Chapter 17.96
STATUTORY DEVELOPMENT AGREEMENTS
Sections:
17.96.040 Required application materials.
17.96.050 Process of review and adoption of development agreement.
17.96.060 Minimum requirement for a development agreement.
17.96.010 Purpose and intent.
A. This chapter is intended to implement and be consistent with ORS 94.504 through 94.528, the Lincoln City comprehensive plan, and the Lincoln City Municipal Code.
B. The objective of this chapter is accomplished by providing procedures and standards for development agreements to be entered into between an owner/developer and the city of Lincoln City, Oregon. A development agreement provides certainty for the owner/developer obtaining development approval and thereby reduces the economic costs of development. A development agreement protects the city by memorializing the owner/developer’s voluntary agreement for the development of property, including commitments to provide needed public facilities or other project characteristics or needed amenities which are in the public interest.
C. The provisions of this chapter, in their interpretation and application, are declared to be the minimum requirements necessary to accomplish the stated intent, purposes and objectives of this chapter. Nothing in this chapter shall be interpreted as characterizing a development agreement as anything other than a discretionary, bilateral contract between the city and the owner/developer with consideration given by both parties to the contract. Under Oregon law, a development agreement is a land use decision. (Ord. 2019-30 § 1)
17.96.020 Applicability.
This chapter may be applied to all lands within the city limits of the city of Lincoln City and, when accompanied by an annexation, to other lands within the Lincoln City urban growth boundary. This chapter may only be used in development agreement qualifying future land use map (FLUM) designations identified in the Lincoln City comprehensive plan, together with the implementing zoning districts, or within qualifying “pearl” zoning districts. (Ord. 2019-30 § 1)
17.96.030 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:
“Council” means the city council of Lincoln City or council’s designee, such as a hearing officer.
“Department” means the Lincoln City planning and community development department, or successor entity designated by the council.
“Development agreement” or “agreement” means an agreement entered into between Lincoln City and an owner/developer of land, pursuant to ORS Chapter 94, the terms and conditions of this chapter, and the applicable substantive requirements of the comprehensive plan and code applicable to the development. A development agreement is typically used in conjunction with a qualifying zoning district (often with a concurrent planned unit development), and memorializes the land use decision in a binding written development agreement. A development agreement may be necessary to solve a public facility or other problem in order to facilitate approval of a development, including an annexation, which would otherwise require denial. A development agreement is a voluntary agreement; and neither the city nor the owner/developer is guaranteed maximum benefits by right.
“Planning director” or “director” means the director of the Lincoln City planning and community development department or designee. (Ord. 2019-30 § 1)
17.96.040 Required application materials.
A. A pre-application conference shall be a prerequisite to submission of a development agreement application.
B. A development agreement shall be submitted with an official application form and such associated fees as approved by council resolution.
C. No application for a development agreement shall be accepted as complete, or processed without submission of a standard form development agreement, and draft (proposed) development agreement terms with required exhibits. The contents of a development agreement shall specify the following:
1. Project components which define and detail permitted uses, residential densities, nonresidential densities and intensities and building sizes;
2. The amount and payment of system development charges and other fees imposed and agreed to in accordance with applicable provisions of the municipal code and state law, any proposed reimbursement provisions, other financial contributions by the property owner, and other fees;
3. Proposed dedications of amenities, buildings, land, common areas, proposed parks and open space land preservation or dedication;
4. Mitigation measures, development conditions and other requirements of ORS Chapter 94;
5. When appropriate, design standards such as architectural treatment, proposed setbacks, landscaping, drainage and water quality requirements or other development features;
6. Any proposals to meet workforce or affordable housing needs;
7. Proposed phasing and timetable of development;
8. Proposed build-out and vesting period for applicable standards;
9. Any other appropriate development conditions or proposed terms;
10. The application shall include draft findings of consistency with all applicable land development regulations or indicate where the regulations are proposed to be waived or modified, and the authority for such waiver or modification;
11. Dedications of land or offers to construct needed infrastructure shall be clearly identified and additional language proposing specific modifications to standards, special conditions or required dedications shall be set forth and highlighted or underlined for review purposes;
12. If a development agreement accompanies any other development application, the applications, fees and proposed findings for such concurrent applications shall accompany the development agreement. Concurrent applications are to be made at one time and not piecemeal.
D. Associated Applications.
1. Annexation. A development agreement may accompany a request for annexation. The application may be submitted with a requested land use designation, with or without a concurrent implementing zoning district. A zoning district which authorizes planned unit developments is recommended. An annexation development agreement without a concurrent zoning district will retain county zoning, if approved. Development is not authorized until a city zoning district is approved. A development agreement provides a vehicle for an applicant to contractually commit to meet public needs (e.g., public facility or housing needs) as consideration for the annexation. A development agreement may also restrict or limit use of property if needed based upon the availability of public facilities. A development agreement may not be used to provide relief from regulations unless such relief is specifically made available through use of the development agreement.
