Chapter 19.11 — DEVELOPMENT AGREEMENTS

Section

• 19.11.001 Purpose; authority

• 19.11.002 Definitions

• 19.11.003 Eligible development projects

• 19.11.004 Qualification of applicants

• 19.11.005 Duration of development agreements

• 19.11.006 Form and contents of development agreements

• 19.11.007 Applications

• 19.11.008 Review process

• 19.11.009 Variance

• 19.11.010 Recordation

• 19.11.011 Amendment and cancellation by mutual consent; modification and termination because of

• non- compliance

• 19.11.012 Periodic compliance review

• 19.11.013 Miscellaneous provisions

• 19.11.014 Appeals

(A) This chapter authorizes the county, at its discretion, to enter into a binding agreement with any qualified applicant for the development of real property. The agreement, referred to as a “development agreement” shall be governed by this chapter. This chapter is adopted under authority of Cal. Gov’t Code §§ 65864 et seq. (B) The purpose of this chapter is to strengthen the public planning process, to encourage private participation in comprehensive, long range planning and to reduce the economic costs of development by enabling the county and a developer seeking county approval of a development project to enter into a development agreement which vests certain development rights and which requires a developer to provide additional public benefits. The appropriate use of development agreements will reduce uncertainty in the development review process, will promote long-term stability in the land use planning process and will result in significant public gain. (1966 Code, § 6A.05-1) (Ord. 653, § 1(part))

(A) The terms used in this chapter are consistent with the same terms used in the enabling legislation, Cal. Gov’t Code § 65864. (B) Where used in this chapter, the following words and phrases shall have the following meanings given to them in this section. BOARD. The Board of Supervisors of the county. COMMISSION. The Planning Commission of the county. COUNTY. The County of San Benito. DEPARTMENT. The Building and Planning Department of the county. DEVELOPER. The qualified applicant for a development interest in the real property which is the subject of the development agreement, the owner or owners of the fee title of the real property which is the subject of the development agreement, or the authorized agent of any of the foregoing persons. DEVELOPMENT PROJECT. As project proposed for the development of real property requiring the approval of the county in order to proceed to completion. A DEVELOPMENT PROJECT, as used in this chapter, may involve county approval that is classified either as legislative action or as quasi-judicial (administrative) action. A single development project may include multiple legal parcels as long as the parcels are contiguous and part of a single integrated plan of development. PLANNING DIRECTOR. The head of the Planning and Building Departments and the Chief Planning Officer of the county. Unless otherwise stated, the Planning Director’s designee may be substituted for the Planning Director wherever this chapter mentions Planning Director. STATE. The State of California. (1966 Code, § 6A.05-2) (Ord. 653, § 1(part))

(A) The Board of Supervisors determines that it is the policy of the county that development agreements shall result in public benefits beyond those benefits which would be forthcoming through conditions of development project approvals. (B) Consequently, only those proposed development projects which are of a size and nature so as to produce one or more of the following substantial additional public benefits from a development agreement are eligible for consideration for a development agreement: (1) Provisions for construction of critical roadway lengths where their construction might otherwise be accomplished tract by tract, uncoordinated with the need for overall arterial roadway system completion; (2) Provisions for transportation system management plans to include greater availability of public transit opportunities, carpooling, vanpooling, staggered work hours and/or staggered work days, thereby reducing roadway congestion during peak periods; (3) Commitments to accelerate development of employment sites to promote county work opportunities;

(4) Accelerated or increased dedication of improvement of parks and open space in excess of current requirements; (5) Dedication of land and/or construction of other needed county infrastructure, including, without limitation, fire stations, libraries, schools, police facilities or water, sewer or solid waste disposal facilities. It is the policy of this Board is that a commitment to participate, on a pro rata basis, in county library, fire and Sheriff facilities necessary to serve new development be included as a public benefit in all development agreements; and (6) Greater commitment to affordable housing than that which is authorized by state law or county policies. (1966 Code, § 6A.05-3) (Ord. 653, § 1(part))

Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has a legal or equitable interest in the real property which is the subject of the development agreement. In all instances, all owners of the fee title of the real property shall join in the application as additional applicants. The Planning Director may require an applicant to submit proof of the applicant’s interest in the real property. The qualified applicant and any successors in interest may be hereinafter referred to as “developer”. (1966 Code, § 6A.05-4) (Ord. 653, § 1(part))

