and any subsequent development agreement shall be read together. With respect to any development agreement enacted under this chapter, any provision of such a development agreement which is in conflict with this chapter shall be void.

(Code 1972, § 18.19.300; Ord. No. 706, § 1(part), 1987)

(a)

Within ten days after the ordinance approving the development agreement takes effect, the city council shall execute the development agreement, and the city council clerk shall have the development agreement recorded with the county recorder.

(b)

If the parties to the development agreement or their successors in interest amend or cancel the development agreement as provided in Government Code section 65868 and this chapter, or if the city council terminates or modifies the development agreement as provided in Government Code section 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, have notice of such action recorded with the county recorder.

(Code 1972, § 18.19.310; Ord. No. 706, § 1(part), 1987)

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.

(Code 1972, § 18.19.320; Ord. No. 706, § 1(part), 1987)

(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; and judicial review of any city action taken 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.

(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 proceedings is commenced within 90 days after the date of the decision.

(Code 1972, § 18.19.330; Ord. No. 706, § 1(part), 1987)