The provisions of this chapter will provide assurance to applicants for development projects that, upon approval of a project, the applicant may proceed with the project in accordance with the policies, rules and regulations, and subject to conditions of approval in effect at the time of approval. Development agreements entered into pursuant to this chapter will strengthen the public planning process, encourage private participation in comprehensive planning, reduce the economic costs of development, and provide a level of benefit to the county that exceeds the benefits normally derived from development projects. These regulations are adopted for the purposes authorized and under the authority of Government Code Sections 65864 through 65869.5.

(Ord. G-5697 § 2 (part), 1991)

A development agreement may be authorized for any development containing a minimum of five (5) gross acres. The planning director may grant a waiver to the project size eligible for a development agreement if the director determines that the consideration of the development agreement, in the particular case, is in the best interest of the county.

(Ord. G-6077 § 353, 1994: Ord. G-5697 § 2 (part), 1991)

A.

The planning director shall prescribe the form for each application, notice and document provided for or required by these regulations for the preparation and implementation of development agreements.

B.

The director may require an applicant to submit such pertinent information and supporting data as he considers necessary to process the application. Adequate funds to secure costs for hiring consultants, including attorney services, may also be required.

C.

The application shall be accompanied by a fee(s) in an amount to be set by the board of supervisors.

D.

The applicant shall present to the director the written consent to the development agreement of all parties having any record title interest in the real property which is subject to the development agreement, including mineral rights owners who have the right of surface entry. The board of supervisors may waive the requirement for the signatures of mineral or equitable rights owners if a written request is filed in conjunction with the filing of a proposed development agreement. All such requests shall be accompanied by documentation that adequately supports all of the following findings:

1.

Waiver of the requested signatures of the owners of interest can be determined to be in the public interest that development not be prevented;

2.

It can be determined that the surface owner has exhausted all reasonable means for locating owners of interest and obtaining their signatures;

3.

In the case of requests for waiver of signatures of mineral rights owners, in addition to the above findings, it can be determined that the proposed development agreement provides for future development of mineral rights through the establishment of a zoning district, pursuant to the Kern County zoning ordinance, that permits the exploration and extraction of the underlying minerals as a matter of right.

E.

The applicant shall provide sufficient information to enable the director to perform an initial study pursuant to Public Resources Code Section 21160.

F.

The applicant shall provide sufficient information to establish that the project is consistent with the Kern County general plan and any applicable specific plan.

G.

The applicant shall submit a proposed development agreement which shall include the following:

1.

A description of the property sought to be covered by the agreement, including a legal description;

2.

A description of the proposed uses, height and size of buildings, density or intensity of use, and provision for reservation or dedication of land for public purposes;

3.

Conditions, terms, restrictions, and requirements for subsequent county discretionary actions;

4.

Proposed time when construction would be commenced and completed, including a phasing plan;

5.

Proposed public benefits inclusive of an implementation phasing plan;

6.

Termination date for the agreement, not to exceed ten (10) years from the date of execution, except where a longer time is necessary to fund debt financing requirements for public facilities;

7.

A description of all local permits required for project implementation;

8.

A proposed schedule for annual review which details what progress shall be expected to be completed during the course of each year of the proposed development agreement;

9.

An agent representing the legal ownership for all property subject to the proposed development agreements;

10.

A description of the infrastructure, public facilities and public services required to serve the proposed development and a description of how these facilities and services will be provided.

H.

If the development agreement requires applicant financing of necessary excess public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

I.

All development agreements shall contain an indemnity clause requiring the developer to indemnify and hold the county harmless against claims arising out of any or all prior or subsequent related development approvals, including all legal fees and costs.

J.

A development agreement is a contract that is negotiated and voluntarily entered into by county and developer and may contain any additional or modified conditions, terms, or provisions agreed upon by the parties, including sanctions and failure to meet requirements.

K.

A development agreement may include conditions relating to financial guarantees for performance of obligations stated in the agreement.

