Chapter 8. Regulations Establishing Procedures and Requirements for Consideration of Development Agreements Under Government Code Sections 65864 through 65869.5

Article 1. Applications

Sec. 10-8.101 Authority for Adoption.

These regulations are adopted under the authority of Government Code Sections 65864 through 65869.5. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.102 Forms and Information.

(a) The Planning Director shall prescribe the form for each application, notice and documents provided for or required under these regulations for the preparation and implementation of development agreements.

(b) The Planning Director may require an applicant to submit such information and supporting data as the Planning Director considers necessary to process the application. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.103 Fees.

The Hercules City Council may by separate resolution fix the schedule of fees and charges imposed for the filing and processing of each application and document provided for or required under these regulations. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.104 Qualification as an Applicant.

Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has legal or equitable interest in the subject real property or who is an authorized agent of same. The Planning Director may require an applicant to submit proof of his interest in the real property or of his agency. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.105 Proposed Form of Agreement.

Each application shall be accompanied by the form of development agreement proposed by the applicant. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.106 Review of Application.

The Planning Director shall endorse on the application the date it is received and shall review the application and may reject it if it is incomplete or inaccurate for processing. If the Planning Director finds that the application is complete, it shall be accepted for filing. The Director shall review the application and deter mine the additional requirements necessary to complete the agreement. (Ord. 198 § 1 (part), 1985)

Article 2. Notices and Hearing

Sec. 10-8.201 Duty to Give Notice.

The Planning Director shall give notice of intention to consider adoption of development agreement and of am other public hearing required by law or these rules. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.202 Requirements for Form and Time of Notice of Intention to Consider Adoption of Development Agreement.

(a) Form of Notice. The form of the notice of intention to consider adoption of development agreement shall contain

(1) The time and place of the hearing

(2) A general explanation of the matter to be considered including a genera description of the area affected; and

(3) Other information required b: specific provision of these regulations o which the Planning Director consider necessary or desirable.

(b) Time and Manner of Notice. The time and manner of giving notice is:

(1) Publication or Posting. Publication at least once in a newspaper of general circulation, circulated in Hercules or if there is none, posting in at least three (3) public places in Hercules.

(2) Mailing. Mailing of the notice to all persons shown on the last equalized assessment roll as owning real property within three hundred (300) feet of the property which is the subject of the proposed development agreement. If the number of owners to whom notice is to be mailed is greater than one thousand (1,000), the Planning Director may as an alternative provide notice in the manner set forth in Section 65854.5(b) of the Government Code.

(c) Additional Notice. The Planning Commission or the City Council, as the case may be, may direct that notice of the public hearing to be held before it shall be given in a manner that exceeds the notice requirements prescribed by state law. If state law prescribes a different notice requirement, notice shall be given in that manner. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.203 Failure to Receive Notice.

The failure of any person entitled to notice required by law or these regulations does not affect the authority of the Hercules City Council to enter into a development agreement. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.204 Rules Governing Conduct of Hearing.

The public hearing shall be conducted as nearly as may be in accordance with the procedural standards adopted under Government Code Section 65804 for the conduct of zoning hearings. Each person interested in the matter shall be given an opportunity to be heard. The applicant has the burden of proof at the public hearing on the proposed development agreement. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.205 Irregularity in Proceedings.

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, 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 presumption that error is prejudicial or that injury was done if error is shown. (Ord. 198 § 1 (part), 1985)

Article 3. Standards of Review, Findings and Decisions

Sec. 10-8.301 Determination by Planning Commission.

After the hearing by the Planning Commission, the Planning Commission shall make its recommendation in writing to the Hercules City Council. The recommendation shall include the Planning Commission’s determination whether or not the development agreement proposed:

(a) Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific 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.

(e) Will adversely affect the orderly development of property or the preservation of property values. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.302 Decision by Hercules City Council.

(a) After the Hercules City Council completes the public hearing, it may accept, modify or disapprove the recommendation of the Planning Commission. The Planning Commission shall be notified by the Planning Director of any action taken by Council which modifies or disapproves Planning Commission recommendations. It may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred back to it by the Hercules City Council.

(b) The Hercules City Council may not approve the development agreement unless it finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.303 Approval of Development Agreement.

If the Hercules City Council approves the development agreement, it shall do so by the adoption of an ordinance which includes authorization for execution of the development agreement by the Mayor.

After the ordinance approving the development agreement takes effect, Hercules may enter into the agreement. (Ord. 198 § 1 (part). 1985)

Article 4. Amendment and Cancellation of Agreement by Mutual Consent

Sec. 10-8.401 Initiation of Amendment or Cancellation.

Either party may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.402 Procedure.

The procedure for proposing and adoption of an amendment to or cancellation in whole or in part of the development agreement is the same as the procedure for entering into an agreement in the first instance. (Articles 1 through 3.)

However, where Hercules initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least thirty (30) days in advance of the giving of notice of intention to consider the amendment or cancellation required by Section 10-8.202. (Ord. 198 § 1 (part), 1985)

Article 5. Recordation

Sec. 10-8.501 Recordation of Development Agreement, Amendment or Cancellation.

(a) Within ten (10) days after Hercules enters into 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 provided in Government Code Section 65868, or if Hercules terminates or modifies the agreement as provided in Government Code Section 6585.1 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. 198 § 1 (part), 1985)

Article 6. Periodic Review

Sec. 10-8.601 Time for and Initiation of Review.

Hercules shall review the development agreement every twelve months from the date the agreement is entered into.

The time for review may be modified either by agreement between the parties or by the affirmative vote of a majority of the Hercules City Council. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.602 Notice of Periodic Review.

The Planning Director shall begin the review proceeding by giving notice that Hercules intends to undertake a periodic review of the development agreement to the property owner. The Planning Director shall give the notice at least ten (10) days in advance of the time at which the matter will be considered by the Hercules City Council. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.603 Public Hearing.

The Hercules City Council shall conduct a public hearing at which the property owner must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the property owner. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.604 Findings Upon Public Hearing.

The Hercules City Council shall determine upon the basis of substantial evidence whether or not the property owner has, for the period under review, complied in good faith with the terms and conditions of the agreement. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.605 Procedure Upon Findings.

(a) If the Hercules City Council finds and determines on the basis of substantial evidence that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, the review for that period is concluded.

(b) If the Hercules City Council finds and determines on the basis of substantial evidence that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the Hercules City Council may modify or terminate the agreement. (Ord. 198 § 1 (part), 1985)

Article 7. Modification or Termination

Sec. 10-8.701 Proceedings Upon Modification or Termination.

If, upon a finding cinder Section 108.605(b), the Hercules City Council determines to proceed with modification or termination of the agreement, the Hercules City Council shall give notice to the property owner of its intention so to do. The notice shall contain:

(a) The time and place of the hearing.

(b) A statement as to whether or not the Hercules City Council proposes to terminate or to modify the development agreement.

(c) Other information which the Hercules City Council considers necessary to inform the property owner of the nature of the proceeding. (Ord. 198 § 1 (part), 1985)

Sec. 10-8.702 Hearing on Modification or Termination.

At the time and place set for the hearing on modification or termination, the property owner shall be given an opportunity to be heard. The Hercules City Council may refer the matter back to the Planning Commission for further proceedings or for report and recommendation. The Hercules City Council may impose those conditions to the action it takes as it considers necessary to protect the interests of the City. The decision of the Hercules City Council is final. (Ord. 198 § 1 (part), 1985)