2. North Lincoln City Mixed Use FLUM. A development agreement may implement the North Lincoln City Mixed Use FLUM designation. A concept plan is required for such designation. A development agreement proposal to implement the NLMU may be submitted without a concurrent rezoning to one or more implementing PD zoning districts provided the timetable of development includes rezoning and master plan within two and four years respectively. Concept plans are typically implemented in phases with separate development agreements and planned unit developments preliminary or master plans for each discrete phase.
3. Planned Unit Development. A development agreement may accompany a planned unit development application (when the PD is proposed in a zoning district specifically authorizing development agreements). (Ord. 2019-30 § 1)
17.96.050 Process of review and adoption of development agreement.
A. Notice. Notice shall be in accordance with LCMC 17.76.020 or such greater notice provisions located in LCMC Title 16 (Subdivisions). Consideration of a development agreement that includes a proposed annexation shall also require mailed notice to the Lincoln County planning department. In addition to any other requirements, the notice shall state the time and place of the public hearing(s), and contain a brief statement of the major terms of the proposed development agreement, including a description of the area within the city or county that will be affected by the proposed development agreement [ORS 94.513(2)].
B. Planning Commission Review. If a development agreement is processed concurrently with a development application that normally receives a recommendation from the planning commission (e.g., annexation, comprehensive plan amendment, zone change, planned unit development), the planning commission shall similarly be required to hold a public hearing in accordance with notice and hearing requirements in subsection (A) of this section. The planning commission shall make a recommendation to council on the proposed development agreement and associated development approval(s). At the hearing, the planning commission shall focus on findings of consistency with the comprehensive plan, zoning code and land development regulations, including findings that modifications or waivers of regulations are properly authorized. A development agreement not accompanied by another application need only be approved by the governing body.
C. City Council Review. A development agreement requires notice and a hearing before the governing body. Notice and hearing shall be in accordance with requirements set forth in subsection (A) of this section. A development agreement cannot authorize deviations (including but not limited to uses, minimum and maximum densities, maximum gross floor area, or maximum structure height) allowed in the underlying zoning district unless such deviation is expressly authorized in the zoning code through a development agreement. The council may approve a development agreement based upon findings of consistency with the comprehensive plan and development code, consistent with LCMC 17.88.050(D), including findings that any modifications or waivers of regulations are properly authorized in the code or plan. Denial of a development agreement is the refusal to take a legislative act and is therefore not subject to appeal.
D. Ordinance Adoption. A development agreement shall be approved by ordinance in accordance with the provisions of the Lincoln City Charter [ORS 94.508(2)]. (Ord. 2019-30 § 1)
17.96.060 Minimum requirement for a development agreement.
Development agreement shall, at a minimum, include the following provisions:
A. Legal Description [ORS 94.528]. The development agreement must include a legal description of the land subject to the agreement [Exhibit A. “Legal Description”]. The legal description must be prepared by a licensed surveyor for the entire property subject to the agreement. The legal description should be submitted with the application but must be available (and certified) prior to written notice and publication for the required public hearing before council. The description shall include the total acreage of the property and will note all separately described parcels, easements, and other pertinent instruments or exceptions of record. If the property is to be conveyed in discrete phases, a boundary plat or plats is recommended.
B. Legal and Equitable Ownership [ORS 94.504(1)]. The agreement must include the names of the legal and equitable owners of subject property and be signed by the legal and equitable owners. The agreement must include an executed certification from an attorney or title company that record title to the property described in Exhibit A (Legal Description) is in the name of the person, persons, corporation or other entity entering into the agreement with the city [Exhibit B. “Certificate of Title”]. This certification should be submitted with the application, but must be on file prior to the notice of public hearing before city council.
C. Duration [ORS 94.504(2)(a)] and Timetable of Development [ORS 94.504(4)].
1. The duration of the agreement shall be specified and consistent with [Exhibit C. “Timetable of Development”]. A commencement date and completion date, including phase commencement and completion dates, shall be specified [ORS 94.504(4)]. No timetable of development shall exceed 15 years to completion [ORS 94.504(8)(a)].
