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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 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 17 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. -1- 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. -2- 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: -3- (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. -4- 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. -5- 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. -6- 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. -7- 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. -8- 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. -9- 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. -10