Chapter 38- Development Agreements
38.010 Intent.
38.020 Forms and fees.
38.030 Qualification as an applicant.
38.040 Review of application.
38.050 Transmittal to Planning Commission.
38.060 Planning Commission report.
38.070 Decision by Board of Supervisors.
38.080 Approval of development agreements.
38.090 Required notice.
38.100 Irregularity of proceedings.
38.110 Amendment and cancellation of agreement by mutual consent.
38.120 Recordation.
38.130 Periodic review.
38.140 Procedure for periodic review.
38.150 Proceedings upon modification or termination.
38.160 Hearing on modification or termination.
38.010 Intent.
The intent of this chapter is to provide both the applicant, as well as affected public entities, with an alternative mechanism to guarantee required public improvements and/or amenities associated with the approval of any project.
38.020 Forms and fees.
There are no separate application forms for development agreements; the application form used for the project requiring the development agreement will be utilized. There will be an additional fee attached to the processing of development agreements. A current fee schedule is available with the application forms. This fee shall reflect the actual cost of processing such agreement.
Each application shall be accompanied by the form of development agreement proposed by the applicant. The Board of Supervisors may adopt by resolution a standard form of development agreement. The applicant may choose to use the standard form and include specific proposals for changes in or additions to the language of the standard form. The proposed agreement shall contain all the elements required by Government Code Sections 65864 through 65869.5.
38.030 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 Community Development director may require an applicant to submit proof of his interest in the real property and of the authority of the agent to act for the applicant. Before processing the application, the Community Development 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 agreement.
38.040 Review of application.
The Community Development shall enter on the application the date it is received. He/she shall review the application and may reject it for processing if it is incomplete or inaccurate. If he/she finds that the application is complete, he/she shall accept it for filing. The Director shall review the application and determine the additional requirements necessary to complete the agreement. After receiving the required information, he/she shall prepare a staff report to the Planning Commission with a recommendation and shall state whether the agreement proposed or in an amended form would be consistent with this General Plan and any applicable specific plan.
38.050 Transmittal to Planning Commission.
The Director shall transmit the application to the Commission for a public hearing when all the necessary reports and recommendations are completed. Notice of the public hearing shall be given as provided in Chapter 46, Noticing Requirements. The application for a development agreement may be considered concurrently with, but not before, other discretionary permits for the project.
38.060 Planning Commission report.
After a public hearing, the Commission shall consider the application and prepare a report and recommendation for the Board of Supervisors. The report and reasons for the recommendation shall include findings on the matters stated in Section 38.070. This report and the reasons for the recommendation shall be forwarded to the board clerk who shall set the matter for public hearing before the Board of Supervisors.
38.070 Decision by Board of Supervisors.
- After the Board of Supervisors completes the public hearing, it may approve, modify or deny the development agreement. It may refer matters not previously considered by the Commission during its hearing back to the Commission for report and recommendation if new information comes to light at the Board hearing.
- Board of Supervisors shall not approve the development agreement unless it finds that the agreement contains all of the following:
- Is consistent with the objectives, policies, general land uses and programs specified in this General Plan and any applicable specific plan; and
- Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located; and
- Is in conformity to public convenience, general welfare and good land use practices; and
- Will not be detrimental to the health, safety and general welfare; and
- Will not adversely affect the orderly development of property or the preservation of property values; and
- Is consistent with the provisions of Government Code Sections 65864 through 65869.5.
38.080 Approval of development agreements.
If the Board of Supervisors approves the development agreement, it shall adopt an ordinance approving the agreement and directing the Board Chairman to execute the agreement on behalf of the County after the effective date of the ordinance.
38.090 Required notice.
- Notice of public hearing required by this chapter shall be given as provided in Chapter 46, Noticing Requirements.
- The notice requirements referred to in subsection A is declaratory of existing law (Government Code Sections 65867, 65864, 65864.5 and 65856). If State law prescribes a different notice requirement, notice shall be given in that manner.
38.100 Irregularity of proceedings.
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 an error, irregularity, informality, neglect or omission as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation, or any matters of procedure whatever unless 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. There is no presumption that error is prejudicial or that injury was done if error is shown.
38.110 Amendment and cancellation of agreement by mutual consent.
Either party may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into. The amendment or cancellation permitted by this section must be by mutual consent of the parties.
The procedure for proposing and adoption of 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. However, where the County initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least 30 days in advance of public notice of the hearing to consider the amendment or cancellation.
38.120 Recordation.
Within 10 days after the County enters into the development agreement, the Board Clerk shall have the agreement recorded with the County Recorder.
If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Government Code Section 65868, or if the County terminates or modifies the agreement as provided in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the board clerk shall have notice of such action recorded with the County Recorder.
38.130 Periodic review.
- The Director shall review the development agreement every 12 months from the date the agreement is entered into.
- The time for review may be shortened either by agreement between the parties, or by initiation in one or more of the following ways:
- Recommendation of the Director;
- Resolution of intention by the Commission; or
- Resolution of intention of the Board of Supervisors.
- The Director shall begin the review proceeding by giving written notice that he/she intends to undertake a periodic review of the development agreement to the property owner. He/she shall give the notice at least 10 days in advance of the time at which the matter will be considered by the Planning Division.
38.140 Procedure for periodic review.
- The Director, or the Commission if the matter has been referred, shall conduct a public review hearing at which time the property owner must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the property owner.
- The Director shall determine upon the basis of substantial evidence whether or not the property owner has, for the period under review, complied in good faith with the terms and conditions of the agreement.
- If the Director finds and determines on the basis of substantial evidence that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, the review for that period is concluded.
- If the Director finds and determines on the basis of substantial evidence that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the Director may initiate proceedings to modify or terminate the agreement.
38.150 Proceedings upon modification or termination.
If, upon a finding under Section 38.140(D), the Director determines to proceed with modification or termination of the agreement, the Director shall give notice to the property owner of his/her intention to do so. The notice shall contain:
- The time and place of the hearing;
- A statement as to whether or not the Director proposes to terminate or to modify the development agreement; and
- Other information that the Director considers necessary to inform the property owner of the nature of the proceeding.
38.160 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 Board of Supervisors may refer the matter back to the Planning Commission for further proceedings or for report and recommendation. The Board of Supervisors may impose those conditions it considers necessary to the action it takes to protect the interests of the Planning Division. The decision of the Board of Supervisors is final.
