Chapter 17.43 — 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. Such agreements provide a greater degree of certainty than the normal permit approval process by granting assurance that an applicant may proceed with development in accord with policies, rules, and regulations in effect at the time of the approval subject to conditions to promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved. (Ord. 19-1 § 3)

• A. The City incorporates by reference the provisions of Government Code Sections 65864 through 65869.5 . In the event of any conflict between those statutory provisions and this chapter, the statutes shall control.

• B. A development agreement may be considered for a proposed development that will require a developer to make a substantial investment at the early stages of the project for planning and engineering for the entire project and for public facilities and services.

• (Ord. 19-1 § 3)

• A. The Director shall negotiate the specific components and provisions of the Development Agreement on behalf of the City for Planning Commission review and recommendation to the City Council. The Director may request input from other affected departments as needed.

• B. The Planning Commission shall act as the advisory body and review the Development Agreement to provide recommendation to the City Council.

• C. The City Council shall act as the Review Authority, and after receiving recommendations from the Planning Commission, may adopt, reject, or modify a Development Agreement based on consideration of the requirements of this chapter.

• (Ord. 19-1 § 3)

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

• A. Application Requirements. Applications for Development Agreements shall be filed with the Community Development Department in accordance with the provisions set forth in Section 17.35.020 , Application Forms and Fees. In addition to any other application requirements, the application for a Development Agreement shall include data or other evidence in support of the applicable findings required by Section 17.43.070 , Required Findings.

• B. Contents of Development Agreements.

  1. Required Contents. A Development Agreement shall 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 shall contain provisions concerning its transferability (assignment).

  2. Additional Contents. Development Agreements may also include the following:

     • a. Improvements and Fees. A Development Agreement may include requirements for construction and maintenance of onsite and offsite improvements or payment of fees in lieu of such dedications or improvements.

     • b. 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.

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

  • d. 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.

  • e. Indemnity. A Development Agreement may contain an indemnity clause requiring the applicant to indemnify and hold the City 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.

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

  • g. Other Items. Other components and provisions as negotiated by City.

• C. Concurrent Processing. It is the intent of this chapter that the application for a Development Agreement will be made and considered simultaneously with the review of other necessary applications, including, but not limited to, rezoning, Planned Development, and Conditional Use Permits. If combined with an application for rezoning, Planned Development, or Conditional Use Permit, the application for a Development Agreement shall be submitted with said application and shall be processed, to the maximum extent possible, jointly to avoid duplication of hearings and repetition of information. A Development Agreement is not a substitute for, nor an alternative to, any other required permit or approval, and the qualified applicant or developer must comply with all other required procedures for development approval.

• (Ord. 19-1 § 3)

• A. Notice. Public notice of hearings by the Planning Commission for a Development Agreement shall be given as specified in Section 17.35.060 , Public Notice. Notice of the hearing shall also be mailed or delivered to any other local agency expected to provide essential facilities or services to the property that is the subject of the Development Agreement.

• B. Hearing. The Planning Commission shall conduct a public hearing for making recommendations to the City Council in conformance with the provisions of Section 17.35.070 , Conduct of Public Hearings.

• C. Recommendation to Council. Following the public hearing, the Planning Commission shall make a written recommendation on the proposed Development Agreement. The Director shall transmit the Planning Commission's written recommendation and complete record of the application to the City Council.

  1. Approval. If the Planning Commission has recommended approval of the Development Agreement, the City Council is required to take final action pursuant to Section 17.43.060 , City Council Hearings and Actions.

  2. Denial. If the Planning Commission has recommended against the Development Agreement, the City Council is not required to take any further action unless an appeal is filed in accordance with Section 17.35.130 , Appeals.

• (Ord. 19-1 § 3)

• A. Applicant Execution of Agreement. A proposed Development Agreement shall be executed by the Applicant before it is placed before City Council for consideration at a public hearing.

