Chapter 15.72 DEVELOPMENT AGREEMENTS

These regulations are adopted pursuant to Article XI, Section 7 of the California Constitution and Government Code, Section 65864 et seq. (Ord. 2021-03 § 5 (Exh. B))

15.72.020 Purpose—Limitation on applicability—Findings.

A. The purpose of this chapter is to establish the procedures and requirements mandated by Article 2.5 of Chapter 4 of the Government Code for the consideration of development agreements.

B. A development agreement for a development project that requires annexation may be approved by the city, but will not be effective until after annexation occurs.

C. The city takes notice that the Legislature, in passing the state development agreement law, found and declared that:

1. The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public;

2. Assurance to the applicant for a development project that, upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and, subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development;

3. The lack of public facilities, including, but not limited to, streets, sewerage, transportation, drinking water, school, and utility facilities, is a serious impediment to the development of new housing. Whenever possible, applicants and local governments may include provisions in agreements whereby applicants are reimbursed over time for financing public facilities. (Ord. 2021-03 § 5 (Exh. B))

15.72.030 Forms and information.

A. The city manager (or designee) shall prescribe the form for each application, notice and document provided for or required under these regulations for the preparation, review and implementation of development agreements.

B. The city manager (or designee) may require an applicant to submit such information and supporting data as the city manager (or designee) considers reasonably necessary to process the application. (Ord. 2021-03 § 5 (Exh. B))

15.72.040 Fees.

The application shall be accompanied by a deposit to be determined by the city’s master fee resolution. The cost of processing of the application shall be billed to the applicant on a time and materials basis as specified in the city’s master fee resolution. In the event this deposit proves insufficient, the city manager (or designee) may require that additional deposits be submitted. Such additional deposits shall not exceed the estimated reasonable costs of processing the application. In the event the deposits collected exceed the actual costs of processing the application, the excess amount shall be refunded upon the conclusion of proceedings. (Ord. 2021-03 § 5 (Exh. B))

15.72.050 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 real property that is the subject of the development agreement. “Applicant” includes authorized agent. The city manager (or designee) shall require an applicant to submit proof of this 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 the application, the city manager (or designee) may obtain the opinion of the city attorney as to the sufficiency of the applicant’s interest in the real property to enter into the development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.060 Proposed form of agreement.

Each application shall be accompanied by the form of development agreement proposed by the applicant. If the city manager (or designee) has approved a standard form of development agreement, this requirement shall be met by utilizing such standard form and including specific proposals for changes in or additions to the language of the standard form. (Ord. 2021-03 § 5 (Exh. B))

15.72.070 Filing of application.

A. The application for a development agreement shall be submitted in coordination with, but not necessarily at the same time as, the applications needed for other required entitlements of the project. The application must be filed in time for the request to be considered in the environmental analysis of the project. In no event shall the application be filed later than the release of the final environmental document in order to allow staff time to analyze the merits of entering into such an agreement, prior to preparation of the staff report and staff recommendation.

B. Notwithstanding subsection A of this section to the contrary, an application for a development agreement may be submitted on any project that has not received a final approval as of the date the ordinance codified in this chapter becomes effective; provided, that such application for such project has been deemed complete by the city manager (or designee) prior to such date. (Ord. 2021-03 § 5 (Exh. B))

15.72.080 Review of application.

The city manager (or designee) shall endorse on the application the date of receipt, shall review the application, and may reject it if incomplete or inaccurate. If the application is complete, the city manager (or designee) shall accept it for filing. The city manager (or designee) shall determine any additional requirements necessary to complete the development agreement on the basis of the application as filed. The city manager (or designee) shall give timely notification to the applicant that a development agreement application is incomplete. The written notice shall identify what additional information is needed, in order to complete the application. After receiving all required information, the city manager (or designee) shall prepare a report and recommendation as to whether or not the development agreement as proposed, or in amended form, is consistent with the general plan, any applicable specific plan, and the provisions of these regulations. (Ord. 2021-03 § 5 (Exh. B))

15.72.090 Contents of agreement.

A proposed development agreement shall include the following:

A. A legal description of the property subject to the development agreement;

B. The duration of the development agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes;

C. Conditions, terms, restrictions, and requirements for subsequent city discretionary actions; provided, that such conditions, terms, restrictions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the development agreement;

D. The estimated time when construction and/or any other approved activity on the property will be commenced and completed, including, if appropriate, a phasing plan;

E. Public benefits in accordance with Section 15.72.100. (Ord. 2021-03 § 5 (Exh. B))

15.72.100 Public benefits.

A. In consideration for entering into a development agreement, the city shall gain public benefits beyond those already forthcoming through conditions and mitigations on project approval.

B. Any fees required pursuant to subsection A of this section shall be adjusted during the term of the development agreement to match any adjustments of such fees by the city council.

