Shafter Zoning Code § 2.70 Development Agreements (CA)

Development agreements may be entered into and implemented by the City pursuant to the following procedures:

Purpose
- a. The Legislature of the State of California adopted Section 65864 et. seq. of the Government Code, authorizing local governments to enter into development agreements with applicants for development projects. Under appropriate circumstances, development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services and

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the allocation of costs therefore in order to achieve the maximum utilization of public and private resources in the development process, and assure, to the extent feasible, that appropriate measures to enhance and protect the environment of the City are achieved.

b. The objective of such an agreement is to provide assurances that, upon approval of the project, the applicant may proceed with the project in accord with existing policies, rules and regulations, subject to the conditions of approval, thus vesting certain development rights in the property. Development agreements will also ensure that all conditions of approval, including the construction of off-site improvements made necessary by such land developments, will proceed in an orderly and economical fashion to the benefit of the City. The purpose of this Chapter is to establish procedures and requirements for consideration of development agreements by the City consistent with State law.

Application Requirements and Forms
- a. An applicant may propose that the City consider entering into a development agreement pursuant to Article 2.5, Title 7 of the California Government Code commencing with Section 65864, by filing an application with the Planning Department and demonstrate that the project satisfies the eligibility requirements of this Section. The form of said application shall be provided by the Planning Director.
- b. Applicant

An application may be filed only by the property owner or other person having a legal or equitable interest in the property that is the subject of the development agreement or by that person’s authorized agent. The term “applicant” shall also include any successor in interest to the property owner, or successor in interest to any other person having a legal or equitable interest in the property.

c. Eligibility Requirements

The City Council finds that it may be in the City’s best interest to enter into a development agreement when construction of the project will be phased over a several year period, is a large-scale development, shall occupy substantial acreage, or in some other way requires long-term certainty on the part of the developer and the City. The City Council reserves the sole right to determine whether a development agreement is appropriate and in the best interest of the City for a specific development project.

Proposed Development Agreement
- a. Each application shall be accompanied by a proposed development agreement, which shall specify the duration of the agreement, the permitted uses of the property, the density and intensity of use, the

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maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes.

b. A proposed development agreement may include conditions, terms, restrictions and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions and requirements for subsequent discretionary actions shall not unreasonably prevent development of the land for the uses and to the density or intensity of the development set forth in the agreement. A proposed development agreement may also provide that construction shall be commenced within a specified time, and that the project or any phases thereof be completed within a specified time.
c. A program and standards for periodic review of the development agreement shall be included.
d. Appropriate provisions, acceptable to the City Attorney, providing security for the performance of the developer under the development agreement.
e. 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 review prepared under the California Environmental Quality Act. 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.
f. 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 the developer by the City.
g. All development agreements, or any part of such development agreements, may be subject to subsequent condemnation proceedings by the City.
h. A proposed agreement may include such additional conditions, terms, restrictions or requirements as determined by the Planning Commission and City Council to be in the public interest.

Parties to the Development Agreement

a. Only a qualified applicant may file an application to enter into a development agreement with the City, The Planning Director may require an applicant to submit proof of his interest in the real property and of the authority of the agent to act for the applicant. Such proof may include a preliminary title report issued by a title company licensed to do business in the State of California evidencing the requisite interest of the applicant in the real property. Before processing an

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application, the Planning Director may obtain the opinion of the City Attorney as to the sufficiency of the applicant’s interest in the real property to enter into a 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 a development agreement pursuant to the provisions of the Joint Exercise of Powers Act (Government Code 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.

