Chapter 4-25 — DEVELOPMENT AGREEMENTS

Sections:

4-25-010 Purpose and scope.

4-25-020 Application.

4-25-030 Contents of development agreements.

4-25-040 Initial review.

4-25-050 Consideration and decision.

4-25-060 Amendment and cancellation.

4-25-070 Annual review.

4-25-080 Effect of development agreement.

4-25-090 Agreements for newly annexed areas.

The purpose of this chapter is to implement the development agreement provisions of the state planning and zoning law. All development agreements shall be processed in accordance with this chapter.

A development agreement provides assurance to a developer that he or she may proceed with a project in accordance with existing policies, rules and regulations and subject to certain conditions of approval. Such assurance will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce economic costs of development. Also, by requiring some public benefit, this process assures some additional benefit to the public in exchange for the vested rights granted under a development agreement. [Government Code Secs. 65864 – 65869.5. Bracketed references throughout this chapter are to the California Government Code.] (Ord. 1641 § 2, 2001)

A. Filing by Owner. An application for a development agreement may only be filed by a person having a legal or equitable interest in real property. If the real property is located in unincorporated territory within the city’s sphere of influence, the agreement shall not become operative unless annexation proceedings

annexing the property to the city are completed within the period of time specified by the agreement. If the annexation is not completed within the time specified, the agreement is void.

B. Form of Application. An application for a development agreement shall be on a form approved by the community development director.

C. Application Fees. The applicant shall pay fees for the filing and processing of an application as established by resolution of the city council. [Sec. 65865.] (Ord. 1641 § 2, 2001)

A. Required Provisions. A development agreement shall include the following:

1. The duration of the agreement;

2. The permitted uses of the property;

3. The density or intensity of the use;

4. The maximum height and size of the proposed buildings;

5. Provisions for the dedication of land for public purposes;

6. The public benefit offered by the applicant as consideration for entering into the agreement;

7. The provisions set forth in LPZC 4-25-080(B).

Provisions in subsections (A)(2), (3) and (4) of this section may be satisfied by incorporating the terms of a PD District governing the same property.

B. Optional Provisions. A development agreement may include the following:

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

2. Provisions providing that construction shall begin within a specified time and that the project or any phase be completed with a specified time;

3. Terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time.

C. Provisions Not Allowed. A development agreement shall not include the following:

1. Requirements for the city to provide public facilities, improvements or services;

2. Requirements for the city to exercise its legislative or quasi-judicial powers in a particular way;

3. Waivers or modifications of any city fees or requirements. [Sec. 65865.2.] (Ord. 1641 § 2, 2001)

A. Completeness. The planning manager shall determine whether the application is complete. The planning manager shall schedule the proposed development agreement for the required hearing for initial review under this section.

B. Initial Review by Council. The city council shall hold a noticed public hearing to initially review an application for development agreement. At the hearing, the council shall determine whether it wishes to enter into such an agreement and, if so, the general subject areas the staff is authorized to negotiate. Notice of the hearing shall be given as provided in Government Code Sections 65090 and 65091.

C. Initial Review Not Required. Initial review under this section is not required for:

1. A development agreement approved in conjunction with the approval or amendment or a residential, commercial or industrial planned development zoning district under LPZC 2-76-080 or 2-76-100. The development agreement for these planned district projects shall be substantially in the standard form prepared by the city attorney’s office;

2. A development agreement approved in conjunction with a PUD permit in the South Livermore Valley Specific Plan area, under Chapter 2-82 LPZC;

3. An amendment to an existing development agreement. (Ord. 1641 § 2, 2001)

A. Community Development Director Direction. The community development director shall direct the negotiations with the developer regarding terms of the development agreement. The community development director shall determine what environmental review is appropriate under the California Environmental Quality Act (CEQA). Once negotiations are completed, the community development director shall schedule the proposed development agreement for the required hearings under this section.

B. Planning Commission Hearing and Determination. The planning commission shall hold a public hearing to consider whether the development agreement should be approved. Notice of the hearing shall be given as provided under Government Code Sections 65090 and 65091. The commission may recommend approval, approval subject to conditions, or denial of the application.