C. A development agreement shall not exempt a project from any subsequently adopted regulatory provisions which may include the use of a fee; for example, air quality mitigation fee, except to the extent that such subsequently adopted fee fulfills the same purposes as the fees required pursuant to this section. (Ord. 2021-03 § 5 (Exh. B))

15.72.110 Term of agreement.

A. The maximum term of a development agreement shall be negotiated between the parties, and shall commence from the date of the approval of the project to which it pertains. A development agreement may, upon request of the property owner and at the sole discretion of the city council, be extended for an additional period. Any request for extension shall be noticed and processed in the same manner as an application for a development agreement.

B. Notwithstanding subsection A of this section, the city council may extend the initial term of a development agreement upon making the findings in Section 15.72.180, in support thereof.

C. At the end of the term of the development agreement, the development agreement shall terminate for all purposes except any enforcement action by the city for nonconformance with the terms of the agreement or condition of the permit, and the project that was the subject of the development agreement shall be subject to all laws, rules and regulations applicable to such projects and/or uses. (Ord. 2021-03 § 5 (Exh. B))

15.72.120 Reservation of rights.

A. Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the 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 rules, regulations, and official policies in force at the time of execution of the agreement.

B. Notwithstanding subsection A of this section, a development agreement shall not prevent the city, in subsequent actions applicable to the property that were not encompassed by the original permitted activities, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent the city from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies.

C. A development agreement shall not prevent the city from modifying or suspending the provisions of the development agreement if the city council finds that the failure of the city to do so would place residents, businesses, and/or property owners of the city in a condition dangerous to their health or safety or both.

D. A development agreement shall apply only to a project as that project is described in an environmental analysis certified, adopted or approved by the city at or before the time the city enters into the development agreement, including any portion of the project that is in substantial conformance with the project approvals, as determined by the city. A development agreement shall not apply to a project or portions of a project not encompassed by the project description in the city’s environmental analysis. (Ord. 2021-03 § 5 (Exh. B))

15.72.130 Construction codes.

A development agreement shall contain the acknowledgement of the possibility of changes in the Uniform Building, Plumbing, Mechanical, Electrical, Fire and Grading Codes, as implemented by the city, during the term of the agreement and shall provide that any amendments to these codes shall apply to the project subject to the development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.140 Parties.

All owners of all property included within a development agreement shall be considered a party to the agreement and shall be a signatory. (Ord. 2021-03 § 5 (Exh. B))

15.72.150 Duty to give notice.

The city manager (or designee) shall give public notice of intention of the planning commission to consider an application for a development agreement, and the city clerk shall give public notice of intention of the city council to consider adoption of a development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.160 Requirements for form and time of notice of intention to consider adoption of development agreement.

A. Form of Notice. The notice of intention to consider adoption of a development agreement shall contain:

1. The date, time and place of the hearing;

2. The identity of the hearing body;

3. A general explanation of the matter to be considered including a general description of the location of the real property that is the subject of the hearing; and

4. Such other information required by law or which the city manager (or designee) or clerk considers necessary or desirable.

B. Time and Manner of Notice. Notice shall be given at least ten (10) days prior to the public hearing in all the following ways:

1. Publication. Publication once in a newspaper of general circulation, published and circulated in the city.

2. Mailing. Mailing of the notice to all persons shown on the latest equalized assessment roll and any update 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 city manager (or designee) or clerk may, in lieu of mailed notice, provide notice by placing a display advertisement of at least one-eighth page in a newspaper of general circulation in the city.

3. Notification of Application. Mailing or delivery of the notice to the owner of the subject real property or the owner’s duly authorized agent, and to the project applicant.

4. Notification of Affected Local Agencies. Mailing or delivery of the notice to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the subject property, whose ability to provide those facilities and services may be significantly affected by the proposed development agreement.

C. Declaration of Existing Law. The notice requirements referred to in subsections A and B of this section are declaratory of existing law at the time of drafting of this regulation (Government Code Sections 65090, 65091 and 65867). If state law prescribes a different notice requirement, notice shall be given in that manner. The notices required by this section are in addition to any other notices required by law for other actions to be considered concurrently with the development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.170 Failure to receive notice.

The failure of any person or entity to receive notice given pursuant to these regulations shall not affect the authority of the city to enter into a development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.180 Hearing and recommendation by the city council.

All development agreements shall be considered at a public hearing before the city council. A development agreement shall not be approved unless the council finds that the provisions of the agreement are consistent with the findings listed below and consistent with this chapter. The decision of the council shall be final.

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 uses authorized in, and the regulations prescribed for, the zoning district in which the real property is or will be located;

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

D. Will not be detrimental to the health, safety and general welfare;

E. Will not adversely affect the orderly development of property or the preservation of property values;

F. Will meet the intent of Section 15.72.100(A). (Ord. 2021-03 § 5 (Exh. B))

15.72.190 Approval of development agreement.

Development agreements shall be approved by ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.200 Recordation of development agreement, amendment or cancellation.

A. Within ten (10) days after the city executes a development agreement, the city clerk shall record with the county clerk/recorder a copy of the agreement, which shall describe the land subject thereto.

B. If the parties to the development agreement or their successors in interest amend or cancel the development agreement as provided in Sections 15.72.210 and 15.72.220 and Government Code Section 65868, or if the city terminates or modifies the development agreement as provided in Sections 15.72.260 through 15.72.290 and Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the development agreement, the city clerk shall have notice of such action recorded with the county clerk/recorder.

