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HomeMy WebLinkAboutCC Policy No. 402 - Procedures and Requirements for Dev Agmts Amended October 17, 2023CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements Purpose To adopt regulations establishing procedures and requirements for consideration of development agreements. Policy Under a development agreement, both the City and the developer commit themselves to proceed with a development in accordance with the terms of the agreement. The city may agree to process further applications in accordance with the City's building regulations and planning and zoning ordinances, regulations, and standards in effect at the time of the agreement, and not to subject the development to changes in those ordinances, regulations and standards for a specified time. In return, the developer may agree to construct specific improvements, provide public facilities and services, pay development impact fees, develop according to a specified time schedule or make other commitments that the City might otherwise have no authority to require a developer to perform. A development agreement is enforceable despite any changes to the General Plan, a specific plan, zoning, subdivision, or building regulations. The development agreement may provide that the developer shall be subject to future changes in development impact fees. Any fees received or costs recovered by the City shall comply with Government Code Section 66006. A development agreement is distinguishable from a “disposition and development agreement" entered into between a developer and a redevelopment agency, wherein the agency typically participates financially in the project in some way. The commitment made by a developer under a development agreement may be different in kind and scope than the exactions imposed by a city under the Mitigation Fee Act (Government Code Section 66000, et. seq.), which authorizes a city to impose impact fees on a development project involving the issuance of a permit for construction, but not a permit to operate such fees are collected for the purpose of defraying the cost of public facilities related to the development project. A. Requirements for Applications and Agreements A.1 Forms and Information a. The City Attorney shal1 prescribe the form for each application and notice required under this Policy for the preparation and implementation of development agreements. b. The City Manager, or designee, may require an applicant to submit such information and supporting data as deemed necessary to process the application. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements A.2 Fees The City Council may include in the City's Fee Schedule the fees and charges imposed for the filing and processing of each application and document required under this Policy. A.3 Qualification as an Applicant Only a qualified applicant may file an application to enter into a development agreement with the City. A qualified applicant is a person who has a legal or equitable interest in the real property that is the subject of the agreement. "Applicant" includes an authorized agent of the person who has such an interest. The City Manager, or designee, may require an applicant to submit proof of his or her interest in the real property and of the authority of the agent to act for the applicant. Before the application is processed, the City Attorney shall determine the sufficiency of the applicant's interest in the real property to enter into the agreement. A.4 Form and Contents of Development Agreement In applying for a development agreement, a developer may submit a form of agreement prepared by the developer. Whether prepared by the City or the developer, the agreement shall specify the following: a. The duration of the agreement; b. The permitted uses of the real property; c. The density or intensity of use; d. The maximum height and size of proposed structures; e. Provisions for reservation or dedication of land for public purposes; f. The nature and timing of construction of improvements; g. The date by which construction shall commence; h. The date by which construction of the development and each phase of the development shall commence; i. Other commitments by the developer including, but not limited to, an agreement to construct specific improvements, provide public facilities and services, pay development impact fees, or make other commitments that the City requires; CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements j. A commitment by the City to process the developer's application in accordance with the City's building regulations and planning and zoning ordinances, regulations, and standards in effect at the time the agreement is entered into, and not to subject the development to changes in such ordinances, regulations, and standards for a specified period of time; and k. For phased developments, and developments of long duration, the City and the developer may agree that the period of time for which the development will not be subject to changes in the City's building, planning, and zoning ordinances and regulations will be for a specified time that is less than the term of the agreement. l. Other conditions, terms, restrictions, and requirements provided they do not prevent the development of the real property for the uses and to the density or intensity of development set forth in the agreement. A.5 Review of Applications; Submission to Planning Commission. The City Manager, or designee, shall review the application and shall reject it if it is inaccurate or incomplete for processing. If City staff finds the application is complete and contains the information