2. A development agreement may specify timetables of development that are negotiated with the owner/developer and such timetables control over inconsistent provisions in the municipal code. Specifically, development agreements with the city may be up to 15 years to completion. Such agreements contemplate more lead time early in the project to obtain necessary discretionary land use approvals in accordance with the municipal code. A complete timetable of development must address the timing of all dedications and improvements and the timing of all discretionary and nondiscretionary approvals, including dates for individual or phased final plat approval(s), construction commencement, as well as phase and project completion. If the timetable of development does not otherwise specify, an implementing zoning district and PUD preliminary plan and plat approval is required within three years of approval of a development agreement. A final plan and plat are required within two years of a planned unit development preliminary plan approval, or every two years for phased projects. In the event the project has not complied with the negotiated construction commencement date (or dates for phased projects), the development shall cease to be authorized, and the agreement will be considered in breach. In the event an extension of the commencement date or completion date is sought, the amendment can be approved only if there is demonstrated compliance with all current laws and regulations, and a negotiated amendment is approved by the governing body.
D. Permitted Uses, Densities, Intensities and Maximum Building Height and Size [ORS 94.504(2)(b)(c)(d)]. The development permitted uses shall be briefly described in the body of the agreement and, if necessary, detailed in [Exhibit D. “Special Conditions”]. The requested uses shall be specified in the agreement and must be consistent with the implementing zoning district, underlying land use designation, and not adversely impact neighboring properties. The density and/or intensity of use, including property size, number of units and/or amount of square footage, residential density (gross units per acre), maximum building height and maximum size, shall be specified in the body of the agreement and, if necessary, detailed in Exhibit D.
E. Land Use and Implementing Zoning Designations. The body of the agreement shall specify the land use designation, and the implementing zoning district.
F. Public Facility Adequacy/Responsibility [ORS 94.504(2)(h)] and Funding [ORS 94.504(5) and (6)].
1. The development agreement shall include a description of public facilities (including interim facilities) that will service the development, including who shall provide such facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available prior to or concurrent with the impact of the development. Any public facilities to be designed and/or constructed by the developer or the city shall be in compliance with all applicable federal, state, county and/or city standards (depending on the service provider and the facility) to ensure the quality of the public facilities. The standards shall include, but not be limited to, guarantees of performance and quality, and project controls (including scheduling, quality controls, and quality assurances).
The assumptions of the parties regarding the adequacy of public services and the city and developer’s ability to provide services of facilities, and the impact of changed conditions, must be identified in the agreement. A development agreement may require financial assurances (e.g., bond, cash escrow agreement or letter of credit) for the construction of public facilities by the owner/developer, to ensure any required public facilities are provided pursuant to the terms of the development agreement. Capital improvement plans should be amended to recognize such secured capital improvement commitments. The agreement shall provide when, and if, developer constructed public facilities will be conveyed to the city and whether the developer will receive any SDC credit or other cost reimbursement.
2. The development agreement shall provide that all city obligations to expend moneys under the development agreement are contingent upon future appropriations as part of the local budget process. The agreement shall also provide that nothing in the agreement shall require a city to appropriate such moneys.
G. Public Facility Fees and Charges [ORS 94.504(2)(f)]. Exhibit D, “Special Conditions,” shall include a description of current fees and charges applied to development in the city. The agreement may “lock in” such fees and charges, if paid as part of the agreement (including installment payment), or may defer such payments and calculations of fees to the fees and charges in effect at a later stage of approval. Any authorized reduction, waiver, or deferral in fees must be noted in the agreement, together with the authority for the reduction, waiver or deferral.
H. Reservation or Dedication of Land [ORS 94.504(2)(e)]. The development agreement shall include a description of any reservation or dedications of land for public purposes. The agreement shall specify the timing of such dedications or reservations. A dedication of land may be deemed “commencement” by the city under ORS 94.504(4). The agreement shall provide when, and if, developer dedications or reservations of land for public purposes will be conveyed to the city and whether the developer will receive any SDC credit or other cost reimbursement for constructed improvements or dedications.
I. Future Discretionary Development Approvals [ORS 94.504(3)]. The development agreement shall set forth a description of all future discretionary development approvals required for the development, including the terms, conditions, restrictions and requirements for those discretionary approvals. The agreement shall specifically provide that all local development approvals and permits identified in this section shall be obtained at the sole cost and expense of the owner/developer and, that in the event that any such local development permits are not timely received, no further development of the property shall be authorized until such time as the city council has reviewed the matter and determined whether or not to terminate or cancel the development agreement, or to modify the development agreement in a manner consistent with the public interest.
J. Consistency with Comprehensive Plan and Development Code [ORS 94.508(1)/ORS 94.513(2)]. The development agreement shall include a finding that the development permitted or proposed in the development agreement is consistent with the applicable provisions of the Lincoln City comprehensive plan and Lincoln City Municipal Code. Detailed findings shall set forth compliance with all applicable criteria and shall note when modifications or waivers of regulations are granted and shall specify the code authority for such modification or waiver.