C. City Council Determination. The city council shall hold a public hearing to consider whether the development agreement should be approved. Notice of the hearing shall be given as provided under Government Code Sections 65090 and 65091. Approval, authorizing the city manager to sign the development agreement, shall be by ordinance (which takes effect 30 days after adoption).

D. Findings. The planning commission may recommend approval and the city council may approve the development agreement only after finding that the development is consistent with the general plan, any applicable specific plan, and this chapter.

E. Recordation. Within 10 days after the city enters into a development agreement, the city clerk shall record a copy of the agreement with the county recorder. (Ord. 1641 § 2, 2001)

A development agreement may be amended or cancelled using the same procedure for entering into the agreement under LPZC 4-25-050. The initial review under LPZC 4-25-040 is not required. [Sec. 65868.] (Ord. 1641 § 2, 2001)

A. Review. The planning commission shall hold a public hearing to review each development agreement at least every 12 months from the date it is entered into. The planning commission or city council, or both, may hold public hearings to conduct more frequent reviews of a development agreement.

B. Notice. The planning manager shall give notice of the intention to conduct a review under this section as provided in Government Code Sections 65090 and 65091. In addition, at least 10 days before the hearing, the planning manager shall give notice to all persons having a legal or equitable interest in the real property subject to the agreement. The notice shall include the following:

1. A statement that the applicant, or the successor-in-interest to the agreement, has the burden of demonstrating good faith compliance with the terms of the agreement; and

2. A statement that if, as a result of such review, the planning commission or city council finds on the basis of substantial evidence that the applicant or successor to the agreement has not complied in good faith with the terms and conditions of the agreement, the city may modify or terminate the agreement.

C. Determination. If the planning commission finds, on the basis of substantial evidence, that the applicant or successor-in-interest has not complied in good faith with the terms or conditions of the agreement, it may recommend modification or termination to the city council. Based on substantial evidence that the applicant or successor has not complied in good faith with the terms or conditions of the agreement, the city council may modify or terminate the agreement. [Sec. 65866.] (Ord. 1641 § 2, 2001)

A. Vested Development Rights. The development of the property shall be governed by those rules, regulations and official policies in effect at the time of execution of the agreement, regarding permitted uses of the land, density, design, improvement and construction standards and specifications, except:

1. As otherwise provided by the development agreement; or

2. As provided in subsection (B) of this section.

B. Limitations. Notwithstanding the vested rights set forth in subsection (A) of this section, the property owner shall:

1. Pay the processing and development impact fees in effect at the time those fees are paid;

2. Comply with building code requirements in effect on a city-wide basis at the time of construction;

3. Comply with construction and technical design standards or specifications for public improvements which are applicable city-wide;

4. Comply with changes in city laws, regulations, plans or policies applicable city-wide, the terms of which are found by the city council, based on substantial evidence, to be necessary to protect members of the public from a condition dangerous to their health or safety;

5. Comply with a change in city law, regulations, plans or policies which is:

a. Specifically mandated by state or federal law, or by any regional governmental agency that has legal authority over the city under state law or a joint powers agreement; or

b. A result of or in response to state or federal law, or regional agency action, made necessary in order for the city to avoid losing or not receiving substantial funding or other substantial public benefits or facilities that would be available to the city only if it makes such a change; or

c. Specifically mandated by, or necessary for compliance with or implementation of, the terms of any permit, entitlement or other authorization necessary for the development of the property issued or granted to the city, county and/or property owners by any federal, state or regional agency; and

6. Following any subsequent environmental review, comply with required mitigation measures.

C. City’s Rights. A development agreement does not prevent the city in subsequent actions applicable to the property from:

1. Applying new rules, regulations and policies which do not conflict with those set forth in the development agreement; or

2. From denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations and policies. [Sec. 65866.] (Ord. 1641 § 2, 2001)

If newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by the county before the effective date of annexation shall be governed by Government Code Section 65865.3. (Ord. 1641 § 2, 2001)

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