Chapter 86.13 — DEVELOPMENT AGREEMENT ADOPTION AND AMENDMENT

(a) Compliance with Government Code § 65864. This Chapter establishes procedures and requirements for the adoption and amendment of development agreements in compliance with Government Code §§ 65864 et seq.

(b) Development Agreement Defined. A development agreement is a contract between the County and an applicant for a development project.

(c) Assurances to the Applicant. A development agreement is intended to provide assurance to the applicant that an approved project may proceed subject to the policies, regulations, rules, and conditions of approval applicable to the project at the time of approval, regardless of any changes to County policies, regulations, and rules after project approval.

(d) Assurances to the County. In return, the County is provided assurance that the project would further important County-wide goals and policies which have been officially recognized by the Board, and provide the County with significant, tangible benefits beyond those that may be required by the County through normal project conditions of approval.

(Ord. 4011, passed - -2007)

(a) Contents of application. An application for a development agreement shall be filed and processed in compliance with Chapters 85.02 (Basic Review Procedures) and 85.03 (Application Procedures). The application shall be accompanied by the detailed data/ materials identified in the Department handout for development agreements. It is the responsibility of the applicant to establish evidence in support of the findings required by § 86.13.040(a)(1) (Findings Required), below.

(b) Fees. The applicant shall pay the fees and charges imposed for the filing and processing of each application and document provided for or required under these regulations in compliance with the Planning Fee Schedule. Fees and charges shall be paid before a determination by the County that the application is complete.

(c) Qualified as an Applicant. Only a qualified applicant may file an application to enter into a development agreement.

(1) A qualified applicant is a person who has legal or equitable interest in the real property which is the subject of the development agreement, as determined at the sole discretion of the County.

(2) The term applicant shall also include an authorized agent of the property owner.

(3) The Director may require an applicant to submit proof of interest in the real property and of the authority of the agent to act for the applicant.

(4) Before processing the application, the Director shall obtain the opinion of the County Counsel as to the sufficiency of the applicant’s interest in the real property to enter into the development agreement.

(d) Proposed Form of Agreement.

(1) Each application shall be accompanied by the form of development agreement proposed by the applicant. (2) This requirement may be met by designating the County’s standard form of development agreement, if the County has developed a standard form development agreement, and including specific proposals for changes in or additions to the language of the standard form.

(e) Review of Application.

(1) The Director shall endorse on the application the date it is received. When application fees have been paid in compliance with the Planning Fee Schedule, the Director shall review the application and may reject it if it is incomplete or inaccurate for processing. If the Director finds that the application is complete, the Director shall accept it for filing. The Director shall review the application and determine the additional requirements necessary to complete the development agreement.

(2) After receiving the required information, the Director shall prepare a staff report and recommendations and shall state whether or not the development agreement proposed, or in an amended form, will be consistent with the General Plan and any applicable community plan or specific plan.

(Ord. 4011, passed - -2007)

(a) Director to Give Notice. The Director shall give notice of the County’s intention to consider adoption of the development agreement and of any other public hearing required by law or these regulations.

(b) Notice Requirements. Notice for the public hearings to consider adoption of a development agreement shall be given in compliance with Chapter 86.07 (Public Hearings).

(c) Failure to Receive Notice. Failure of any person to receive notice, who is otherwise entitled to notice in

compliance with State law or these regulations, does not affect the authority of the County to enter into a development agreement.

(d) Rules Governing Conduct of Hearing. The public hearing shall be conducted in compliance with the procedural standards adopted in compliance with Chapter 86.07 (Public Hearings).

(1) Each person interested in the matter shall be given an opportunity to be heard.

• (2) The applicant has the burden of proof at the public hearing on the proposed development agreement.

• (e) Irregularity in Proceedings.

(1) 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, informality, irregularity, neglect, or omission (“error”) as to any matter pertaining to application, finding, hearing, notice, petition, recommendation, record, report, or any matters of procedure.

(2) The only allowable exception to this rule will be if, 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.

(3) There is no presumption that error is prejudicial or that injury was done if error is shown. (Ord. 4011, passed - -2007)

(a) Determination by the Commission. After the hearing by the Commission, the Commission shall make its recommendation in writing to the Board.

(1) Findings required. The proposed development agreement may be recommended for approval only if all of the following findings are first made. The recommendation shall include the Commission’s findings and determination that the proposed development agreement and the associated development project:

(A) Are in compliance with the general land uses, objectives, policies, and programs specified in the General Plan, any applicable community plan or specific plan, and this Development Code;

(B) Are compatible with the uses authorized in, and the regulations prescribed for, the land use and land use zoning district in which the real property is located;

• (C) Are in conformity with public convenience, general welfare, and good land use practice;

• (D) Will not be detrimental to the health, safety, and general welfare; and

• (E) Will not adversely affect the orderly development of property or the preservation of property values.

• (2) Include Reasons. The recommendation shall include the reasons for the Commission’s recommendation.

• (b) Decision by the Board.

(1) After the Board completes the public hearing, it may accept, modify, or disapprove the Commission’s

recommendation. It may, but need not, refer matters not previously considered by the Commission during its hearing back to the Commission for report and recommendation. The Commission shall hold a public hearing on matters referred back to it by the Board.

(2) The Board shall not approve the development agreement unless it first makes all of the findings required by § 86.13.040(a)(1) (Findings Required), above.

(c) Approval of Development Agreement. If the Board approves the development agreement, it shall do so by the adoption of an ordinance. After the ordinance approving the development agreement takes effect, the County may enter into the development agreement.

(Ord. 4011, passed - -2007)

(a) Initiation of Amendment or Cancellation. Either party may propose an amendment to or cancellation of, in whole or in part, the development agreement previously entered into.

(b) Procedure.

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

(2) Where the County initiates the proposed amendment to or cancellation of a development agreement, it shall first give notice to the property owner of its intention to initiate the proceedings at least ten calendar days in advance of the giving of notice of intention to consider the amendment or cancellation required by § 86.13.030(b) (Notice Requirements), above.

(Ord. 4011, passed - -2007)

(a) Recordation of Agreement Within Ten Days. Within ten calendar days after the County enters into the development agreement, the Clerk of the Board shall have the development agreement recorded with the County Recorder’s Office.

(b) Recordation of Notice to Amend or Cancel Agreement. If the parties to the agreement or their successors-ininterest amend or cancel the development agreement as provided in Government Code § 65868 or if the County terminates or modifies the development agreement as provided in Government Code § 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the Clerk of the Board shall have notice of the action recorded with the County Recorder’s Office.

(Ord. 4011, passed - -2007)

The County shall review each development agreement in compliance with Government Code § 65865.1. (Ord. 4011, passed - -2007)

(a) Proceedings upon Modification or Termination. If, upon a finding under § 86.13.070 (Agreement Review), above, the Board determines to proceed with modification or termination of the development agreement, the County shall give notice to the property owner of its intention to do so. The notice shall contain the following information:

• (1) The date, time, and place of the hearing;

• (2) A statement as to whether or not the County proposes to modify or terminate the development agreement; and

• (3) Other information which the County considers necessary to inform the property owner of the nature of the proceeding.

• (b) Hearing on Modification or Termination.

• (1) At the date, time, and place set for the hearing on modification or termination, the property owner shall be given an opportunity to be heard.

• (2) The Board may refer the matter back to the Commission for report and recommendation.

• (3) The Board may impose those conditions to the action it takes as it considers reasonable and necessary to protect the interests of the County.

• (4) The decision of the Board shall be final.

• (Ord. 4011, passed - -2007)