Every development agreement shall be for a limited term of years, not to exceed 15 years from the date of execution, except where a longer time is necessary to fund debt financing requirements for public facilities or except under extraordinary economic circumstances. The term shall be subject to amendment in accordance with the procedures set forth herein. (1966 Code, § 6A.05-5) (Ord. 653, § 1(part))

(A) Form of development agreements. A development agreement generally shall be in the form of the standard agreement which the Board may approve from time to time. However, except as otherwise provided by law or as specified in these procedures and requirements, provisions of a development agreement may be modified, deleted or included as is appropriate to the specific circumstances of the application. In the event and to the extent a development agreement contains different provisions than those set forth in this Chapter 19.11, then the provisions in the development agreement shall prevail. (B) Contents of development agreements. Development agreements shall contain the following terms and conditions: (1) Duration of the agreement; (2) Permitted uses of the property; (3) The density or intensity of uses; (4) The maximum height and size of proposed buildings and structures; (5) Provisions for reservation or dedication of land for public purposes; (6) Conditions, terms, restrictions, and requirements for subsequent discretionary actions; provided that such conditions, terms, restrictions 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; (7) Provisions that the construction of the development project, or any phase thereof, shall be commenced at a particular time and completed at a particular time; or any provision regulating the timing of development; (8) The terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time; (9) Any other terms to which the county and the applicant agree which are consistent with Cal. Gov’t Code §§ 65864 et seq.; (10) Standard contract clauses, such as: (a) A clause describing the parties; (b) A clause specifying the definitions employed in the agreement; (c) Any clause which may be deemed legally necessary by the County Counsel; and (d) Clauses incorporating or implementing this chapter; which clauses include, without limitation, subjects such as periodic review of the development agreement, amendment or termination of the development agreement, enforcement of the development agreement, attorneys’ fees, status of parties and description of property.

(11) A clause requiring the developer to indemnify and defend the county from all claims, or proceedings, or losses arising in connection with the development agreement or in connection with the development project itself, except such claims, proceedings or loses of by the developer, resulting either from the county’s unexcused default of this agreement or from the sole negligence or wilful misconduct of the county. (C) Miscellaneous requirements of development agreements. (1) Vested rights. (a) A development agreement shall specify the elements of the development project will are intended to vest. (b) The vesting shall mean that all standards in the General Plan, zoning ordinance and other rules, regulations, ordinances and official policies applicable to the development project on the date of the adoption of the ordinance approving the agreement remain in full force and effect. Except as otherwise specified in this chapter, to the extent any changes in such General Plan, zoning ordinance or other rules, regulations, ordinances or policies are in conflict with the vested elements, the vested elements shall prevail. (c) To the extent any provisions of future General Plans, zoning ordinance or other rules, ordinances, regulations or policies, are applicable to the subject property and are not in conflict with the vested elements, such future General Plan, zoning ordinance or other rules, ordinances, regulations or policies shall be applicable. Notwithstanding the foregoing, changes in the county’s Building, Plumbing, Electrical, Fire and Grading Codes shall apply to any project subject to a development agreement equally as to any project in the unincorporated area which project is not subject to a development agreement. (2) Assignability of development agreements. Development agreements shall be assignable subject to terms mutually agreeable to the parties. (3) Future discretionary review. The development agreement shall only bind the county to the extent that the county has approved the development project. The county retains full discretionary powers to approve or disapprove any subsequent applications related to the development project as if the development agreement were not in effect. (4) No substitute for project conditions. The consideration for a development agreement shall not be a substitute for project conditions imposed incidental to any discretionary approvals related to the development project. (1966 Code, § 6A.05-6) (Ord. 653, § 1(part); Ord. 941, § 1, 2015)

(A) Filing. All applications for development agreements shall be filed with the Director of Planning. The form of the application shall be as prescribed by the Director. (B) Contents. The application shall include: (1) A proposed development agreement consistent with § 19.11.006; (2) Sufficient information and data to enable the Planning Director to perform an initial study pursuant to the California Environmental Quality Act (CEQA); (3) Sufficient information and data to enable the Planning Director to analyze the application under this chapter; (4) Sufficient information and data to establish that the project is consistent with the county’s General Plan and all applicable Specific Plans; and (5) Such other information and data as the Planning Director may require as is necessary to evaluate and process the application. (C) Fees. (1) Applicant shall pay all actual costs incurred by the county in processing an application for a development agreement as an application and processing fee. (2) No application shall be accepted unless the application is accompanied by a deposit of $5,000. The deposit shall be used to pay for the application and processing fee. The county’s actual costs shall be computed by multiplying the number of hours actually expended by various county personnel in processing the application times the standard contract hourly rates established for those personnel by the County Auditor. Expenses incurred by the county, including, without limitation, legal fees for the negotiation of the development agreement, shall also be included. If the actual costs are less than the amount deposited pursuant to this section, the county shall return the balance to the developer. In cases where the Planning Director determines that the costs actually incurred to date exceed, or will exceed, the original deposit plus any additional deposits made by the developer pursuant to this section, the Planning Director shall notify in writing the developer to submit, within 30 days, an additional deposit in an amount equal to the original deposit as a condition precedent to further processing of the application. (3) The failure to deposit the additional deposit shall be deemed to be a withdrawal of the application. (D) Separate development projects. A separate application shall be filed for each development project for which a development agreement is requested.

