Sierra County Municipal Code Ch. 25.05 Development Agreements

These regulations are adopted pursuant to the authority of Cal. Gov’t Code § 65864 et seq., and the terms used in these sections are consistent with the same terms used in Cal. Gov’t. Code § 65864, et seq. Development agreements are created entirely at the discretion of Sierra County. The county has no obligation to enter such agreements unless to do so would provide a benefit to the county, as determined by the Board of Supervisors. (Formerly 25.01)

The purpose of this title is to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs of development by enabling the county and an applicant to enter into a development agreement which vests certain development rights. The resulting reduction of uncertainty in the development review process will promote long-term stability in the Sierra county land use planning process and will thereby result in significant benefits to the citizens of the county. Development agreements also: (1) set forth the obligations of both the county and the applicant for the time period specified in the agreement; and (2) set forth the regulations to which the development will be subject, except where amendments are made pursuant to the provisions of SCC 25.05.080. (Formerly 25.02)

Development agreements may also be, but are not required to be, adopted in conjunction with the processing of specific plans, tentative maps and/or other land use applications. (Formerly 25.03)

A. Qualification of Applicant. Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person or other entity who has legal or equitable interest in the real property that is the subject of the land use permit application or other application for development pursuant to this code, and a proposed development agreement. An authorized agent may be a qualified applicant. Applicants may be required by the Planning Director to submit proof of their legal or equitable interest in the real property, and to agents, proof of their authority to act on behalf of the applicant.

B. Application Form and Content. An application for the approval of a development agreement shall include the forms provided by the Planning Department, any filing fee required by the most current Planning Department fee schedule, and any additional information required by the Planning Director deemed necessary to properly evaluate the application.

C. Agreement Preparation. The agreement shall be prepared by the County Counsel. Unless determined otherwise by the County Counsel, the agreement shall be prepared to include the following: draft development agreement. The draft development agreement and any attachments or exhibits shall be prepared in a manner suitable for recordation by the County Recorder, and shall include the following:

1. Parties to the Agreement. All parties to the development agreement shall be listed within the first paragraph of the agreement. A statement specifically explaining the contracting party’s interest in the real property of the development project shall also be included, which may be in a separate section from the initial listing of parties. Other descriptive information may also be required to clearly and accurately identify the parties to the agreement. If a purpose statement describing the reasons for the nature of the agreement is included, the listing of parties to the agreement may follow the purpose statement.

2. Relationship of Parties. A clear description of the relationship of all parties to the development agreement, including the following:

a. Addresses of all parties to which written notices, demands, correspondence and communications are to be directed.

b. A statement specifying any changes in the relationship of the parties which may occur as a result of the real property that is the site of the development project being included in another governmental jurisdiction, such as through annexation into an incorporated city.

3. Recitals. A section that refers to concurrent or prior governmental actions taken on the development project itself or other governmental actions that materially affect the development agreement for that project (see Cal. Gov’t. Code §§ 65867 and 65867.5). Actions taken pursuant to the California Environmental Quality Act (CEQA) shall also be mentioned in this section of the development agreement.

4. Definitions. All terms used in a context other than normal, daily usage shall be clearly defined. Any term unique or special to the proposed development project shall be clearly defined for purposes of the agreement.

5. List of Exhibits. Any document, map, plan, form, display, photographs, etc., necessary for the review and approval of the project shall be listed as an exhibit to the development agreement or incorporated by reference to prior approvals that are part of the agreement. At a minimum, the exhibits presented as a part of the development agreement shall be:

a. A legal description of the real property for which the development agreement is proposed.

b. A map of the development project.

c. Approval documents of all prior governmental approvals for the development project.

6. Assignability. A statement specifying the assignability of responsibilities, obligations and benefits under the agreement, consistent with the following:

a. The responsibilities, obligations and benefits of the agreement may only be assigned after notification of all other parties to the agreement.

b. Successors in interest to property governed by an agreement shall be notified of the provisions of the agreement. The successors in interest shall notify the county of their receipt of such notice.

7. Duration of the Agreement. The term of the development agreement shall be specified, along with any provisions for extension or modification of the term.

8. Restrictions on Uses of the Property. Any restriction, limitation or other modification of uses on the real property that is the subject of the development agreement and which is not otherwise controlled by applicable governmental regulations shall be specified in the agreement. Such restrictions may include, but are not limited to:

a. Permitted or prohibited uses;

b. Density and/or intensity of uses;

c. Maximum height of building and other structures;

d. Maximum size of buildings and other structures;

e. Reservations and dedications of land for common or public purposes; and

f. Special setbacks or other construction standards.

9. Subsequent Discretionary Actions. The development agreement may include conditions, terms, restrictions and requirements for subsequent discretionary actions and shall provide that any such conditions, terms, restrictions and requirements for subsequent actions, if included, shall not prevent development of the land for the uses and the density or intensity of development set forth in the agreement.

a. The agreement shall also indicate the duty of the developer/applicant to obtain further approvals if any are required.

b. The agreement shall contain provisions for cooperation by the parties to the agreement in gaining further approvals and interacting with other agencies.

