Chapter 9-814 — Development Agreements

This Chapter establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects, as provided for in State law.

In order to be considered for a Development Agreement, a project must be consistent with the General Plan and any applicable Master Plan, Special Purpose Plan, Specific Plan, or Planned Development zone, unless the applicant has submitted an application for any necessary amendments to the General Plan, Master Plan, Special Purpose Plan, Specific Plan, or Planned Development zone.

(a)

The Director, in consultation with the County Administrator, will negotiate the specific components and provisions of the Development Agreement on behalf of the County for recommendation to the Board of Supervisors.

(b)

The Board of Supervisors has the exclusive authority to approve a Development Agreement.

An applicant for a development project may request that the County review a Development Agreement application in accordance with the following procedures. The County incorporates by reference the provisions of Government Code Sections 65864-65869.5. In the event of any conflict between these statutory provisions and this section, State law controls.

(a)

Application Requirements. An applicant must submit an application for a Development Agreement on a form prescribed by the Director, accompanied by the required fees. The Director must identify submittal requirements for applications for Development Agreements and may require an applicant to submit such additional information and supporting data as considered necessary for environmental review and to process the application. In addition to any other information that the Director requires, each application for a Development Agreement must be accompanied by the general terms and conditions of the agreement proposed by the applicant and must include the contents required in subsection (b) below.

(b)

Contents of Development Agreements.

(1)

Required Contents. A Development Agreement must specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It must contain provisions concerning its transferability.

(2)

Improvements and Fees. A Development Agreement may include requirements for construction and maintenance of on-site and off-site improvements or payment of fees in lieu of such dedications or improvements.

(3)

Conditions. A Development Agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.

(4)

Environmental Mitigation. A Development Agreement may include, without limitation, conditions and restrictions imposed by the County with respect to the project, including those conditions, restrictions and mitigation measures proposed in any Mitigated Negative Declaration or Final Environmental Impact Report applicable to the project that eliminate or mitigate adverse environmental impacts of the project.

(5)

Phasing. A Development Agreement may provide that the project be constructed in specified phases, that construction be commenced within a specified time, and that the project or any phase thereof be completed within a specified time.

(6)

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

(7)

Indemnity. A Development Agreement must contain an indemnity clause requiring the applicant to indemnify and hold the County harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

(8)

Performance Obligation Fees. A Development Agreement may include provisions to guarantee performance of obligations stated in the agreement.

(c)

Initial Review of Application. The Director will review each application to determine whether it is complete. If the application is found to be incomplete, the Director will reject the application and inform the applicant of the items necessary to properly complete the application. If the application is complete, the Director will determine whether an environmental review is required for the project, in compliance with applicable State and local requirements.

(d)

Negotiations. The Director must negotiate the specific components and provisions of the Development Agreement on behalf of the County for recommendation to the Board of Supervisors.

(e)

Recommendation by Director. The Director must make his/her recommendation in writing to the Board of Supervisors. The recommendation must include the Director's determination and supporting reasoning whether or not the proposed Development Agreement satisfies the findings specified in Section 9-814.060, Findings Required.

The review procedure for a Development Agreement shall include a Public Hearing before the Board of Supervisors with notice as set forth in Chapter 9-802, Common Procedures, with the following additional requirements:

(a)

Notice of Intent. The Director must publish a notice of intent to consider adoption of a Development Agreement as provided in Section 65090 and 65091 of the Government Code.

(b)

Signed Agreement Required. The Applicant must execute a proposed Development Agreement before it is placed before the County Council for consideration at a public hearing.

(c)

Decision by Board of Supervisors. Final action on the Development Agreement shall be taken by the Board of Supervisors at a Public Hearing.

Prior to approving a Development Agreement, the Board of Supervisors shall find that all of the following are true:

(a)

Consistency. The provisions of the Development Agreement are consistent with the General Plan and any applicable Master Plan, Public Financing Plan, Special Purpose Plan, and Specific Plan for the area; and

(b)

Development Title. The proposed development complies with all provisions of this Title.

No later than 10 days after the final approval of a Development Agreement, the Clerk of the Board shall record with the County Recorder a copy of the agreement, which shall describe the land subject thereto.

(a)

Frequency of Review. The Director shall cause the Development Agreement to be reviewed annually on the anniversary date of its adoption. A more frequent review may be undertaken at the direction of the Board of Supervisors.

(b)

Finding of Compliance. If the Director, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the Development Agreement, the Director will issue a finding of compliance,

which will be in recordable form and may be recorded with the County Clerk-Recorder's Office after the conclusion of the review.

(c)

Finding of Non-compliance. If the Director finds the applicant has not complied with the provisions of the Development Agreement, the Director may issue a finding of noncompliance that may be recorded by the County Clerk-Recorder's Office. The Director must specify in writing to the applicant the respects in which the applicant has failed to comply and must set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. If applicant does not comply with any terms of compliance within the prescribed time limits, the Development Agreement will be subject to termination or modification pursuant to this Chapter.

(d)

Termination or Modification. If the County finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with the terms or conditions of the agreement, the County may terminate or modify the Agreement.

(1)

Action to terminate or modify the Agreement may be initiated only by the Board of Supervisors; and

(2)

No action to terminate or modify the Agreement shall be taken without a Public Hearing Review noticed and conducted pursuant to Chapter 9-802, Common Procedures.

(e)

Payment of Periodic Review. The cost of the annual review of the Development Agreement shall be paid for by the party (or the party's successor in interest) who entered into the Development Agreement with the County. The payment shall cover the actual cost to the County of conducting said annual review, including employee salaries and benefits, overhead, and materials.

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. An Agreement shall be amended or canceled using the same process as was used for its adoption.

(a)

Recordation. If the parties to the Agreement or their successors in interest amend or cancel the Development Agreement, or if the County terminates or modifies the Development Agreement for failure of the applicant to fully comply with the provisions of the Development Agreement, the Clerk of the Board will record notice of such action with the County Clerk-Recorder's Office.

(b)

Rights of the Parties after Cancellation or Termination. In the event that a Development Agreement is cancelled or terminated, all rights of the applicant, property owner, or successors in interest under the Development Agreement will be terminated. If a Development Agreement is terminated following a finding of noncompliance, the County may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the County.

(a)

Existing Rules and Regulations. Unless otherwise specified in the Development Agreement, the County's rules, regulations and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those County rules, regulations and official policies in force on the effective date of the Development Agreement. The applicant will not be exempt from otherwise applicable County ordinances or regulations pertaining to persons contracting with the County.

(b)

Future Rules and Regulations. A Development Agreement must not prevent the County, in subsequent actions applicable to the property, from applying new rules, regulations and policies that do not conflict with those rules, regulations and policies applicable to the property as set forth in the Development Agreement. A Development Agreement will not prevent the County 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. Unless otherwise specified in the Development Agreement, a Development Agreement will not exempt the applicant from obtaining future discretionary land use approvals.

(c)

State and Federal Rules and Regulations. In the event that any regulation or law of the State of California or the United States, enacted or interpreted 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 regulation or law.

(d)

Police Powers. When conditions or actions constitute a threat to the public health and safety, the Development Agreement does not restrict the County's police powers from taking action up to and including involuntary abatement.

The procedures for enforcement, amendment, modification, cancellation or termination of a Development Agreement specified in this section and in Government Code Section 65865.4 or any successor statute, are non-exclusive. A Development Agreement may be enforced, amended, modified, cancelled or terminated by any manner otherwise provided by law or by the provisions of the Development Agreement.

Chapter 9-815 - Enforcement