Review of Application
- a. The Planning Director shall endorse the application on the date it is received. The application shall be reviewed and may be rejected it if it is incomplete or inaccurate. If the application is complete, it will be accepted for filing. The Planning Director shall review the application and determine any additional requirements necessary to complete the agreement form. After receiving the required information, a staff report and recommendation shall be prepared which will state whether or not the development agreement, as proposed or in an amended form (specifying the nature of the amendments), would be consistent with the General Plan and any applicable Specific Plan, and with the provisions contained herein, and whether it meets the needs and requirements of the City.
- b. The Planning Director shall, as part of his review of the application, circulate copies of a proposed development agreement to those City departments and other agencies having jurisdiction over the development project to be undertaken pursuant to the development agreement, tor review and comment by such City agencies. The proposed development agreement shall be reviewed for legal sufficiency and a proposed ordinance authorizing the City to enter into the development agreement, for action by the City Council upon hearing thereof as specified herein shall be prepared. The staff report and recommendation of the Planning Director shall include any appropriate recommendations received by other agencies.
- c. The Planning Director shall, at the applicant’s expense and in accord with City procedures for implementation of the California Environmental Quality Act, undertake environmental review and, upon completion of such review, transmit the application, together with a recommendation thereon, to the Planning Commission.

d. Upon receipt of the application, the results of the environmental review, and the recommendations of the Planning Director, the Planning Commission shall schedule a public hearing. Notice of intention to consider the application shall be given as provided in Sections 65090

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and 65091 of the California Government Code and as provided for in Section 2.150 of this Title. In addition, if the application is being processed together with the development project, notice of such intention shall be given as required for consideration of the development project.

Review Standard

The Planning Commission may recommend use of a development agreement as a method of implementing or providing standards and criteria for any development approval including:

(1) A development approval pursuant to this Title;
(2) An amendment to the General Plan;
(3) The formation of an assessment district, benefit district; maintenance district, special benefit district, or any other mechanism for the installation of required on-site and/or offsite improvements; and/or
(4) Mitigation measures imposed upon a development project after approval of an environmental impact report or mitigated negative declaration in which such mitigation measures have been proposed as a mechanism for eliminating or reducing environmental impacts.
f. Recommendation of Planning Commission

Following the public hearing, the Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission’s determination as to whether or not the proposed development agreement meets the following criteria:

(1) It is consistent with the objectives, policies general land uses, and programs specified in the General Plan and any applicable Specific Plan;
(2) It is compatible with the uses authorized in, and the regulations prescribed for the zone district in which the real property is or will be located;
(3) It is in conformity with and will promote public convenience, general welfare and good land use practice;
(4) It will not be detrimental to the health, safety and general welfare;
(5) It will not adversely affect the orderly development of property or the preservation of property values; and

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(6) It will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty.

6. Hearing by City Council

a. Adoption by Ordinance

A development agreement is a legislative act, and shall be enacted by ordinance only after a public hearing before the City Council is held pursuant to the procedures described herein. The ordinance shall refer to and incorporate by reference the text of the development agreement.

b.

Conduct of Hearing

At the hearing, the City Council shall consider the Planning Commission’s recommendation, together with any additional public testimony, and may approve, disapprove, or modify any recommendation of the Planning Commission. If public testimony is presented on an issue that was not considered by the Planning Commission, the City Council may refer the issue back to the Planning Commission for further hearings and recommendations.

Consistency with the General Plan, and any Specific or Policy Plans

Before the City Council may approve a development agreement, it must find that its provisions are consistent with the General Plan and any applicable specific plans or policy plans of the City. If the City Council approves a development agreement in the form recommended by the Planning Commission, without further findings, it shall be deemed to have also adopted the findings of the Planning Commission.

d. Execution of a Development Agreement

If the City Council adopts an ordinance approving a development agreement, the parties thereto shall execute the development agreement within thirty (30) calendar days after adoption of the ordinance, provided, however, that the development agreement shall not become effective until the ordinance authorizing the development agreement also becomes effective. The time for executing the agreement may be extended by the mutual consent of the City Council and the applicant.

e.

Recordation

Within ten (10) calendar days after the City enters into a development agreement, the City Clerk shall have the agreement recorded with the Kern County Recorder as required in Government Code Section 65868.5. If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Government Code Section 65868, or if the City determines or modifies the agreement as

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provided in Government Code Section 65865.1 for failure of the applicant to materially comply in good faith with the terms or conditions in the agreement, the City Clerk shall have notice of such action recorded with the Kern County Recorder.

7. Periodic Review

a. The City shall periodically review a development agreement at least once every 12 months after the City enters into a development agreement.
b. Not less than forty-five (45) nor more than sixty (60) calendar days prior to the yearly anniversary of the date a development agreement was entered into, the applicant shall submit evidence to the Planning Director of the applicant’s good faith compliance with the development agreement. Said notification shall be accompanied by a processing fee in such amount as may hereinafter be established by resolution of the City Council.
c.

