REGULATIONS FOR DEVELOPMENT AGREEMENTS

Parts:

• 1 Application

• 2 Hearing

• 3 Compliance Review

• 4 Contents

Part 1

APPLICATION

Sections:

• 18.02.010 Authority for adoption.

• 18.02.020 Development agreement authorized.

• 18.02.030 Applications.

• 18.02.040 Fees.

• 18.02.050 Qualified applicants.

• 18.02.060 Action by director.

These regulations allowing for development agreements are adopted under the authority of California Government Code Section 65864 et seq. (Ord. 28986.)

The City of San José may, at its sole discretion, enter into a binding development agreement with any qualified applicant for the development of such property pursuant to and in accordance with these regulations.

(Ord. 28986.)

• A. All applications for development agreements shall be filed with the director of planning. The form of such application and the information and data required to be set forth thereon shall be as prescribed by the director.

• B. A separate application shall be filed for each project for which a development agreement is requested.

• (Ord. 28986.)

Each application shall be accompanied by fees as set forth in the schedule of fees established by resolution of the city council. (Ord. 28986.)

• A. Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has legal, equitable or leasehold interest in the real property which is the subject of the development agreement.

• B. If the applicant has an equitable interest in the property the owner shall join in the application or the development agreement shall be conditioned upon the close of escrow vesting fee title to the real property in the developer applicant.

• C. If the qualified applicant has a leasehold interest in the real property the term of the development agreement shall be limited to the term of the applicant's interest, including any exercised option period. The term of the development agreement shall not exceed the term of the leasehold interest unless the developer applicant acquires fee title to the real property.

• D. 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 are hereinafter referred to as "developer."

• (Ord. 28986.)

Upon acceptance of the application as complete and payment of fees, the director shall review the application and shall set a public hearing thereon before the planning commission. (Ord. 28986.)

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§ 18.02.200

Part 2

HEARING

Section:

• 18.02.210 Irregularity in proceedings.

• 18.02.220 Recommendation by planning commission.

• 18.02.230 Decision of the city council.

• 18.02.240 Ordinance approving the development agreement.

• 18.02.250 Amendment or cancellation.

• 18.02.260 Default.

• A. Notice of the intention to consider the adoption of a development agreement shall be given in accordance with this section.

• B. The notice shall contain, at least, all of the following information:

  1. The time and place of the hearing before the planning commission and the city council;

  2. The real property location; and

  3. A brief description of the project proposed to be subject to the development agreement.

• C. The notice shall be:

  1. Published at least once in a newspaper of general circulation in the city; and

  2. Mailed to all persons shown on the last equalized assessment roll as owning real property within three hundred feet of the real property which is the subject of the proposed development agreement.

• D. Such notice shall contain such additional information as the director, in the director's discretion, may determine to be appropriate.

• E. Notice of hearings shall be mailed, postage prepaid, at least ten calendar days before the date set for the hearing by the planning commission.

• F. The failure of notice upon any person entitled to notice required by law or these regulations does not affect the authority of the city to enter into a development agreement.

• (Ord. 28986.)

No action, inaction or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation or any matters of procedure whatever unless after an examination of the entire case, including the evidence, the court is of the opinion 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 not a presumption that error is prejudicial or that injury was done if error was shown.

(Ord. 28986.)

After its hearing, the planning commission shall make its recommendation on the proposed development agreement to the city council. (Ord. 28986.)

• A. After its public hearing, the city council shall determine whether or not to approve and authorize the proposed development agreement. The city council shall not approve the development agreement unless it makes all of the following findings:

  1. The proposed development is consistent with the general plan and all applicable specific or area plans; and

  2. The proposed development should be encouraged in order to meet important economic, social, environmental or planning goals of the city; and

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§ 18.02.250

3. The development agreement would facilitate the development of the subject property in the manner proposed; and

4. The proposed development meets all of the findings listed for criteria a. or b. or c. below.

   • a. i. The developer will incur unusually substantial costs in order to provide public improvements, facilities or services from which the public will benefit; and

   • ii. The developer has made commitments to a very high standard of quality and agreed to development limitations beyond that required by existing city zoning code; or

   • b. The development will make a substantial contribution to the economic development of the city in that it:

     • i. Will create new, net permanent jobs located within the city, will create substantial new, net revenues for the city, or will retain a substantial number of existing permanent jobs within the city; and

     • ii. Is located on a legal parcel of at least five acres; or

   • c. i. The development houses a point of sales office that will generate sales tax revenue for the city or will be used as a corporate headquarters by the primary user of the development; and

     • ii. Is located on a legal parcel of at least five acres or will consist of at least two hundred thousand square feet of new development; and
   5. The subject development agreement is consistent with this chapter.