(1966 Code, § 6A.05-7) (Ord. 653, § 1(part))

(A) Planning Director’s review. (1) Upon receipt of the completed application, the Planning Director shall complete an initial review of the application to determine if the application is appropriately made. An application for a development agreement is “appropriately made” if it is made by a qualified applicant for an eligible development project. If the Planning Director determines that the application is not appropriately made, the Planning Director shall notify the applicant of this fact and the application process shall terminate. (2) If the Planning Director determines that the application is appropriately made, the Planning Director shall evaluate the application to determine if the county should enter into the proposed development agreement. The Planning Director shall make a report to the Planning Commission which shall hold a public hearing to consider the application as further specified in this section. (B) Planning Commission review. (1) If the Planning Director determines that the application is appropriately made, the matter shall be scheduled for a public hearing before the Planning Commission. After the public hearing by the Planning Commission, the Commission shall make its recommendation about the application for a development agreement by written resolution to the Board of Supervisors. The Planning Commission shall not recommend that the county enter into the development agreement unless the Commission makes all of the following findings: (a) The development agreement is consistent with the General Plan and any applicable specific or area plans; (b) The development agreement is compatible with the uses authorized in, and the regulation prescribed for, the zoning district in which the real property is located; (c) The development agreement is consistent with public health, safety and general welfare and good land use practice; (d) The development agreement will not adversely affect the orderly development of the surrounding community; (e) The proposed development project should be encouraged in order to meet important economic, social, environmental or planning goals of the county; and (f) The subject development project and development agreement are consistent with this chapter. (2) The Commission’s resolution to the Board shall include evidence supporting its determination regardless of the nature of the Commission’s recommendation. (C) Decision by the Board of Supervisors. (1) Upon receipt of the Planning Commission’s recommendation, the Board of Supervisors shall schedule a public hearing on the matter. After completion of this hearing, the Board may accept, modify or disapprove the recommendation of the Planning Commission. It may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for further report and recommendation. (2) The Board of Supervisors shall not approve a development agreement unless it makes the findings specified in division (B) of this section. Even if all of the findings set forth in division (B) of this section can be made, the Board of Supervisors, in its sole discretion, may deny the development agreement on the grounds that in its opinion the proposed development agreement is not in the best interest of the public. (3) The Board of Supervisors may add, modify or delete any provision of the proposed development agreement as a condition of approval. (D) Ordinance approving the development agreement. (1) If the Board of Supervisors approves the development agreement, it shall do so by the adoption of an ordinance approving the development agreement and authorizing the Planning Director to execute the development agreement. (2) After the ordinance approving the development agreement takes effect, the Planning Director shall execute the agreement on behalf of the county. No development agreement shall be signed by the Director until it has been duly signed by the applicant. If the applicant has not signed and returned the approved development agreement to the Director for the Director’s signature within 30 days of the Board’s adoption of the ordinance approving the development agreement, the application shall be deemed withdrawn by applicant. (3) The effective date of the agreement shall be the effective date of the ordinance, unless a later date or the occurrence of an event is specified in the development agreement as the effective date. (4) No development agreement shall be approved until the underlying legislative approvals have been obtained by the developer. (E) Notices/public hearings.