C. From and after the time of the recordation required by this section, notice shall be imparted as provided by the recording laws of the state of California. The burdens of the development agreement shall be binding upon, and the benefits of the development agreement shall inure to, all successors in interest to the parties to the development agreement. (Ord. 2021-03 § 5 (Exh. B))

15.72.210 Amendment or cancellation by mutual consent.

Any party, or successor in interest, to a development agreement may propose an amendment or cancellation, in whole or in part, of the development agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided for in the agreement consistent with the requirements of Sections 15.72.260 through 15.72.290 and Government Code Section 65865.1. (Ord. 2021-03 § 5 (Exh. B))

15.72.220 Procedure.

The procedure for proposing and adoption of an amendment or cancellation, in whole or in part, of a development agreement shall be the same as for entering into the development agreement in the first instance. However, if the city initiates a proposed amendment or cancellation of the development agreement, it shall first give written notice by mail to the property owner of its intention to initiate such proceedings not less than thirty (30) days prior to the giving of public notice of hearing to consider the amendment or cancellation. (Ord. 2021-03 § 5 (Exh. B))

15.72.230 Periodic review.

The city manager (or designee) shall review each development agreement annually, on or before the anniversary date of the recordation of the development agreement, in order to ascertain the good faith compliance by the property owner with the terms of the development agreement. The property owner shall submit an annual monitoring report, in a form acceptable to the city manager (or designee), within thirty (30) days after written notice from the city manager (or designee). The annual monitoring report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the development agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the city council. (Ord. 2021-03 § 5 (Exh. B))

15.72.240 Special review.

The city council may order a special review of compliance with a development agreement at any time. The city manager (or designee) shall conduct such special reviews. (Ord. 2021-03 § 5 (Exh. B))

15.72.250 Review procedure.

A. During either a periodic review or a special review, the property owner shall be required to demonstrate good faith compliance with the terms of the development agreement. Periodic review of the agreement shall be specified by Government Code Section 65865.1.

B. Upon completion of a periodic review or a special review, the city manager (or designee) shall submit a report to the city council setting forth the evidence concerning good faith compliance by the property owner with the terms of the development agreement and his or her recommended finding on that issue.

C. If the staff finds on the basis of substantial evidence that the property owner has complied with the terms and conditions of the development agreement, the review shall be concluded.

D. If the council finds on the basis of substantial evidence that the property owner has not complied in good faith with the terms and conditions of the development agreement, the council may set a hearing for the purpose of modifying or terminating the development agreement as provided in Sections 15.72.260 through 15.72.290. (Ord. 2021-03 § 5 (Exh. B))

15.72.260 Proceedings upon modification or termination.

If, upon finding under Section 15.72.250(D), the city determines to proceed with modification or termination of a development agreement, the city shall give written notice to the property owner of its intention to do so. The notice shall contain:

A. The time and place of the hearing;

B. A statement as to whether or not the city proposes to terminate or to modify the development agreement; and

C. Such other information as the city considers necessary to inform the property owner of the nature of the proceeding including the grounds upon which the proceedings are based. (Ord. 2021-03 § 5 (Exh. B))

15.72.270 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 property owner shall be required to substantiate compliance with the terms and conditions of the development agreement. The burden of proof on this issue shall be on the property owner. If the council finds, based upon substantial evidence, that the property owner has not substantially complied with the terms or conditions of the agreement, the council may terminate or modify the development agreement, and impose such conditions as it deems necessary to protect the interests of the city and the public. The decision of the city council is final. (Ord. 2021-03 § 5 (Exh. B))

15.72.280 Enforcement.

Unless amended, canceled, modified, suspended or terminated pursuant to this chapter, or unless otherwise allowed by this chapter, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable or specific plan, zoning, subdivision, or building regulation adopted by the city which alters or amends the rules, regulations or policies specified in effect at the time the development agreement is executed by the city. (Ord. 2021-03 § 5 (Exh. B))

15.72.290 Appeal to party other than city.

A. Any party to a development agreement, other than the city, seeking to bring an action to enforce the development agreement pursuant to Section 15.72.280 shall first appeal all matters to be raised in the action to the city council. The appeal shall be commenced by the filing of a written statement of issues by the party appealing setting out in detail the basis for the appeal. The statement shall be filed with the city clerk and city manager (or designee). The city council shall hold a hearing on the issues raised in the statement no later than forty-five (45) days after the statement has been filed with the city clerk and city manager (or designee).

B. The city council shall make findings on all matters raised in the appeal. The party shall not commence an action to enforce the development agreement until after the city council has issued its findings. The city council shall issue its findings no later than fifteen (15) days after the hearing. (Ord. 2021-03 § 5 (Exh. B))

15.72.300 Modification or suspension by state or federal law.

In the event that state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the development agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. (Ord. 2021-03 § 5 (Exh. B))

15.72.310 Approved development agreements.

A development agreement is a legislative act which shall be approved by ordinance. (Ord. 2021-03 § 5 (Exh. B))