10. Effect of Regulations or Standards Adopted after Agreement.

a. With regard to the real property that is the subject of the development agreement, the county rules, regulations, ordinances, laws, general and specific plans, and official policies governing development, density, permitted uses, growth management, design criteria, construction standards and environmental considerations shall be those in force and effect upon the commencement of the term of the agreement unless otherwise provided in the agreement.

b. Unless specifically provided for in the agreement, the county will thereafter, during the term of the agreement, apply to the subject development project only such newer, modified rules, regulations, laws, ordinances, design criteria, construction standards and environmental considerations that are not in conflict with those in effect on the date of commencement of the development agreement.

c. The provisions of subsections (C)(10)(a) and (C)(10)(b) of this section shall not preclude the application to a development project of those changes in county rules, regulations, laws, ordinances or policies specifically mandated and required by changes in state or federal laws or regulations. In the event that such changes in state or federal laws prevent or preclude compliance with one or more provisions of the development agreement, the parties shall take action to amend the agreement pursuant to SCC 25.05.080.

11. Periodic Review. Provisions for periodic review as required by SCC 25.05.070.

12. Amendment, Termination, and/or Recordation. Provisions for the amendment, cancellation, modification, termination, suspension and/or recordation of the agreement pursuant to SCC 25.05.080.

13. Enforcement and Remedies. Provisions for enforcement of the agreement by all parties involved, and legal remedies available to parties injured by the lack of performance of the other parties to the agreement.

14. Attorneys’ Fees and Costs.

a. At a minimum, the development agreement shall provide for recovery of attorneys’ fees and costs of enforcement by the county, in the event that legal action or other enforcement proceeding is undertaken by the county pursuant to these regulations.

b. The agreement shall also provide a reimbursement schedule for county staff time spent processing, reviewing and implementing the provisions of the agreement. This reimbursement schedule shall contain prevailing wage rates of appropriate staff members at the time the agreement is executed. The wage rate shall include the costs to the county of employee benefits, overhead and other appropriate associated costs.

15. Summary of Rights and Benefits. Summary of special rights granted to the land owner and special benefits being afforded to the public as a result of the agreement.

16. Improvement Security/Insurance. Where required by the county as a condition of the development project’s approval, provisions requiring appropriate and reasonable improvement security pursuant to Cal. Gov’t. Code § 66499, et seq. The county may also require evidence of compliance with labor standards and insurance required as a standard condition under federal, state or local law at the time of county action on any necessary development permits or any other entitlements for use of the development project real property that is the subject of the development agreement.

17. Miscellaneous Terms and Conditions. All terms, conditions, requirements and provisions of the development project’s permit approvals shall be included in the development agreement. Additional terms, conditions, requirements and provisions not a part of the project permit approvals may be included in the development agreement with the mutual consent of all parties to the agreement.

18. Map of Development Project. A map of the proposed development project shall be provided which is sufficient to meet the submittal requirements for the project associated with the development agreement and is adequate to clearly inform the public, the hearing bodies and the county staff about the scope and nature of the project proposal. The adequacy of the map shall be determined by the Planning Director. (Formerly 25.04)

A. Application Filing. The application and materials required by SCC 25.05.040 shall be submitted to the Planning Department. The development agreement application may be filed concurrently with other development applications that may be appropriate for the project in question.

B. Preliminary Acceptance. The development agreement application shall be reviewed for completeness. After acceptance of the application, the Planning Director shall forward the application, copies of all supporting documents, and a written report for submittal to the County Counsel for document preparation. (Formerly 25.05)

A. Planning Commission Hearing. Consideration of the development agreement draft document(s) shall be scheduled at the next available Planning Commission meeting following receipt of the Planning Director’s written report by the Commission Secretary.

1. Public Notice. Notice of the hearing shall be provided as required by SCC 20.05.110 which is consistent with the requirements of Cal. Gov’t. Code §§ 65854, 65854.5, 65856, 65867. If state law changes to prescribe different notice requirements, legal notice for the consideration of proposed development agreements shall be given in that manner.

2. Conduct of Hearing. The public hearing shall be conducted as provided by SCC 20.05.120.

3. Recommendation to Board. After the hearing, the Planning Commission shall report its recommendation in writing to the Board of Supervisors. The report shall include the reasons for the recommendation, and findings as to whether the proposed development agreement:

a. Is consistent with the objectives, policies, general land uses and programs specified in the general plan;

b. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located;

c. Is in conformity with public convenience, general welfare and good land use practice;

d. Will be detrimental to the health safety and general welfare of persons residing in the county; and

e. Will adversely affect the orderly development of property or the preservation of property value.