• B. Even if all of the findings set forth in Subsection A. can be made, the city council, in its sole discretion, may deny the development agreement on the grounds that in its opinion the proposed agreement is not in the best interest of the public.

• C. The city council may add, modify or delete any provision of the proposed development agreement as a condition of approval.

• (Ord. 28986.)

• A. If the city council approves the development agreement, it shall do so by the adoption of an ordinance authorizing the city clerk to execute the development agreement.

• B. After the ordinance approving the development agreement takes effect, the city clerk shall execute the agreement on behalf of the city. 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 agreement as the effective date.

• C. If the property is located outside of the city, the application for a development agreement shall be acted upon by the city only if the property is in the urban service area as designated on the general plan. The agreement shall be conditioned upon the annexation of the property becoming effective. If such annexation does not become effective within one year of the ordinance approving the development agreement, the development agreement shall terminate.

• (Ord. 28986.)

• A. Any development agreement may be amended or cancelled in whole or in part, by the mutual consent of the parties to the agreement or their successors in interest. The procedure for an amendment or cancellation shall be the

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§ 18.02.250

same as the procedures for approval, except for the findings required to be made pursuant to Section 18.02.240A. above. An amendment may be granted upon a finding by the city council that an amendment is consistent either with the general plan and zoning codes in effect at the time the ordinance authorizing the agreement was adopted or at the time of any amendment. Review of an amendment shall be limited to consideration of those elements proposed to be added or changed.

• B. The issuance of any land use approval or permit which approves a change in the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, conditions, terms, restrictions and requirements relating to subsequent discretionary actions, monetary contributions by a developer or in any other vested element set forth in the development agreement, shall require an amendment to the development agreement from such change to be vested.

• C. Any change in the design elements not specified in the development agreement shall not require an amendment of the development agreement. The director of planning shall make the determination as to whether an amendment is necessary.

• (Ord. 28986.)

• A. 1. Failure or unreasonable delay by the developer to perform any term or provision of the development agreement shall constitute a default. Except in cases where the developer's breach of this agreement presents a threat of imminent harm to the public, the city manager shall give the developer not less than thirty days' notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured.

  2. After notice and expiration of the thirtyday period, the city, at its option, may

institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement.

3. As an alternative to this default procedure, the city may hold a compliance review pursuant to Part 3 of this chapter.

• B. In the event city does not accept application for, review, approve or issue necessary development permits or entitlements for use to a developer, as required by and in accordance with the terms of a development agreement or the city otherwise defaults under the terms of the development agreement as to such developer, such 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 such developer's performance constitute grounds for termination or cancellation of the development agreement. In addition, such developer may, at developer's option, institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement.

• C. Nothing herein shall limit any legal right under a cooperative agreement underlying an assessment district or similar agreement entered into between the city and the developer for the project.

• (Ord. 28986.)

• A. Within ten days after the effective date of the development agreement, the city clerk shall have the agreement recorded with the county recorder.

• B. If the parties to the agreement or their successors in interest amend or cancel the agreement as hereinabove provided, or if the city terminates or modifies the agreement for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the city clerk shall have notice of such action recorded with the county recorder.

• (Ord. 28986.)

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§ 18.02.400

Part 3

COMPLIANCE REVIEW

Sections:

• A. The director shall set a hearing for review of developer's compliance with the agreement before the planning commission on an annual basis and at any other time that director determines that there are reasonable grounds to believe that the developer may be in default under the development agreement.

• B. Upon not less than thirty 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. If the director intends to recommend that the planning commission refer the matter to the city council, the director shall so notify the developer. Such notice shall specify the actions which must be taken to cure the noncompliance. If the developer, in writing, requests time to cure the noncompliance, the planning commission hearing shall be deferred to allow a reasonable period of time for the developer to effect a cure. The reasonable period of time shall be determined by the director under the circumstances, provided however, that unless the noncompliance presents a threat of imminent harm to the public, the deferral shall not be less than thirty days.

• D. At any compliance hearing, the developer shall be given the opportunity to be heard orally or in writing regarding performance under the development agreement.

• E. If the planning commission finds the developer to be in full compliance with all terms and conditions of the development agreement, it shall adopt a resolution certifying compliance of the agreement through the ap-

plicable period of review. Said resolution may be recorded by the developer with the county recorder.