necessary to complete the development agreement, he or she shall accept it for filing. When both the application and agreement are determined by the City to be complete, the City Manager, or designee, shall submit the agreement to the Secretary of the Planning Commission, who shall place the agreement on a Commission agenda for a public hearing to consider the agreement for approval. At the time the City Manager, or designee, submits the agreement to the Secretary of the Planning Commission, City Attorney shall submit with the agreement a report indicating whether or not the agreement would be consistent with the General Plan and any applicable specific plan. A.6 Hearing by City Council After the development agreement is considered by the Planning Commission, the City Manager, or designee, shall cause to have it placed on a City Council agenda to have it considered for approval by the Council after public hearing. The City Attorney shall submit with the agreement a report indicating whether or not the agreement would be consistent with the General Plan and any applicable specific plan. A.7 Concurrent Processing A development agreement may be processed concurrently with other applications for development for the same property. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements A.8 Other Parties In addition to the City and the developer, any federal, state, or local government agency may be included as a party to the development agreement under the authority of the Joint exercise of Powers Act (Government Code Section 6500 et seq.) or other authority. B. Notices and Hearings B.l Notice of Intention The City Clerk shall give notice of the intention to consider adoption of a development agreement at least ten days before the public hearings of the Planning Commission and the City Council. The notice shall be given as provided in Section 65091 of the Government Code. B.2 Form of Notice The form of Notice of Intention to consider adoption of a development agreement shall contain: a. The time and place of the hearing; b. A general explanation of the matter to be considered, including a general description of the area affected; and c. Other information required by specific provisions of this Policy or that the City Manager, or designee, considers necessary or desirable. B.3 Manner of Notice Notice of the intention to consider adoption of a development agreement shall be given as provided in Government Code Section 65091. B.4 Failure to Receive Notice The failure of any person or entity to receive notice shall not affect the authority of the City to enter into a development agreement, or affect the validity of development agreement. B.5 Rules Governing Conduct of Public Hearings A public hearing at which a development agreement is considered shall be conducted as nearly as possible in accordance with the procedural standard 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 developer has the burden of proof at the public hearing. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements C. Standard of Review, Findings, and Decision C. l Recommendation by Planning Commission After the public hearing is held by the Planning Commission, the Commission shall adopt a resolution making its recommendation to the City Council as to whether the development agreement should be approved. The resolution shall set forth the reasons for the Commission's recommendation, including findings setting forth the Commission's determinations regarding the following: a. Whether the development agreement is consistent with the objectives, policies, land uses, and programs specified in the General Plan and any applicable specific plan; b. Whether the development agreement is compatible with the uses and regulations for the zone in which the property is located; c. Whether the development agreement is in conformity with the public convenience, general welfare, and good land use practice; d. Whether the development agreement will not be detrimental to the health, safety, and general welfare; e. For a development agreement that is to be entered into in connection with a subdivision, as defined in Government Code Section 66473. whether the agreement provides that any tentative map will comply with the provisions of that section. f. Whether the development agreement offers to the City Substantial benefit in exchange for the vested right benefit granted to the developer. C.2 Decision by City Council a. After receipt of the recommendation of the Planning Commission, the City Council shall hold a public hearing. The Council may accept, disapprove, or modify the recommendation of the Planning Commission. The Council may, but is not required to, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation. The Planning Commission shall consider at a public meeting all matters referred back to it by the City Council and may, but is not required to, hold a public hearing on such matters. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements b. The City Council may not approve the development agreement unless it finds that the agreement is in compliance with the standards set forth in Section C.l. c. The decision whether to enter into a development agreement is within the sole discretion of the City Council. C.3 Approval of Development Agreement If the City Council approves the development agreement, it shall do so by the adoption of an ordinance. The City may enter into the agreement after the ordinance approving the agreement takes effect. D. Amendment and Cancellation of Development Agreement by Mutual Consent D.1 Initiation of Amendment or Cancellation A development agreement may be amended, or cancelled in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Either party may initiate such amendment or cancellation. D.2 Procedure a. The procedure for proposing and adopting 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, as set forth in Sections “B” and “C” of this Policy. b. lf the City initiates the proposed amendment to or cancellation in who or in part of the development agreement, it shall first give notice to t developer of its intention to initiate such proceedings at least 30 days advance of the giving of the Notice of Intention to consider t amendment or cancellation required by Section "B". E. Recordation E.1 Recordation of Development Agreement, Amendment or Cancellation a. Within 10 days after the City enters into the development agreement, the City Clerk shall have the agreement recorded with the County Recorder. The agreement shall run with the land and inure to the benefit of and bind successors in interest. b. If the City and the developer or the developer's successor in interest CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements 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.l for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall cause notice of such action to be recorded with the County Recorder within 10 days. F. Periodic Review F.1 Time for Initiation of Review The City Council shall review the development agreement at a public hearing at least every 12 months from the date the agreement is entered into. The time period before which review may occur may be shortened either by agreement of the City and the developer or by initiation in one or more of the following ways: a. Recommendation of the City Manager, or designee; or b. Action of the City Council. The failure to conduct a review in any 1 month period does not preclude a later review. F.2 Notice of Review The City shall begin the review proceeding by giving notice that the City Council intends to undertake a review of the development agreement. F.3 Delegation or Referral to Planning Commission At the time the development agreement is reviewed by the City Council, the Council may: a. Review the development agreement itself; or b. Delegate the review to the Planning Commission for a determination or c. Refer the review to the Planning Commission for a recommendation as to the action to be taken by the City Council. F.4 Procedure The notice and hearing procedure for review of the development agreement is the same as the procedure for entering into the agreement in the first instance, as set forth in section “B” of this policy. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements F.5 Public Hearing The decision-making body shall conduct a public hearing at which the developer must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is with the developer. At the time and place set for hearing, the developer shall be given an opportunity to be heard. F.6 Findings a. At the conclusion of the public hearing, the decision-making body shall adopt a resolution making findings based on substantial evidence as to whether or not the developer has, for the period of time under review, complied in good faith with the terms and conditions of the development agreement. b. If the decision-making body finds and determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the development agreement during the period of time under review, the review for that period is concluded. c. If the decision-making body finds and determines on the basis of substantial evidence that the developer has not complied in good faith with the terms and conditions of the development agreement during the period of time under review, it shall in its resolution modify or terminate the agreement. If the agreement is modified, the decision-making body may impose those conditions to its action as .it considers necessary to protect the interests of the City. If the decision-making body determines to modify the agreement, it shall do so only in a manner reasonably related to addressing the lack of compliance identified under Subsection (b) of this Section. d. If the review 1s conducted by the Planning Commission for a determination the developer or - any interested person may appeal the determination under Subsections (b) and (c) of this Section to the City Council in accordance with the City's procedures for appeals to the City Council. F.7 Decision of the City Council Final In all proceedings under Section "F", the decision of the City Council shall be final. F.8 Costs of Review The developer shall pay the City's reasonable costs for staff time expended on the annual review. CITY COUNCIL POLICY CITY OF NATIONAL CITY AMENDED: October 17, 2023 ADOPTED: September 6, 2011 POLICY #402 TITLE: Procedures and Requirements for Development Agreements G. Judicial Review G.l Standard of Review Judicial review of the initial approval by the City of a development agreement shall be by writ of mandate under Code of Civil Procedure Section 1085. Judicial review of a City action taken pursuant to this Policy, other than the initial approval of development agreements, shall be by writ of mandamus under Code of Civil Procedure Section 1094.5. Any action or proceeding to attack, review, set aside, void, or annul any decision of the City to approve or amend a development agreement under this Policy shall be commenced within 90 days of the date of the decision. Related Policy References Government Code Sections: 65091, 65804, 65864-65869.5, 66000, 66006, 66473.7 Code of Civil Procedure Sections: 1085, 1094.5 Prior Policy Amendments September 6, 2011 (Resolution No. 2011-196) Establishing Policy December 10, 2013 (Resolution No. 2013-189) October 17, 2023 (Resolution No. 2023-149)