• B. Notice. Public notice of hearings by the City Council for a Development Agreement shall be given as specified in Section 17.35.060 , Public Notice. Notice of the hearing shall also be mailed or delivered to any other local agency expected to provide essential facilities or services to the property that is the subject of the Development Agreement.

• C. Hearing. After receiving the report from the Planning Commission but no later than the time specified by Section 65943 of the Government Code, the City Council shall hold a public hearing in conformance with the provisions of Section 17.35.070 , Conduct of Public Hearings.

• D. Decision. After the City Council completes the public hearing, the City Council shall approve, modify, or deny the Development Agreement. Approval of a Development Agreement shall be by ordinance. The ordinance shall refer to and incorporate by reference the text of the Development Agreement. Matters not previously considered by the Planning Commission during its hearing may, but need not, be referred to the Planning Commission for report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred to it by the City Council.

• (Ord. 19-1 § 3)

The City Council must make the finding that a proposed Development Agreement and its provisions are consistent with the General Plan and any applicable specific plan to approve a Development Agreement. This requirement may be satisfied by a finding that the provisions of a proposed Development Agreement are consistent with proposed General Plan or specific plan provisions to be adopted concurrently with the approval of the proposed Development Agreement. (Ord. 19-1 § 3)

Within 10 days after the ordinance approving the Development Agreement takes effect, the Mayor or designee shall execute the Development Agreement on behalf of the City, and the City Clerk shall record the Development Agreement with the County Recorder. (Ord. 19-1 § 3)

The applicant shall be required to demonstrate compliance with the provisions of the Development Agreement at least once a year at which time the City Manager or designee shall review each approved Development Agreement.

• A. Finding of Compliance. If the City Manager or designee, based on substantial evidence, finds compliance by the applicant with the provisions of the Development Agreement, no action is required.

• B. Finding of Noncompliance. If the City Manager or designee finds the applicant has not complied with the provisions of the Development Agreement, the Director may issue a finding of noncompliance which may be recorded by the City with the County Recorder after it becomes final. The Director shall specify in writing to the applicant the respects in which the applicant has failed to comply and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. If the applicant does not comply with any terms of compliance within the prescribed time limits, the Development Agreement shall be subject to termination or revision pursuant to this chapter.

• C. Appeal of Determination. Within 10 days after issuance of a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.

• (Ord. 19-1 § 3)

• A. Mutual Agreement. Any development may be canceled or amended by mutual consent of the parties following compliance with the procedures specified in this section. A Development Agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and City Manager or designee.

• B. After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the City Manager or designee may refer the Development Agreement to the City Council for termination or revision. After the public hearing, the City Council may terminate the Development Agreement, modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

• C. Recordation. If the parties to the agreement or their successors in interest amend or cancel the Development Agreement, or if the City terminates or modifies the Development Agreement for failure of the applicant to fully comply with the provisions of the Development Agreement, the City Clerk shall record notice of such action with the County Recorder.

• D. Rights of the Parties After Cancellation or Termination. If a Development Agreement is cancelled or terminated, all rights of the applicant, property owner or successors in interest under the Development Agreement shall terminate. If a Development Agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return all benefits, including reservations or dedications of land, and payments of fees, received by the City.

• (Ord. 19-1 § 3)

• A. Existing Rules and Regulations. Unless otherwise specified in the Development Agreement, the City'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 City rules, regulations, and official policies in force on the effective date of the Development Agreement.

• B. Future Rules and Regulations. A Development Agreement shall not prevent the City, 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 shall not prevent the City from denying or conditionally approving any subsequent land use project or authorization for the project on the basis of such rules, regulations, and policies. Unless otherwise specified in the Development Agreement, a Development Agreement shall 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.

• (Ord. 19-1 § 3)

The procedures for enforcement, revision, cancellation, or termination of a Development Agreement specified in this chapter and in Government Code Section 65865.4 or any successor statute, are non-exclusive. A Development Agreement may be enforced, revised, cancelled or terminated by any manner otherwise provided by law or by the provisions of the Development Agreement. (Ord. 19-1 § 3)