(1) Notice. The Planning Director shall give notice of all public hearings conducted by the Planning Commission and the Board of Supervisors to consider adoption of a development agreement as required by Cal. Gov’t Code § 65867 and by this chapter. (2) Failure to receive notice. The failure of any person entitled to notice by law to receive the notice does not affect the authority of the county to enter into a development agreement. (3) Rules governing conduct of public hearings. Public hearings shall be conducted as nearly as possible in accordance with the procedural standards required for taking legislative action. Each person interested in the application shall be given an opportunity to be heard. The applicant shall have the burden of proof to establish the mandatory findings specified in divisions (B) and (C)(2) above. (4) Irregularity in proceedings. No action, inaction or recommendation regarding a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity or omission as to any matter pertaining to the application, notice, finding, record, hearing, report, recommendation or any matter of procedure unless after an examination of the entire case, including the evidence, a court is of the opinion that the error complained of was prejudicial, that the complaining party suffered a substantial injury by reason of the prejudice caused by the error, and that a different result would have been more probable than not had the prejudicial error not occurred. There shall be no presumption: (a) That an error is prejudicial; (b) That a prejudicial error resulted in substantial injury; or (c) That a different result would have been more probable if the prejudicial error would not have occurred. (1966 Code, § 6A.05-8) (Ord. 653, § 1(part); Ord. 891, § 1)

(A) Right of variance. A developer, after decision on an application, may seek a variance to any provision of this chapter. A variance may be granted only if the developer establishes all of the following conditions: (1) That there are exceptional or extraordinary circumstances applying to the subject property involved and to the proposed use; (2) That because of such exceptional or extraordinary circumstances, the literal enforcement of specified provisions of this chapter would result in practical difficulty or unnecessary hardship such as to deprive the developer of a substantial property right possessed by other developers with development agreements in the same zoning district; (3) That the allowance of the variance will not, under the circumstances of the particular case, be materially detrimental to the public welfare or materially injurious to persons or property in the vicinity; and (4) That the allowance of the variance will be harmonious with the general intent of this chapter and the General Plan. (B) Procedure. The application for a variance shall follow procedures identical to those applicable to an application for a development agreement. (1966 Code, § 6A.05-9) (Ord. 653, § 1(part))

(A) Within ten days after the execution of the development agreement by all parties, the Planning Director shall cause the agreement to be 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 hereinabove provided, or if the county terminates or modifies the development agreement pursuant to this chapter, the Planning Director shall cause notice of the action to be recorded with the County Recorder. (1966 Code, § 6A.05-10) (Ord. 653, § 1(part))

COMPLIANCE. (A) Amendment or cancellation by mutual consent. (1) Any development agreement may be amended or canceled in whole or in part, by the mutual consent of the parties to the agreement or their successors in interest. Any party can initiate the amendment or cancellation of a development agreement. The procedure for an amendment or cancellation shall be the same as the procedures for approval. The findings required for amendment or cancellation shall be the findings specified in § 19.11.008(B) or in any applicable county regulations in effect at the time the ordinance authorizing the amendment or cancellation is adopted. A review of a requested amendment shall be limited to consideration of those elements proposed to be added or changed, or of any elements affected by such changes. (2) The issuance of any land use approval permit which requires a change in any vested element of the development

agreement shall require an amendment to the development agreement for the change to be vested. The Director of Planning shall make the determination as to whether an amendment is necessary. (B) Modification or termination because of non- compliance. (1) Developer default. Failure or unreasonable delay by the developer to perform any term or provision of the development agreement shall constitute a material breach (default) of the development agreement. Except in cases where the developer’s breach of the development agreement presents a threat of imminent harm to the public, the Planning Director shall give the developer not less than 30 days notice of default in writing specifying the nature of the alleged default and the manner in which the default may be satisfactorily cured. A developer shall within the 30-day period cure the default or provide evidence providing that the developer in fact was never in default. If, within the 30-day period, the developer either does not cure the default or does not provide sufficient evidence to prove that the developer was never in default, it shall be irrefutably presumed that the developer was, and remains, in default. After the expiration of the 30-day period, in the event developer remains in default, the county, at its option, may institute legal proceedings for specific performance or for other injunctive or declatory relief to enforce the agreement. As an alternative to this default procedure, the county may hold a compliance review pursuant to this chapter. (2) County default. (a) In the event the county defaults under the terms of the development agreement as to the developer, the developer shall not be obligated to proceed with or complete the improvements required under the development agreement, or any phase thereof, nor shall resulting delays in the developer’s performance constitute grounds for termination or cancellation of the development agreement. (b) However, the developer may not suspend the developer’s obligations as specified herein until 30 days after developer notifies Planning Director in writing of county’s default, the nature thereof and of developer’s intent to suspend developer’s obligation. Within the 30-day period, county may comply with its obligations or may demonstrate that it never failed to comply with the development agreement. (c) Alternatively, the developer, at the developer’s option, may institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement. However, the developer shall not file any legal proceedings with a court or other tribunal until the developer applies with the Planning Commission for a determination of county’s default. The developer shall have the burden of proving the county’s default before the Planning Commission which shall conduct a public hearing before making a determination. (1966 Code, § 6A.05-11) (Ord. 653, § 1(part))

