A.
Authority
for Adoption. These regulations are adopted under the authority of
Government Code Sections 65864 through 65869.5.
B.
Forms
and Information.
1.
The
Community Development Director shall prescribe the form for each application,
notice and document provided for or required under these regulations
for the preparation and implementation of development agreements.
2.
The
Community Development Director may require an applicant to submit
such information and supporting data, as the Community Development
Director considers necessary to process the application.
C.
Fees.
The City Council shall by separate resolution fix the schedule of
fees and charges imposed for the filing and processing of each application
and document provided for or required under these regulations.
D.
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, which
is the subject of the development agreement. Applicant includes authorized
agent. The Community Development Director shall 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
City Attorney as to the sufficiency of the applicant's interest in
the real property to enter into the agreement.
E.
Proposed
Form of Agreement. Each application shall be accompanied by the form
of development agreement approved by the City. This requirement may
be met by designating the City's standard form of development agreement
and including specific proposals for changes in or additions to the
language of the standard form.
F.
Review
of Application. The Community Development Director shall endorse on
the application the date it is received. He shall review the application
and may reject it if it is incomplete or inaccurate for processing.
If he finds that the application is complete, he 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 shall prepare a staff report
and recommendation and shall state whether or not the agreement proposed
or in an amended form would be consistent with the general plan and
any applicable specific plan.
(Ord. 2004-1018 § 1, 2004)
A.
Duty
to Give Notice. The Community Development Director shall give notice
of intention to consider adoption of development agreement and of
any other public hearing required by law or these rules.
B.
Requirements
for Form and Time of Notice of Intention to Consider Adoption of Development
Agreement.
1.
Form
of Notice. The form of the notice of intention to consider adoption
of development agreement shall contain:
2.
Time
and Manner of Notice. The time and manner of giving notice is by:
a.
Publication or Posting. Publication at least once in a newspaper
of general circulation, published and circulated in the City of Imperial
Beach, or if there is none, posting in at least three public places
in the City of Imperial Beach.
b.
Mailing. Mailing of the notice to all persons shown on the last equalized
assessment roll as owing real property within five hundred feet of
the property, which is the subject of the proposed development agreement.
If the number of owners to whom notice is to be mailed is greater
than one thousand, the Community Development Director may, as an alternative,
provide notice in the manner set forth in Section 65091 as amended
of the Government Code.
3.
Additional
Notice. The City Council may direct that notice of the public hearing
to be held before it shall be given in a manner that exceeds the notice
requirements prescribed by State law.
4.
Declaration
of Existing Law. The notice requirements referred to in subsections
(B)(2)(a) through (b) of this section are declaratory of existing
law. (Government Code Section 65867 as amended and as incorporated
by reference). If State law prescribes a different notice requirement,
notice shall be given in that manner.
C.
Failure
to Receive Notice. Lack of receipt by any person entitled to notice
required by law or these regulations do not affect the authority of
the City to enter into a development agreement.
D.
Rules
Governing Conduct of Hearing. The public hearing shall be conducted
as nearly as may be in accordance with the procedural standards adopted
under Government Code Section 65804 for the conduct of zoning hearings
and applicable local procedural rules established by the City Council.
Each person interested in the matter shall be given an opportunity
to be heard. The applicant has the burden of proof at the public hearing
on the proposed development agreement.
E.
Irregularity
in 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 any error, irregularity, informality,
neglect or omission ("error") 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 was shown.
(Ord. 2004-1018 § 1, 2004)
A.
Determination
by the City Council. After the hearing by the City Council, the City
Council shall make its decision to approve or deny the proposed development
agreement. The approval shall include the City Council's determination
whether or not the development agreement proposed:
1.
Is
consistent with the objectives, policies, general land uses and programs
specified in the general plan, the local coastal plan and any applicable
specific plan;
2.
Is
compatible with the uses authorized in, and the regulations prescribed
for, the land use district in which the real property is located;
3.
Is
in conformity with public convenience, general welfare and good land
use practice;
4.
Will
not be detrimental to the health, safety and general welfare; and
5.
Will
not adversely affect the orderly development of the property or the
preservation of property values.
B.
Approval
of the Development Agreement. If the City Council approves the development
agreement, it shall do so by the adoption of an ordinance.
After the ordinance approving the development agreement takes
effect, the City Council may enter into the agreement.
(Ord. 2004-1018 § 1, 2004)
A.
Initiation
of Amendment or Cancellation. For an existing development agreement,
either party may propose an amendment to or cancellation in whole
or in part.
B.
Procedure.
The procedure and notice requirements for proposing an 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 the agreement
in the first instance.
(Ord. 2004-1018 § 1, 2004)
A.
Within
ten days after the City enters into the development agreement, the
City Clerk shall have the agreement recorded with the County Recorder.
B.
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 City terminates or modifies the agreement as provided in
Government Code Section 65865.1 for failure of the applicant to comply
with good faith with the terms or conditions of the agreement, the
City Clerk shall have notice of such action recorded with the County
Recorder.
(Ord. 2004-1018 § 1, 2004)
A.
Time
for and Initiation of Review. The City shall review the development
agreement every twelve months from the date the agreement is entered
into. The time for review may be modified either by agreement between
the parties or by initiation in one or more of the following ways:
B.
Notice
of Periodic Review. The Community Development Director shall initiate
the review proceeding by giving notice to the property owner that
the City intends to undertake a periodic review of the development
agreement. He or she shall give the notice as provided in Government
Code Section 65091(a)(1) and (2).
C.
Hearing.
The City Council shall conduct a hearing at which 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.
D.
Findings
Upon Hearing. The City Council 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.
E.
Procedure Upon Findings. If the City Council 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, and a notice of that determination shall be published and mailed as provided in subsection B of this section. If the City Council finds and determines on the basis of substantial evidence that the owner has not complied with the terms and conditions of the agreement, the City Council may set the matter for modification or termination of the agreement under the procedures set forth in Section 19.89.070 of this chapter.
(Ord. 2004-1018 § 1, 2004)
A.
Proceedings Upon Modification or Termination. If, upon a finding, under Section 19.89.060(E) of this chapter, the City determines to proceed with modification or termination of the agreeme nt, the City shall give notice as provided in Section 19.89.060(B) of this chapter to the property owner of its intention so to do. The notice shall contain:
1.
The
time and place of the hearing, which shall be conducted by the City
Council;
2.
A
statement as to whether or not the City proposes to terminate or to
modify the development agreement; and
3.
Other
information that the City considers necessary to inform the property
owner of the nature of the proceeding.
B.
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. At the hearing, the City Council
shall make a determination as to whether the development agreement
should be terminated or modified. If, as a result of the hearing,
the City Council finds and determines that the applicant or successor
in interest has not complied in good faith with the terms and conditions
of the agreement, the City may terminate or modify the agreement.
The City Council may also modify or suspend the provisions of the
development agreement if the City Council finds and determines implementation
of the agreement poses a health or safety risk to the community. The
City Council may refer the matter back to the Community Development
Department for further review or for report and recommendation. The
City Council may impose those conditions to the action it takes as
it considers necessary to protect the interests of the City and/or
the surrounding community. The decision of the City Council is final.
(Ord. 2004-1018 § 1, 2004)
A.
A building
permit may not be issued for any project approved pursuant to the
development agreement process, if at the time for issuance the development
agreement has been terminated.
B.
If
at the time a building permit is requested for any project approved
pursuant to the development agreement process there is a hearing pending
to determine the existence of default by the property owner or any
obligor under the terms of the development agreement, then in such
case no building permit may be issued without written approval of
the City Manager.
(Ord. 2004-1018 § 1, 2004)
