Chapter 13 — DEVELOPMENT AGREEMENTS — San Diego County Zoning Code

SEC. 81.1301. PURPOSE.

The purpose of this chapter is to establish procedures to consider and approve development agreements authorized by Government Code sections 65864 through 65869.5. These development agreements are intended to provide certainty to a developer proposing a long-term development project, to protect against changes in local law during the life of the project while at the same time having the developer provide public benefits in exchange for the certainty granted to the developer.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1302. APPLICATION FOR DEVELOPMENT AGREEMENT.

(a) A person who is actively processing a development project may file an application for a development agreement without having to follow the threshold procedure in this chapter and may process the development agreement concurrently with the development project. As used in this section, “actively processing” means that the applicant is processing a development project, the applicant is complying with all deadlines and submission dates the County has imposed and the applicant is up to date on payment of all deposits and fees to County departments. A person who is processing a development project, but who is not current on payments to the County or is not complying with County deadlines or submission dates shall not be allowed to apply for a development agreement until the project is in full compliance with County requirements.

(b) A person who has a development project the County has previously approved shall follow the threshold procedure in this chapter before submitting an application for a development agreement. (Added by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1303. THRESHOLD PROCEDURE.

A person required to follow the requirements of this section before filing an application for a development agreement shall submit a request for a threshold decision to the Director on a form provided by the Director and comply with the following procedure:

(a) The request for a threshold decision shall include explanatory text, plans, maps, photographs and other documents sufficient to describe the proposed development agreement, the rights that would accrue to the developer if the proposal is approved and the benefits to the public from the approval. The Director may request additional material the Director deems necessary to evaluate the request.

(b) After the Director determines that the applicant has provided sufficient information to allow the Director to evaluate the proposed development agreement the Director shall review the submittal and prepare a preliminary written report and recommendation. The report shall include all of the following:

(1) A description of the project.
(2) Whether or not clear potential benefits would be likely to accrue to the public.
(3) The Director's preliminary recommendation whether or not the County should proceed to enter into the development agreement negotiation process and the reasons for the Director's recommendation.

(c) The Director shall submit the preliminary report to the applicable community sponsor group or community planning group, to any public agency that may be affected by the proposal and to the initiator of the proposal. A

recipient of the report may comment in writing to the Director within 30 days of receipt of the report.

(d) At the end of the comment period, the Director shall make a recommendation to Planning Commission on whether the proposal should be accepted for the purpose of filing an application for a development agreement. The Director shall also provide a copy of the recommendation to the applicable sponsor group or planning group, to any public agency that may be affected by the proposal and to the initiator of the proposal.

(e) The Planning Commission, after considering the merits of the request and the Director's recommendation, shall submit its recommendation to the Board of Supervisors (Board).

(f) The Board, after considering the merits of the request, may authorize the initiator to file an application for a development agreement for the proposal or direct staff to terminate proceedings.

(g) By authorizing the initiator to file an application for a development agreement the Board is not making a commitment to approve a development agreement.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1304. CONTENTS OF APPLICATION.

An applicant for a development agreement shall submit an application on a form the Director provides. The application shall contain, at a minimum, all the following information:

(a) The name and address of the applicant and of all persons having a legal or equitable interest in all or part of the property proposed to be used.

(b) Evidence that the applicant has a legal or equitable interest in the property involved or has written authorization to submit an application from a person who has a legal or equitable interest in the property.

(c) A legal description for each parcel, a list of the Assessor's parcel numbers for each parcel and a statement of total area of the property.

(d) The public benefits the applicant proposes to provide to the County in exchange for the development rights requested.

(e) Explanatory text, plans, maps, drawings, photographs and other similar materials that describe the applicant's proposal. The Director may require the applicant to supplement the submission under this subsection to the extent the Director determines more information is required to allow the Director to evaluate the applicant's proposal.

(f) The name, address and telephone number of the person who the applicant has designated to represent all persons having a legal or equitable interest in the entire property proposed to be subject to the development agreement. The Director may waive the filing of one or more of the above items where the same information required is on file with the County and the information is current.

(Amended by Ord. No. 9075 (N.S.), effective 9-10-99; amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1305. TERMS AND CONDITIONS OF DEVELOPMENT AGREEMENT.

A development agreement entered into between the County and a developer shall, in addition to the mandatory terms required by Government Code section 65865.2, include all the following terms and conditions:

(a) The County will conduct an annual review of the progress of the applicant's or the applicant's successor in interest in complying with the terms of the development agreement. The burden shall be on the applicant or the applicant's successor to show good faith compliance with the terms of the agreement. If the County finds and determines that the applicant or the applicant's successor is not in substantial compliance on the basis of a substantial compliance standard, the agreement shall provide that the County may terminate or modify the agreement.

(b) The applicant or the applicant's successor in interest shall designate an agent to represent the property owners for all property subject to the development agreement. The agent shall serve as the person to whom the County may

serve all notices, including legal process. If at any time there is no person serving as the property owner's agent, the County may terminate the agreement.

