This article is adopted under the authority of
Government Code
Section 65864 et seq.
(Zoning Code, Ch. 93, § 9301)
(a) Except as otherwise provided in this chapter, the director of community
development shall prescribe the form for each application, notice
and document provided for or required under this article for the preparation
and implementation of development agreements.
(b) The director of community development may require an applicant to
submit such information and supporting data as the city development
director considers necessary to process the application.
(Zoning Code, Ch. 93, § 9302; Ord. No. 2018-07R, § 7, 4-18-18)
(a) A fee or fee deposit established by city council resolution shall
be paid by the applicant at the time of filing the application.
(b) Nothing in this chapter shall relieve the applicant from the obligation
to pay any other fee for a city approval, permit or entitlement required
by this chapter.
(Zoning Code, Ch. 93, § 9303; Ord. No. 2018-07R, § 7, 4-18-18)
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. The term "applicant" includes
authorized agent. The community development director shall 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
processing the application, the director of community development
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.
(Zoning Code, Ch. 93, § 9304; Ord. No. 2018-07R, § 7, 4-18-18)
Each application shall be accompanied by the form of development
agreement proposed by the applicant. The city council 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 Section 65865.2 and may include any other provisions
permitted by law, including requirements that the applicant provide
sufficient security approved by the city attorney to ensure provision
of public facilities.
(Zoning Code, Ch. 93, § 9305)
(a) The director of community development shall review the application
and may reject it if it is incomplete or inaccurate for processing.
If he or she finds that the application is complete, he or she shall
accept it for filing.
(b) The director of community development shall review the application
and proposed agreement and shall prepare a report and recommendation
to the planning commission on the agreement.
(c) The director of community development shall forward a copy of the
application and agreement to the city attorney for review. The city
attorney shall prepare a report and recommendation to the planning
commission on the agreement.
(Zoning Code, Ch. 93, § 9306; Ord. No. 2018-07R, § 7, 4-18-18)
The director of community development shall transmit the application
to the planning 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 this chapter. The application for a
development agreement may be considered concurrently with other discretionary
permits for the project.
(Zoning Code, Ch. 93, § 9307; Ord. No. 2018-07R, § 7, 4-18-18)
After a pubic hearing, the planning commission shall consider
the application and prepare a report and recommendation for the city
council. The report and recommendation shall include findings on the
matters substantially set to the same form as set forth in section
33-1138(b) of this article. This report and recommendation shall be
forwarded to the city clerk who shall set the matter for public hearing
before the city council.
(Zoning Code, Ch. 93, § 9308; Ord. No. 2018-07R, § 7, 4-18-18)
(a) After the city council completes the public hearing, it may approve,
modify or disapprove the development agreement. It may refer matters
not previously considered by the planning commission during its hearing
back to the planning commission for report and recommendation. The
planning commission need not hold a public hearing on matters referred
back to it by the city council.
(b) The city council shall not approve the development agreement unless
it finds that the agreement:
(1) Is consistent with the objectives, policies, general land uses and
programs specified in the general 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 and all other provisions of Chapter
33 of this code;
(3) Is in conformity with public convenience, general welfare and good
land use practices;
(4) Will not be detrimental to the health, safety and general welfare;
(5) Will not adversely affect the orderly development of property or
the preservation of property values;
(Zoning Code, Ch. 93, § 9309; Ord. No. 2018-07R, § 7, 4-18-18)
If the city council approves the development agreement, it shall
adopt an ordinance approving the agreement and directing the mayor
to execute the agreement after the effective date of the ordinance
on behalf of the city. Before execution, each agreement shall be approved
as to form by the city attorney.
(Zoning Code, Ch. 93, § 9310)
(a) Notice of public hearing required by this chapter shall be given
as provided in section 33-1300 of Article 61.
(b) The notice requirement referred to in subsection
(a) is declaratory of existing law (
Government Code Sections 65867, 65854, 65854.5 and 65856). If state law prescribes a different notice requirement, notice shall be given in that manner.
(c) The failure of any person to receive notice required by law or these
regulations does not affect the authority of the city to enter into
a development agreement.
(Zoning Code, Ch. 93, § 9311; Ord. No. 2018-07R, § 7, 4-18-18)
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 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 not presumption that error is prejudicial or
that injury was done if error is shown.
(Zoning Code, Ch. 93, § 9312)
(a) 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.
(b) 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 city 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 the giving of public notice of the
hearing to consider the amendment or cancellation.
(Zoning Code, Ch. 93, § 9313)
(a) Within 10 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
in good faith with the terms or conditions of the agreement the city
clerk shall have notice of such action recorded with the county recorder.
(Zoning Code, Ch. 93, § 9314)
(a) The city council shall review the development agreement every 12
months from the date the agreement is entered into.
(b) The time for review may be shortened either by agreement between
the parties or by initiation in one or more of the following ways:
(1) Recommendation of the community development director;
(2) Resolution of intention by the planning commission;
(3) Resolution of intention of the city council.
(c) The director of community development shall begin the review proceeding
by giving written notice that the city council intends to undertake
a periodic review of the development agreement to the property owner.
He or she shall give the notice at least 10 days in advance of the
time at which the matter will be considered by the council.
(d) The city council may refer the matter to the planning commission
for review and recommendation.
(Zoning Code, Ch. 93, § 9315; Ord. No. 2018-07R, § 7, 4-18-18)
(a) The city council or the planning commission, if the matter has been referred pursuant to subsection
(d) of section 33-1144 of this article, shall conduct a public review 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.
(b) 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.
(c) 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,
no other action is necessary.
(d) If the city council finds and determines on the basis of substantial
evidence that the applicant has not complied in good faith with the
terms and conditions of the agreement during the period under review,
the council may initiate proceedings to modify or terminate the agreement.
(Zoning Code, Ch. 93, § 9316; Ord. No. 2018-07R, § 7, 4-18-18)
(a) If upon a finding under subsection (d) of section 33-1145 of this
article the city council determines to modify or terminate the agreement,
the city council shall give notice to the property owner of its intention
so to do. The notice shall state:
(1) The time and place of the hearing;
(2) A statement as to whether or not the city council proposes to terminate
or modify the development agreement;
(3) Other information which the city council considers necessary to inform
the property owner of the nature of the proceedings.
(b) 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
city council may refer the matter to the planning commission for further
proceedings 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. The decision of the city council
shall be final.
(Zoning Code, Ch. 93, § 9317)
In no event shall the applicant or his or her successors in
interest be entitled to any damages against the city upon termination
of the agreement.
(Zoning Code, Ch. 93, § 9318)
Approval and construction of a portion or phase of a development
pursuant to the agreement shall not vest any rights to construct the
remainder or any other portion of the development nor create any vested
rights to the approval thereof if the agreement is terminated as provided
in this article.
(Zoning Code, Ch. 93, § 9319)
The city council of the City of Escondido reserves the right
to terminate or modify any development agreement after a public hearing
if such termination or modification is reasonable and necessary to
protect the public health, safety or welfare.
(Zoning Code, Ch. 93, § 9320)