Ord 177O~INANCE NO. 177
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA
ESTABLISHING ~m.~ AbD REQU~S
FOR CONSID}~ATION OF DE~.:ImPMENT AC~,:~m4ENTS
UNDER ~3VERb~T (/)DE SECTION 65864-65896.5
AUTHORIZING ~HE ADOPTION OF PROCWnU~
WHEREAS, Government Code Section 65864-65869.5 authorizes cities and coun-
ties to enter into binding development agr~-~ents with persons having legal or
equitable interests in real property for the development of such property and
authorized the City of Poway to establish pr~edures for consideration of appli-
cations for such agr~--nents; and
WHEREAS, a set of procedures and requirements for consideration of develop-
m~nt agreements has ~n proposed, has ~cn the subject of public h~e~r, ings, and
it has been rec<mm~Dx~ed that the City of Poway adopt such regulations, and
V~IEREAS, it is in the public interest to do se and the public health, safety
and welfare will be prated thereby;
I~iEREAS, the City Council has considered the environmental assessment and
finds there to be no signifi~nt environmental impact and hereby issues a nega-
tive declaration;
NOW, THEREFORE, the City Council of the City of Poway, California, does
hereby ordain as follows:
The procedures and requirements for the consideration of develol~nt
agreements as set forth in E~hibit A attached to this ordinance and ~de a
part of this reference as adopted.
The city Manager is instructed to prepare and adopt such appli~tion forms,
checklists and such other documents as considered necessary to impl~m~_nt the
procedures and requirements.
~FFEC~IVE DATE: This ordinance shall take effect and be in force thirty
(30) days after the date of its pas~ge; and the city Clerk of the City of P~y
is hereby authorized to use sun, nary publication procedures pursuant to
Government Code Section 36933 utilizing the Poway News-Ohieftain, a newspaper of
general circulation published in the City of P~y.
Ordinance No. 177
Page 2
Introduced and first read at a regular m~cting of the City Council of the
City of Poway held the 22nd day of October, 1985, and ther~fter PASSED ASD
ADOPTED at a regular meeting of said City Council held the 5th day of November,
1985, by the following roll call vote:
AYES: COUNCI~: [{RUSE, ORAV~C, SHEPARDSON, TARZY, ~ERY
Robert-C. ~ery, Mayo~..~
Marjorie 'K. Wahlsten, City Clerk
Exhibit A
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DEVELOPMENT AGRR~NTP~X~JLATIONS
FOR OONSIDERATION
.53.010
.53.011
.53.012
.53.013
.53.014
.53.015
.53.020
.53.021
.53.022
.53.023
.53.024
.53.030
.53.031
.53.040
.53.041
.53.050
.53.060
.53.061
.53.062
.53.063
.53.064
Applications
Applications
Applications
Applications
Applications
Applications
- Authority for adoption
- Forms and information
- Fees
- Qualifications as an applicant
- Proposed form of agreement
- Review of application
Notice and Hea_ring - Duty to give notice
Notice and Hearing - Requir~ents for form and time of notice
of intention to consider adoption of development agrc~ment
Notice and H~_ring - Failure to receive notice
Notice and Hearing - Rules governing conduct of hearing
Notice and Hearing - Irregularity in proceedings
Standards of Review, Findings and Decisions - Decision by City
Council
Standards of Review, Findings and Decisions - Approval of deve-
lopmentagreement
Amendment and Cancellation of Agrc~.---aent by Mutual Consent -
Initiation of amendment or cancellation by mutual consent
Amendment and Cancellation of Agrc~,----~nt by Mut,~al Consent -
Procedure
Recordation of development agrc~.~ent, amendment or cancellation
Periodic Review - Time for and initiation of review
Periodic Review - Notice of periodic review
Periodic Review - Public hearing
Periodic Review - Findings upon public hearing
Periodic Review - Procedure upon findings
.53.070 Modification
termination
.53.071 Modification
mination
or Termination - Proceedings upon modification or
or Termination - Rearing on modification or ter-
17.53.010 A~plications - Authorit~ for adoption. These regulations are
adopted under the authority of Government Code Section 65864-65869.5, 1985
edition.
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17.53.011 A~olications - Forms and information.
(a)
The Department of Planning Services shall prescribe the form for each
application, notice and documents provided for or required under these
regulations for the preparation and implementation of develoE~nent
agre~_nts.