B. Board of Supervisors Hearing and Decision. The Board of Supervisors shall conduct a public hearing on a proposed development agreement with the same public notice and in the same manner as provided for the Planning Commission. After the Board of Supervisors completes the public hearing, it may accept, modify, or disapprove the recommendation of the Planning Commission. It may, but shall not be required to, refer matters not previously considered by the Planning Commission during its hearing back to the Commission for report and recommendation. The Commission may, but need not, hold a public hearing on matters referred back to it by the Board of Supervisors. The Board shall not approve the proposed development agreement unless it finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan; provided, that nothing in this section shall be construed to mean that the Board of Supervisors must approve a development agreement even if the stated findings are made.

C. Reserved.

D. Approval of the Development Agreement. If the Board of Supervisors approves the proposed development agreement, it shall do so by the adoption of an ordinance supported by the findings as required in subsection (B) of this section. The agreement shall take effect 30 days after passage of the ordinance, unless a longer period of time is specified.

E. Recordation. Within 10 days after the county enters into the development agreement, the county shall have the agreement recorded with the Sierra County Recorder. If the parties to the agreement, or their successors in interest, amend or cancel the agreement as provided in SCC 25.05.080 (Cal. Gov’t. Code § 65868 incorporated by reference), or if the county terminates or modifies the agreement as provided in Cal. Gov’t. Code § 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the county shall have notice of such action recorded with the County Recorder.

F. Court Review. No action, inaction or recommendation regarding the proposed development agreement shall be held void or invalid or 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 whatsoever 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 no presumption that error is prejudicial or that injury was done if error is shown. (Formerly 25.06)

Unless a longer period is permitted by statute, the county shall review the development agreement at least once during each 12-month period from the date the agreement was entered into, as provided by this section.

A. Review Body. Unless otherwise specified in the development agreement, periodic review of a development agreement shall be conducted by the Planning Commission.

B. Notice of Periodic Review. The Planning Director shall begin the review proceeding by giving notice to the developer that the county intends to undertake a periodic review of the development agreement. Notice shall be given at least 10 days in advance of the time at which the matter will be considered by the Planning Commission.

C. Public Hearing. The Planning Commission shall conduct a public hearing at which the developer must demonstrate good faith compliance with the terms of the agreement. The burden of proof in such matters is upon the developer. The hearing need not be advertised as provided in SCC 25.05.060(B); however, hearings on periodic review of development agreements shall be included in the regular agenda of the hearing body considering the periodic review.

D. Determination by Hearing Body. The hearing body shall determine upon the basis of substantial evidence whether or not the developer has, for the period under review, complied in good faith with the terms and conditions of the agreement.

1. If the county finds and determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the agreement during the period under review, a written report stating such shall be issued, terminating that review period.

2. If the county finds and determines on the basis of substantial evidence that the developer has not complied in good faith with the terms and conditions of the agreement during the period under review, the county may modify or cancel the agreement pursuant to SCC 25.05.080.

3. The developer may appeal a determination pursuant to subsection (D)(2) of this section to the Planning Commission and/or Board of Supervisors in accordance with the procedures outlined in SCC 20.05.130. (Formerly 25.07)

The amendment or cancellation of a development agreement by the mutual consent of the parties, or the modification or termination of a development agreement by the county shall occur as required by this section.

A. Action by Mutual Consent. Any party to a development agreement may propose an amendment to or cancellation in whole or in part of the development agreement.

1. The procedure for proposing an amendment to or a cancellation, in whole or in part, of the agreement is the same as the procedure set forth in SCC 25.05.040 through 25.05.060.

2. Where the county initiates the proposed amendment to or cancellation in whole or in part of the agreement, it shall first give notice to the property owner or authorized agent of its intention to initiate such proceedings at least 30 days before giving notice as required by SCC 25.05.060.

B. Modification or Cancellation for Cause. The county may modify or cancel a development agreement as provided by this subsection, if the periodic review process specified in SCC 25.05.070 results in a determination pursuant to SCC 25.05.070(D)(2) that the developer has not complied with the agreement.

1. Notice of Intention to Modify or Cancel. The county shall give notice to the developer of its intention to hold a hearing not less than 30 days before the hearing. The notice shall contain the information required by SCC 20.05.110, and the following:

a. A statement as to whether or not the county proposes to cancel or modify the agreement; and

b. Any other information that the Planning Director considers necessary to inform the developer of the nature of the proceeding.

2. Conduct of Hearing. At the time and place set for the hearing on modification or cancellation, the developer shall be given an opportunity to be heard. If the hearing is conducted before the Board of Supervisors on appeal, the Board may refer the matter back to the Planning Commission for further proceedings or for report and recommendation. The Board of Supervisors may impose those conditions to the action it takes as it considers necessary to protect the interests of the county. The decision of the Board is final. (Ord. 902, eff. 7/6/00. Formerly 25.08)