K. Compliance with Laws Not Identified in Development Agreement. The development agreement shall include a statement indicating that failure of the development agreement to address a particular permit, condition, term or restriction shall not relieve the owner/developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions, and that any matter or thing required to be done under existing ordinances of the city of Lincoln City shall not be otherwise amended, modified or waived unless such modification, amendment or waiver is expressly provided for in the development agreement with specific reference to the provisions so waived, modified or amended. In no event shall delay in obtaining permits from other agencies be deemed as requiring or compelling an extension of time to this agreement, nor shall such delay be interpreted as requiring an extension of time to any existing approval.
L. Breach/Remedies [ORS 94.504(2)(j)]. The development agreement shall address which violation(s) of terms and conditions trigger a material breach of the development agreement. The agreement shall specify a procedure for notice of breach with an opportunity to cure. A material breach will result in cancellation or termination of the development agreement, unless an amendment is agreed to by the parties. All costs incurred by the city for breach proceedings as a result of breach by the owner/developer shall be paid by the owner/developer. If such costs are not paid, the city is empowered to place a lien against the property in the amount of the unpaid costs.
M. Local Laws and Policies Governing the Development Agreement [ORS 94.518]. The developer receives a degree of vesting with the approval of a development agreement. That is, unless otherwise provided in the development agreement, the city of Lincoln City’s comprehensive plan, laws, zoning code, land development laws and rules governing the development of the land at the time of execution of the development agreement shall govern the development of the land for the duration of the development agreement.
Notwithstanding the above, all Lincoln City development agreements shall provide that Lincoln City may unilaterally amend the agreement to apply subsequently adopted laws to an approved development that is subject to a development agreement if the city council holds a public hearing consistent with LCMC 17.96.050 and determines based on substantial competent evidence that any one of the following circumstances exist:
1. The new laws are not in conflict with the laws governing the development agreement and do not prevent development of the land uses, intensities or densities, in the agreement;
2. The new laws are essential to the public health, safety, or welfare, and expressly state that they shall apply to a development that is subject to a development agreement;
3. The new laws are specifically anticipated and provided for in the development agreement;
4. Lincoln City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of the development agreement which require the application of the new laws; or
5. It is demonstrated that the development agreement was based on substantially inaccurate information supplied by the owner/developer.
N. Conditions Necessary to Ensure Compliance with Code and Plan. The development agreement shall include such additional conditions, terms, limitations, restrictions or other requirements determined to be necessary by the city of Lincoln City to ensure compliance with the city’s zoning and land development code and consistency with the city comprehensive plan.
O. Covenant of Unified Control. The development agreement shall include an exhibit [Exhibit “E.” “Unified Control”] requiring all the property in Exhibit “A” to be held under single (unified) ownership which property shall not be transferred, conveyed, sold or otherwise divided in any unit other than in its entirety. A proposed covenant should be submitted with the application; but not later than the notice of hearing before city council. An executed covenant shall be recorded in the public records with the executed development agreement. The covenant may provide for specified conveyances, including but not limited to the following:
1. Conveyance of fully constructed subdivision lots, if any, to individual purchasers after approval of a final plat for the applicable lot or lots when all applicable requirements contained in the agreement, including the timetable and special conditions have been met; and
2. If the development is designed and planned to be constructed in phases, conveyance of a phase if the phase has complied with the applicable requirements contained in the agreement, including the timetable and special conditions. A phase may be conveyed separately only after final plat approval (including boundary plat) for that phase; and
3. Conveyance of fully constructed recreation areas, developed common areas and facilities or common open space areas to be minimally developed or retained in an undeveloped state, to the city, or, after approval of a final plat for the applicable common area tracts, to organizations conceived and organized to own and maintain the common areas, provided there is compliance with all applicable requirements contained in the agreement; and
4. Conveyance of other portions of the subject property that will be used or maintained by governmental, environmental, charitable or other organizations or agencies for such purposes as the city of Lincoln City may deem appropriate after compliance with all applicable requirements of the agreement.
Nothing in the covenant of unified control is intended to limit the owner, or their successors or assigns, from mortgaging or encumbering the entire property or an approved phase thereof. The covenant of unified control will be recorded in the public records of Lincoln County, Oregon.
P. Development “Concept Plan.” A reduced (eight and one-half inches by 11 inches) copy of the concept plan shall be attached to the agreement as [Exhibit “F.” “Concept Plan”]. The concept plan is not a preliminary development plan implementing a planned unit development or master plan approval but a framework for the submission of such plans. The concept plan must include traffic circulation, natural areas, proposed project uses, densities, and intensities and proposed project phasing, consistent with the timetable of development.