(b)
The Department of Planning Services may require an applicant to su~it
such information and supporting data as the Director considers
necessary to process the application.
17.53.012 A~lications - Fees. The City Council shall by separate resolu-
tion fix the schedule of fees and charges imposed for the filing and pro-
cessing of each application and doctm~t provided for or required under
these regulations.
17.53.013 A~lications - Qualification as an applicant. Only a c~mlified
applicant may file an application to enter into a development agreement. A
qualified applicant is a person(s) who has the entire legal interest in the
real property or a person(s) who has the entire equitable interest in the
real property and is joined by the legal interest holder in the application.
The Director of Planning Services shall require an applicant to show proof
of interest in the real property in the form of a title report by a
California Title Insurance Ccmpany and proof of the authority of the agent,
if any, to act for the applicant. Before processing the application, the
Director of Planning Services 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.
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17.53.014 A~lications - Proposed form of agrc~--ment. Each application
shall be accompanied by the City's standard form of development agreement
and including any specific proposals for changes in or additions to the
language of the standard form by the applicant.
17.53.015 A~lications - Revie~ of application. The Director of Planning
Services shall endorse on the application the date it is received. The
Director shall review the application and may reject it if it is incomplete
or inaccurate for processing within 30 calend~r days of the date it is
received. If the Director finds that the application is complete it shall
be accepted for filing. The Director shall review the application and
determine the additional requirements necessary to complete processing of
the agreement. After receiving the required information, staff shall pre-
pare a staff report and r~dation to the City Council stating whether
or prat the agreement as proposed or in an amended form would be consistent
with ordinances and policies of the City of Poway, the general plan and any
applicable specific plan or planned community.
17.53.020 Notice and Hearing - Duty to give notice. The Director of
Planning Services shall give notice of intention to consider adoption of
development agr~-ment and of any other public hearing required by law or
this chapter.
17.53.021 Notice and Hearin~ - Requirements for form and time of Dmtice of
intention to consider adoption of development agrc~---ment.
(a) Form of notice. The form of the notice of intention to consider adop-
tion of development agr~."~nt shall contain:
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(1) the time and place of the hearing;
(2) a general explanation of the matter to be considered including a
general description of the area affected; and
(3) other information required by specific provision of these regula-
tions or which the Director of Planning Services considers
necessary or desirable.
(b) Time and manner of notice.
(c)
(d)
(1)
(2)
The time and manner of giving notice is by:
Publication or ~ostinq. Publication at least once in a newspaper
of general circulation, published and circulated in the City of
Poway.
Mailing. Mailing of the notice to all persons shown on the last
equalized assessment roll as owning real property within 500 feet
of the property which is the subject of the proposed develo[m~_nt
agreement. If the number of owners to whom notice is to be mailed
is greater than 1,000, the Director of Planning Services may as an
alternative provide notice in the manner set forth in 65090-65095
of the Goverr~ent Code, 1985 edition.
A~itional notice. The City Council may direct that notice of the
public hearing to be held before it shall be given in a runner that
exceeds the notice requirements prescribed by state law.
Declaration of existing law. The notice requirements referred to in
subsections (a) and (b) are declaratory of existing law (Government
Code Section 65867 and Subsection 65854, 65854.5 and 65856 as incor-
poration by reference). If state law prescribes a different notice
requir~m~ent, notice shall be given in that manner.
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17.53.022 Notice and Hearing - Failure to receive notice. The failure of
any person entitled to notice required by law or these regulation does not
affect the authority of the City to enter into a develoI~ent agreement.
17.53.023 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. Each person interested in the matter shall be given an oppor-
tunity to be heard. The applicant has the burden of proof at the public
hearing on the proposed develoim~_nt agrc~ment.
17.53.024 Notice and Hearing - Irregularity in proceedings. No action,
inaction or recoamendation regarding the proposed develoi~ent agrc~---ment
shall be held void or invalid or be set aside by a court by reason of any
error, irregularity, informality, neglect or Gmission ("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 b~ve ~c~n probable if the error
had not occurred or existed. There is not prestm~tion that error is preju-
dicial or that injury was done if error is shown.
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17.53.030 Standards of Review, Findings and Decisions - Decision by City
Council.