(A) The Director of Planning shall set a public hearing before the Planning Commission to review a developer’s compliance with the development agreement on an annual basis and at any other time that the Director determines that there are reasonable grounds to believe that the developer may be in default under the agreement. (B) Upon not less than 30 days’ written notice by the Director of Planning, the developer shall provide such information and documents as may be deemed by the Director as reasonably necessary to ascertain compliance with the development agreement. (C) At any compliance hearing, the developer shall be given the opportunity to be heard orally or in writing regarding performance under the agreement. The developer shall have the burden of providing compliance at the public hearing before the Planning Commission. (D) If the Planning Commission finds the developer to be in full compliance with all terms and conditions of the agreement, it shall adopt a written resolution certifying compliance with the development agreement through the applicable period of review. The developer may cause the resolution to be recorded with the County Recorder. (E) If the Planning Commission finds that good faith compliance with all terms and conditions of the agreement has not been demonstrated, the Commission shall refer the matter along with its recommendation to the Board of Supervisors. (F) If the Planning Commission refers the matter, to the Board, the Board of Supervisors shall conduct a public hearing on compliance at its first available agenda after the referral. The Board shall hear the matter de novo, meaning that the Board shall base its decision on the record generated by the Planning Commission proceedings and based upon any new evidence presented in connection with the public hearings before the Board. The developer shall bear the burden of proving compliance at the public hearing before the Board. (G) If the Board of Supervisors finds and determines, on the basis of substantial evidence, that the developer has not demonstrated compliance with all terms and conditions of the agreement, the Board may terminate or modify the agreement. (1966 Code, § 6A.05-12) (Ord. 653, § 1(part))

(A) Change in state or federal law. No development agreement shall preclude the application to the subject property of changes in county laws, regulations, plans or policies, the terms of which are specifically mandated and required by

changes in valid state or federal law or regulations. In the event of state or federal laws or regulations enacted after the development agreement has been executed or of the actions, of any governmental agency, other than the county, prevent or preclude compliance with one or more provisions of this agreement or require changes in plans, maps or permits approved by county, the development agreement shall be modified, extended or suspended as may be necessary to comply with the state or federal laws or regulations or the actions of such other governmental jurisdictions. (B) Forms. The Planning Director shall prepare and adopt such application forms, checklists and other documents as the Planning Director considers necessary and desirable to implement this chapter. (C) Reserved approvals. (1) Nothing herein shall be construed to limit the authority or obligation of the county to hold necessary public hearings or to limit the discretion of the county or any of its officers with regards to rules, regulations, ordinances, laws and entitlements of use which require the exercise of discretion by the county or any of the county’s officers, provided that subsequent discretionary actions shall not be in conflict with those elements vested in the development agreement. (2) Nothing herein to the contrary, all applications for approvals, permits and entitlements shall be subject to the development and processing fees and taxes which are in force and effect at the time the application therefor is filed. (3) Nothing herein shall be construed to limit the authority of the county to adopt and apply codes, ordinances or regulations which have the legal effect of protecting persons or property from dangerous conditions which create a substantial physical risk. This division is not intended to limit the intensity of the development or the use of the subject property contrary to the development agreement, but rather to protect and recognize the authority of the county to deal with dangerous circumstances not adequately addressed at the time of the adoption of the development agreement. (1966 Code, § 6A.05-13) (Ord. 653, § 1(part))

Any decision of the Planning Director can be appealed within ten days of that decision by application of the developer made to the Planning Commission. Any decision of the Planning Commission, except for a determination of developer compliance, can be appealed within ten days of that decision by application of any interested party made to the Board. All appeals shall be de novo, meaning that the decision on appeal shall be based on the entire record established prior to the appeal hearing as well as upon any new evidence presented for the appeal. The appellate body may deny the appeal, sustain the appeal, or modify the decision which was the basis for the appeal. The appellate body may remand the matter to the entity which made the original decision to take appropriate action consistent with the decision of the appellate body on appeal. The decision of the appellate body shall be made by written resolution, which shall also specify the error committed by the entity making the original decision. The Board may, from time to time, specify a fee to cover the county’s costs of processing and reviewing any appeals. (1966 Code, § 6A.05-14) (Ord. 653, § 1(part))