Q. Compliance Review [ORS 94.504(2)(g)]. The development agreement shall provide for compliance review and a procedure for such review. The planning director shall review the development subject to the development agreement every two years after the execution of the agreement. The review shall be initiated by the owner/developer’s submission of a report to the planning director on the two-year anniversary of the approval. The report shall be submitted prior to the scheduled review date for the duration of the agreement. If the planning director finds and determines that the owner/developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the review for that period is concluded. If the planning director makes a preliminary finding that there has been a failure to comply with the terms of the development agreement, the development agreement shall be referred to the city council (or designee), who shall conduct a public hearing at which the owner/developer may appear and demonstrate good faith compliance with the terms of the development agreement. If the council finds and determines during the public hearing, on the basis of substantial competent evidence, that the developer has not complied in good faith with the terms and conditions of the development agreement during the period under review, the council may modify or revoke the agreement in the same manner as the agreement was approved.
R. Assignment [ORS 94.504(2)(k)]. The agreement shall provide the extent to which the agreement is capable of assignment. It is contemplated that approval of assignment between developers, builders, and their successors should not be unreasonably withheld, provided there is some demonstrated continuity in the development.
S. Annexation [ORS 94.504(2)(l)]. The agreement shall specifically address the effect, if any, on the applicability of the agreement or implementation of the agreement when the city of Lincoln City annexes all or part of the property subject to the development agreement. Compliance with city annexation standards shall be demonstrated.
T. Changes in Law [ORS 94.504(2)(i)]. The development agreement shall contain the following provision:
If federal, state or regional laws or rules are enacted after City approval of this agreement, which are applicable to and preclude either party’s compliance with the terms of this agreement, this agreement shall be modified, amended, cancelled or terminated, as is necessary, to comply with the relevant federal, state or regional laws or rules.
U. Amendment or Cancellation and Enforceability [ORS 94.504(7)]; [ORS 94.522]. The development agreement shall contain the following provision:
The terms of the Development Agreement are binding on the City and Owner/Developer for the duration of the Agreement. The Agreement is enforceable by any party to the Agreement. A Development Agreement may be amended or canceled as provided in the Agreement, or by mutual consent of the parties to the Agreement, including agreement with their successors in interest. The governing body of a city or county shall amend or cancel a Development Agreement by adoption of an ordinance declaring cancellation of the Agreement or setting forth the amendments to the Agreement.
V. Recording [ORS 94.528]. The agreement shall provide that within 10 calendar days after execution of the development agreement the city shall present the agreement for recording in the office of the county clerk. The agreement shall have a legal description of the property suitable for recording. If the development agreement is amended, canceled, modified, extended, or revoked, the city shall cause to be recorded appropriate notice of such action. A development agreement shall not be effective until it is properly recorded in the public records of Lincoln County. (Ord. 2019-30 § 1)
17.96.070 Code provisions which can be modified, altered or waived or from which a development agreement is exempt.
A. Except as authorized in this chapter, a development agreement shall be consistent with applicable development regulations. The authority to modify, alter or waive certain specified requirements in the Lincoln City zoning ordinance and associated development regulations (generally LCMC Titles 16 and 17) must be specific.
B. Comprehensive Plan. Modification of comprehensive plan goals and provisions is strictly prohibited.
C. Development Standards. A development agreement may adjust, waive or modify terms and conditions where such modification, waiver or adjustment is specifically identified in the subject municipal code; or in the following sections:
1. A timetable of development is a negotiated term of a development agreement and is bounded by ORS Chapter 94 and this chapter. Other timetables in the municipal code shall apply if not addressed, but anything inconsistent in the development agreement will control over the code timetable.
2. Permitted uses, setbacks, building heights, and the like, when specified as negotiable in the implementing zoning district, are negotiated terms of a development agreement. Unless otherwise specified in the development agreement, any approved development standards that differ from those in the code shall not require any further rezone, variance or other approval apart from the statutory development agreement approval. Subsequent discretionary approvals shall treat such matters as finally decided. The development agreement, including any revised development standards, shall govern the development of the property, and will control over other provisions of the code where the development agreement has addressed the matter.
3. The degree of vesting from the application of new laws, and exceptions thereto, is specified in the terms and conditions of the standard form development agreement.
4. A development agreement cannot authorize deviations from the requirements of LCMC Title 15 (Buildings and Construction). The building codes that apply are the building codes in effect at the time the complete building permit application is submitted. (Ord. 2019-30 § 1)