(a)
After the City Council c(x~31etes the public hearing, it may not approve
the develo~aent agr~-~Jaent unless it finds that the provisions of the
agreement are consistent with the general plan and any applicable spe-
cific plan and finds that the develo~xaent agreement:
(1)
is consistent with the objectives, policies, general land uses and
programs specified in the general plan and any applicable specific
plan or planned coaxaunity;
(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) the development will not be detrimental to the health, safety and
general welfare,
(5) the develo~agnt will not adversely affect the orderly develo[~nt
of property or the preservation of property valued.
17.53.031 Standards of Review, Findings and Decisions - Approval of deve-
lopment agrc~."~_nt. If the City Council approves the develo~aent agrc~.----~_nt,
it shall do so by adoption of an ordinance, or by resolution if authorized
by state law.
After the ordinance or resolution approving the development agreement takes
effect, the City may enter into the agrc~---ment.
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17.53.040 Amendment and Canca~]]ation of A~re~n=nt b~ Mutual Consent -
Initiation of amendment or cancellation. Either party may propose an amend-
ment to or cancellation in whole or in part of the development agreement
previously entered into.
17.53.041 Amendment and Can~llation of Agre~nt by Mut,~ml Consent -
Procedure. The procedure for proposing and adoption of an amendment to or
cancellation in whole or in part of the development agr~---~ent is the same as
the procedure for entering into an agreemant in the first instance.
However, where the City initiates the proposed amendment to or cancellation
in whole or in part of the develo[a~ent agrc~---ment, it shall first give notice
to the property owner of its intention to initiate such pr~dings at least
30 calenda~r days in advance of the giving of notice of intention to consider
the amendment or cancellation required by Section 17.53.021.
17.53.050 Recordation of develo~r~e~t agr.-~.~n=nt ~,~n~m~nt or canc~!!ation.
(a)
Within 10 calendar days after the City enters into the develola~ent
agrc~---aent, the City Clerk shall have the agreement recorded with the
County Recorder.
(b)
If the parties to the agrc~---ment 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 agrc_---ment as provided in
Government Oode 65865.1 for failure of the applicant to co~ly 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.
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17.53.060 Periodic Review - Time for and initiation of review. The City
shall review the develolxaent agreement every 12 months from the date the
agre~nent is entered into.
The time for review may be modified either by agrc~---ment between the parties
or by initiation in one or more of the following ways:
(a) recc~me~dation of the City staff;
(b) affirmative vote of at least three members of the City Council.
17.53.061 Periodic Review - Notice of ~eriodic review. The Director of
Planning Services shall begin the review proceeding by giving notice that
the City intends to undertake a periodic review of the development agreement
to the property owner. The Director of Planning Services shall give the
notice at least 10 calendar days in advance of the time at which the matter
will be considered by the City Council.
17.53.062 Periodic Review - Public hearing. The City Council shall conduct
a public hearing at which the property owner must d~onstrate good faith
compliance with the terms of the agrcc.~_nt. The burden of proof on this
issue is upon the property owner.
17.53.063 Periodic Review - Findings upon public 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 agrc~---nent.
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17.53.064 Periodic Review - Procedure upon findings.
(a)
It the City 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 concl,,ded.
(b)
If the City 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 agr~-~uent during the period under review, the
City m~y modify or terminate the agrc~,~ent.
17.53.070 Modification or Termination - Proc~ed~ings u~on modification or
termination. If, upon a fiD~ting under Section 17.53.064 (b), the City
determines to proceedwithmodification or termination of the agreement, the
City shall give notice to the property owner of its intention to do so. The
notice shall contain:
(1) the time and place of the h~ring;
(2) a stat~aent as to whether or not the City proposes to terminate or to
modify the develolm~ent agre~uent;
(3) other information which the City considers necessary to infom the pro-
perty owner of the nature of the proc~ccding.
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17.53.071 Modification or Termination - H~rin~ on modification or ter-
mination. At the time and place set for the hearing on ~dification or ter-
mination, the property owner shall be given an opportunity to be heard. The
City Council may impose those conditions to the action it takes as it con-
siders necessary to protect the interests of the City. The City Council may
modify, amend or terminate the development agrc~--~ent if the applicant has
not complied in good faith with the terms of the agreement or upon any other
grounds authorized by state law. The decision of the City Council is
final.
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