• F. If the planning commission finds that good faith compliance with all terms and conditions of the development agreement has not been demonstrated, the commission shall refer the matter along with its recommendations to the city council.

• G. If the planning commission refers the matter, the city council shall conduct a hearing on compliance at its first available agenda after such referral. The council shall hear the matter de novo.

• H. If the city council finds and determines, on the basis of substantial evidence, that the developer has not complied in good faith with all terms and conditions of the development agreement, the city council may terminate or modify the agreement.

• (Ord. 28986.)

Part 4

CONTENTS

Sections:

• A. Every development agreement shall be for a limited term of years. Such term shall be subject to amendment in accordance with the procedures set forth above for amendment.

• B. The development agreement shall specify the permitted uses of the subject property, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and/or dedication of land for public purposes.

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§ 18.02.400

• C. The development agreement may contain a requirement that construction be commenced within a specified period of time or that the project or any phase thereof be completed within a specified time or make other provisions with respect to the timing of development.

• D. The development agreement may specify the location of public improvements, requirements for landscaping and any other terms and conditions.

• E. It shall contain a hold-harmless agreement and an agreement to indemnify the city from all suits and actions arising in connection with the agreement, excepting suits and actions brought by the developer for default of this agreement by the city or arising from the sole active negligence or willful misconduct of city.

• (Ord. 28986.)

• A. The development agreement shall specify the elements of development of the subject property which are intended to vest. Elements which may be so vested include but are not limited to the permitted uses, density, and intensity of use, the maximum height, maximum size and provisions for reservation or dedication of land.

• B. Such vesting shall mean that all standards in the general plan, zoning code, and other rules, regulations, ordinances and official policies applicable to the development on the date of the adoption of the ordinance approving the development agreement remain in full force and effect and to the extent any changes in such general plan, zoning code 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 codes or other rules, ordinances, regulations or policies, adopted on a city-wide basis, are applicable to the subject property and are not in conflict with the vested ele-

ments, such general plan, zoning code or other rules, ordinances, regulations or policies shall be applicable.

• (Ord. 28986.)

Section 18.02.410 shall not preclude the application to development of the subject property of changes in city laws, regulations, plans or policies, the terms of which are specifically mandated and required by changes in state or federal laws or regulations. In the event state or federal laws or regulations enacted after the agreement have been executed or action of any governmental jurisdiction other than the city prevent or preclude compliance with one or more provisions of this agreement or require changes in plans, maps or permits approved by city, the development agreement shall be modified, extended or suspended as may be necessary to comply with such state or federal laws or regulations or the regulations of such other governmental jurisdictions.

(Ord. 28986.)

• A. Nothing herein shall be construed to limit the authority or obligation of the city to hold necessary public hearings or to limit the discretion of city or any of its officers or officials with regard to rules, regulations, ordinances, laws and entitlements of use which require the exercise of discretion by city or any of its officers or officials, provided that subsequent discretionary actions shall not be in conflict with those elements vested in the development agreement.

• B. 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.

• C. Nothing herein shall be construed to limit the authority of the city to adopt and apply codes, ordinances or regulations which have the legal

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§ 18.04.030

effect of protecting persons or property from dangerous or hazardous conditions which create a substantial physical risk. This subsection is not intended to be used for purposes of general welfare or to limit intensity of development or use but to protect and recognize the authority of the city to deal with endangerments not adequately addressed at the time of the adoption of the development agreement.

• D. Codes, ordinances, and regulations relating to construction standards or permits shall apply as of the time of grant of each applicable construction permit except to the extent that such are in conflict with a vested element. In the case of conflict, the new codes, ordinances, and regulations shall apply to new construction to the same extent as would be applicable in the case of substantial reconstruction of an existing structure.

The definitions and general provisions contained in this Chapter 18.04 cover the construction of this Title 18 unless the text otherwise requires. (Prior code § 11000; Ord. 19065.)

• A. "City council" means the council of the City of San José.

• B. "Planning" or "commission" means the planning commission of the City of San José.

• C. "Planning department" means the planning department of the City of San José.

• D. "Street" includes street, highway, avenue, boulevard, expressway, freeway, parkway, road, lane, walk, alley, viaduct, subway, tunnel, bridge, public easement and right-of-way and other 'public ways.

(Prior code §§ 11001 - 11004; Ord. 19065.)

(Ord. 28986.)

In the event a development agreement is found to be invalid in whole or in part as a result of a final determination by a court of competent jurisdiction, such finding shall not disturb, invalidate, terminate or rescind the other land-use regulations, permits or approvals related to the project or property which are the subject of such agreement. (Ord. 28986.)