Chapter 17.53 DEVELOPMENT AGREEMENT REGULATIONS FOR CONSIDERATION

A. The Department of Development Services 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 Department of Development Services may require an applicant to submit such information and supporting data as the Director considers necessary to process the application. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.012 Applications – Fees.

The City Council shall 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. 177 § 1 (Exh. A), 1985)

17.53.013 Applications – Qualification as an applicant.

Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person(s) who has the entire legal interest in the real property or a person(s) who has the entire equitable interest in the real property and is joined by the legal interest holder in the application. The Director of Development Services shall require an applicant to show proof of interest in the real property in the form of a title report by a California Title Insurance Company and proof of the authority of the agent, if any, to act for the applicant. Before processing the application, the Director of Development Services shall obtain the opinion of the City Attorney as to the sufficiency of the applicant’s interest in the real property to enter into the agreement. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.014 Applications – Proposed form of agreement.

Each application shall be accompanied by the City’s standard form of development agreement and including any specific proposals for changes in or additions to the language of the standard form by the applicant. (Ord. 177 § 1 (Exh. A), 1985)

17.53.015 Applications – Review of application.

The Director of Development Services shall endorse on the application the date it is received. The Director shall review the application and may reject it if it is incomplete or inaccurate for processing within 30 calendar days of the date it is received. If the Director finds that the application is complete it shall be accepted for filing. The Director shall review the application and determine the additional requirements necessary to complete processing of the agreement. After receiving the required information, staff shall prepare a staff report and recommendation to the City Council stating whether or not the agreement as proposed or in an amended form would be consistent with ordinances and policies of the City of Poway, the general plan and any applicable specific plan or planned community. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.020 Notice and hearing – Duty to give notice.

The Director of Development Services shall give notice of intention to consider adoption of development agreement and of any other public hearing required by law or this chapter. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.021 Notice and hearing – 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 general description of the area affected; and

3. Other information required by specific provision of these regulations or which the Director of Development Services considers necessary or desirable.

B. Time and Manner of Notice. The time and manner of giving notice is by:

1. Publication or Posting. Publication at least once in a newspaper of general circulation, published and circulated in the City of Poway.

2. Mailing. Mailing of the notice to all persons shown on the last equalized assessment roll as owning real property within 500 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 1,000, the Director of Development Services may as an alternative provide notice in the manner set forth in Sections 65090 through 65095 of the Government Code, 1985 Edition.

C. Additional Notice. The City Council 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.

D. Declaration of Existing Law. The notice requirements referred to in subsections (a) and (b) are declaratory of existing law (Government Code Section 65867 and Sections 65854, 65854.5 and 65856 as incorporated by reference). If State law prescribes a different notice requirement, notice shall be given in that manner. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.022 Notice and hearing – 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 City to enter into a development agreement. (Ord. 177 § 1 (Exh. A), 1985)

17.53.023 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. 177 § 1 (Exh. A), 1985)

17.53.024 Notice and hearing – 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, 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 presumption that error is prejudicial or that injury was done if error is shown. (Ord. 177 § 1 (Exh. A), 1985)

17.53.030 Standards of review, findings and decisions – Decision by City Council.

After the City Council completes the public hearing, it 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 and finds that the development agreement:

A. Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan or planned community;

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. The development will not be detrimental to the health, safety and general welfare;

E. The development will not adversely affect the orderly development of property or the preservation of property valued. (Ord. 177 § 1 (Exh. A), 1985)

17.53.031 Standards of review, findings and decisions – Approval of development agreement.

If the City Council approves the development agreement, it shall do so by adoption of an ordinance, or by resolution if authorized by State law.

After the ordinance or resolution approving the development agreement takes effect, the City may enter into the agreement. (Ord. 177 § 1 (Exh. A), 1985)

17.53.040 Amendment and cancellation of agreement by mutual consent – 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. 177 § 1 (Exh. A), 1985)

17.53.041 Amendment and cancellation of agreement by mutual consent – 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.

However, where the City 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 30 calendar days in advance of the giving of notice of intention to consider the amendment or cancellation required by PMC 17.53.021. (Ord. 177 § 1 (Exh. A), 1985)

17.53.050 Recordation of development agreement amendment or cancellation.

A. Within 10 calendar days after the City 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 the City terminates or modifies the agreement as provided in Government Code Section 65865.1 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. 177 § 1 (Exh. A), 1985)

17.53.060 Periodic review – Time for and initiation of review.

The City shall review the development agreement every 12 months from the date the agreement is entered into. The time for review may be modified either by agreement between the parties or by initiation in one or more of the following ways:

A. Recommendation of the City staff;

B. Affirmative vote of at least three members of the City Council. (Ord. 177 § 1 (Exh. A), 1985)

17.53.061 Periodic review – Notice of periodic review.

The Director of Development Services shall begin the review proceeding by giving notice that the City intends to undertake a periodic review of the development agreement to the property owner. The Director of Development Services shall give the notice at least 10 calendar days in advance of the time at which the matter will be considered by the City Council. (Ord. 518, 1999; Ord. 177 § 1 (Exh. A), 1985)

17.53.062 Periodic review – Public hearing.

The 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. 177 § 1 (Exh. A), 1985)

17.53.063 Periodic review – Findings upon public hearing.

The 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. 177 § 1 (Exh. A), 1985)

17.53.064 Periodic review – Procedure upon findings.

A. It the City 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 City 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 City may modify or terminate the agreement. (Ord. 177 § 1 (Exh. A), 1985)

17.53.070 Modification or termination – Proceedings upon modification or termination.

If, upon a finding under PMC 17.53.064(B), the City determines to proceed with modification or termination of the agreement, the City shall give notice to the property owner of its intention to do so. The notice shall contain:

1. The time and place of the hearing;

2. A statement as to whether or not the City proposes to terminate or to modify the development agreement;

3. Other information which the City considers necessary to inform the property owner of the nature of the proceeding. (Ord. 177 § 1 (Exh. A), 1985)

17.53.071 Modification or termination – 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 City Council may impose those conditions to the action it takes as it considers necessary to protect the interests of the City. The City Council may modify, amend or terminate the development agreement if the applicant has not complied in good faith with the terms of the agreement or upon any other grounds authorized by State law. The decision of the City Council is final. (Ord. 177 § 1 (Exh. A), 1985)