(c) The applicant or the applicant's successor in interest shall: (1) defend, indemnify and hold harmless the County, its agents, officers and employees from any claim, action or proceeding against the County, its agents, officers or employees to attack, set aside, void or annul the decision to enter into the development agreement or any of the proceedings, acts or determinations taken, done or made prior to that decision, and (2) reimburse the County, its agents, officers or employees for any court costs and attorney's fees which the County, its agents, officers or employees may be required by a court to pay as a result of the approval of the agreement. At its sole discretion, the County may participate at its own expense in the defense of any such action, but the participation shall not relieve the applicant or the applicant's successor of any obligation imposed by this condition. The County shall promptly notify the applicant or the applicant's successor of any claim or action and cooperate fully in the defense.

(d) Before naming a successor, the applicant shall provide the County with 30 days written notice. If the Director determines that the proposed successor is not a commercially or financially suitable successor in interest, the Director may reject the proposed successor and give the applicant the option of choosing a new successor or terminating the agreement.

(Amended by Ord. No. 7782 (N.S.), effective 8-24-90; amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1306. ADDITIONAL TERMS AND CONDITIONS.

A development agreement may also include terms, conditions, restrictions and requirements for subsequent discretionary actions in addition to those provided in section 81.1305, provided that the terms, conditions, restrictions and requirements do not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1307. REVIEW OF APPLICATION.

The Director shall review the development agreement application for completeness, shall determine any additional requirements necessary and may reject any application that does not present the required documentation. On receipt of a complete and acceptable application the Director shall accept it for processing and prepare a staff report and recommendation.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1308. NOTICE OF HEARING BEFORE THE PLANNING COMMISSION.

(a) The Director shall set a date for a public hearing before the Planning Commission and give notice of the time, place and purpose of the hearing as provided in Government Code sections 65090 and 65091, in addition to any other notice as may be required by law for other matters to be considered concurrently with the development agreement. (b) Failure of any person to receive notice that the person is entitled to receive as provided by law shall not affect the County's authority to enter into a development agreement.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1309. PLANNING COMMISSION RECOMMENDATION.

(a) At the conclusion of the public hearing the Planning Commission shall make a recommendation to the Board that the Board: (1) approve the development agreement as proposed, (2) approve the development agreement with modifications proposed by the Planning Commission or (3) reject the development agreement.

(b) The Planning Commission's action shall be by resolution and shall include written findings specifying the facts and information the Commission relied on in rendering its recommendation. The Planning Commission shall only recommend approval of a development agreement if it makes all the following findings:

(1) That the proposal is consistent with the County General Plan or General Plan amendment the applicant proposes, and any applicable specific plan.

(2) That the proposal is compatible with the Zoning Ordinance and the zoning for the property or a rezoning the applicant proposes for the property.

(3) That if the proposed development agreement includes a subdivision the proposed agreement provides that any tentative map prepared for the subdivision shall comply with Government Code section 66473.7.

(4) That the proposal will not be detrimental to the health, safety and general welfare of the public.
(5) That the proposal is in the public interest and accrues a clear public benefit to the County.

(c) A copy of the Planning Commission's resolution shall be filed with the Clerk of the Board and with the Director. (Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1310. PLANNING COMMISSION RECOMMENDATION TO REJECT DEVELOPMENT AGREEMENT.

If the Planning Commission resolution recommends rejection of the proposed development agreement no further action shall be taken on the application unless within ten days of the Planning Commission hearing the applicant files a request with the Clerk of the Board that the Board consider the matter. If the applicant files the request the item shall be placed on the Board's agenda for a public hearing.

(Amended by Ord. No. 10037 (N.S.), effective 3-26-10)

SEC. 81.1311. BOARD OF SUPERVISORS HEARING.

(a) If the Clerk of the Board receives a resolution from the Planning Commission recommending approval of the development agreement, with or without modification or the applicant requests Board consideration of the matter the Clerk of the Board shall set the matter for a public hearing before the Board, giving notice of the time, place and purpose of such hearing as provided in section 81.1309(a).

(b) The Board shall consider the proposed development agreement at the public hearing on the date set for the hearing or on the date or dates to which the hearing may be continued from time to time by the Board. The Board may take any of the following actions:

(1) Approve the development agreement.
(2) Approve the development agreement with modifications.
(3) Reject the development agreement.

(d) If the Board approves the development agreement the Board shall approve the agreement by ordinance. After the ordinance approving the development agreement takes effect, the Director may execute the agreement with the applicant.

(e) Within ten days after the Board rejects a proposed development agreement the Clerk of the Board shall give notice of the Board's action to the applicant at the address shown on the application and to the Planning Commission through the Director.

(f) Within ten days following complete execution of a development agreement, the Clerk of the Board shall record a fully executed copy of the development agreement including a legal description of the land subject to the agreement and a copy of the approved ordinance. The agreement shall be binding on the parties and their successor in interest, and the benefits of the agreement shall inure to the parties and their successors in interest. (Amended by Ord. No. 10037 (N.S.), effective 3-26-10; amended by Ord. No. 10705 (N.S.), effective 1-8-21)