Finding of Compliance

If the Planning Director finds good faith compliance by the developer with the terms of a development agreement, a certificate of compliance shall be issued, 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 Planning Director 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.

d. Finding of Noncompliance

If, based on substantial evidence, the Planning Director finds the developer has not complied in good faith with the terms of a development agreement, the respects in which the developer has failed to comply shall be specified in writing. The Planning Director shall also specify a reasonable time for the developer to meet the terms of compliance. In such areas of noncompliance are not corrected within the reasonable time limits as prescribed by the Planning Director, the development agreement shall be subject to cancellation pursuant to provisions herein.

e.

Appeal of Determination

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 a finding of noncompliance by the Planning Director within ten days after giving notice of such determination. All appeals before the City Council shall be conducted pursuant to the provisions of Section 2.180

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of this Chapter at which time evidence shall be taken and findings thereon made.

f.
Referral to the Planning Commission

The Planning Director may refer any review to be conducted hereunder to the Planning Commission. Such referral shall be made together with a staff report of the Planning Director’s preliminary findings. Upon such referral, the Planning Commission shall conduct a noticed public hearing to determine the good faith compliance by the developer with the terms of the development agreement in accordance with the provisions contained herein, and shall direct the issuance of a certificate of compliance upon a finding of good faith compliance, or make the determination of noncompliance on the basis of substantial evidence. Any such decision by the Planning Commission shall be subject to appeal to the City Council in the same manner as any other such decision.

Cancellation or Modification
- a. Cancellation or Modification by Mutual Consent

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 section for approval of a development agreement.

b. If, at any time during the term of a development agreement, the Planning Director or the Planning Commission 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 corrected, the Planning Director or the Planning Commission 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 of substantial evidence of compliance by the developer is upon the developer. If such compliance cannot be shown, the City Council shall either commence proceedings to cancel the development agreement or recommend new terms and conditions intended to remedy the noncompliance.
c. The City Council shall conduct a noticed hearing, upon the recommendations of the Planning Director or the Planning Commission, at which time the developer and any other interested persons 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

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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 interest of the City. The decision of the City Council shall be final.

d. 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 interests 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 and occupying a building or other improvements authorized pursuant to a valid building permit previously approved by the City or under construction at the time or 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, “construction” means work under a valid building permit, and “completing” means 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. “Completion” means completion except for interior improvements such as partitions, duct and electrical runouts, floor coverings, wall coverings, lighting, furniture, trade fixtures, finished ceilings and other improvements typically constructed by or for tenants of similar buildings. At such time uses shall, to the extent possible, be deemed non-conforming uses, and shall be subject to the non-conforming use provisions of this Title.

Miscellaneous Provisions
- a. All development agreements shall be subject to the regulation and requirements of the laws of the State of California; the Constitution of the United States; any codes, statutes, or executive mandates; and any court decision, State or Federal, thereunder. In the event that any such law, code, statue, 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, 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.
- b. A development agreement entails and consists of a separate procedure from other land use planning procedures and shall not take the place of this Title, the General Plan, a conditional use permit, subdivision approval, building permit, or any other City development

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procedures. If so specified in a development agreement, it shall constitute an approval pursuant to such planning procedures as if separately enacted under other provisions of this Title or other City ordinances; to the extent practicable, public hearings on a proposed development agreement shall be held concurrent with the public hearings on all related land use approvals, and all such approvals shall be made concurrent with the approval of the development agreement.

c. When approved, a development agreement and any development control maps and all notations, references and regulations that are a part of the development agreement shall be part of the Development Agreement Ordinance. 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.
d. This Section and any subsequent development agreement with respect to any development agreement enacted under this Section, any provision of such a development agreement that is in conflict with this Title shall be void. Unless otherwise provided by the development agreement, the City’s rules, regulations and official policies governing permitted uses of 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 provided, however, that the developer is subject to all increases in City imposed fees, dedication requirements, and charges with respect to subsequent applications for development and construction within the property subject to a development agreement.