(Ord. G-7118 §§ 2 and 3, 2004; Ord. G-6077 § 354, 1994; Ord. G-5697 § 2 (part), 1991)

Only a qualified applicant or his authorized agent may file an application pursuant to this chapter. A qualified applicant is a person who has a legal or an equitable interest in the real property which is the subject of the development agreement. This interest must be such that the applicant has or will have control of the use of the property during the proposed term of the agreement. All applicants shall submit proof of their interest in the real property and of the authority of the agent, if any, designated to act for the applicant, including a current title report from a reputable title insurance company or other equivalent evidence to verify the legal or equitable interest of the applicant in the property. In the case of multiple legal or multiple equitable ownership, if the applicant is a legal owner, all legal and equitable owners must sign as a party or as consenting to the development agreement, and if the applicant has only an equitable interest, all equitable owners must sign as a party or as consenting to the development agreement, unless their signatures are waived as provided herein. Signatures will each be appropriately notarized to facilitate recording.

(Ord. G-7118 § 5, 2004: Ord. G-6077 § 356, 1994: Ord. G-5697 § 2 (part), 1991)

A.

The planning director shall review each application to determine whether it is complete and accurate. If the application is found to be incomplete or inaccurate, the director shall reject the application and inform the applicant of the items necessary to properly complete the application. The director shall reject any application where the development agreement would be inconsistent with the general plan, any applicable specific plan, zoning, or any other land use regulations applicable to the subject property. If the application for a development agreement is submitted in conjunction with an application for other land use approvals, the proposed development agreement shall be reviewed for consistency with the existing and, separately, the proposed land use approvals.

B.

If the planning director determines that the application is complete and accurate, copies of the application shall be forwarded to each appropriate county department, applicable outside agency, and any agency or individual who requests, in writing, a copy of the application. The director shall specify a time period for department, agency and individual responses to the application to be submitted to the director. Following review of said responses and after consultation where appropriate, the director shall prepare a staff report and recommendation to the board of supervisors.

(Ord. G-6077 § 357, 1994: Ord. G-5697 § 2 (part), 1991)

A.

A public hearing shall be held by the board of supervisors on any completed application for a development agreement subject to the same proceedings as provided for changes in zone district classification and, more specifically, as specified by Section 19.102.210.

B.

The failure of any person, entitled to notice required by state law or this chapter, to receive notice as a result of mistake or inadvertence does not affect the authority of the county to enter into a development agreement.

C.

The public hearing shall be conducted in accordance with the procedural standards adopted under California Government Code Section 65804 for the conduct of zoning hearings. 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.

D.

No action, inaction, or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by the 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 procedures whatever unless after an examination of the entire case, 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.

(Ord. G-5697 § 2 (part), 1991)

A.

At the public hearing, the board of supervisors shall conditionally or unconditionally approve, disapprove, or approve a modified agreement, and if approved shall adopt an ordinance approving the agreement, which ordinance approval shall automatically authorize the chairman of the board of supervisors to execute the agreement on behalf of the county. In acting to approve a development agreement, the board of supervisors shall make the following findings:

1.

That the proposal is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan;

2.

That the proposal is compatible with the uses authorized in, and the regulations prescribed for, the area in which the real property is located;

3.

That the proposal will not be detrimental to the health, safety and general welfare of the public;

4.

That the proposal is in the public interest and accrues a public benefit not usually obtained through the land development approval process without a development agreement;

5.

That the proposal is consistent with the provisions of Government Code Sections 65864 through 65869.5 and all other applicable laws and regulations.

B.

Within ten (10) days following complete execution of a development agreement, the clerk of the board of supervisors shall record with the county recorder a fully executed copy of the development agreement and ordinance. This ten (10) day period shall commence from the date the development agreement is fully executed by the applicant and by the chairman of the board of supervisors. The agreement shall be binding upon, and the benefits of the agreement shall inure to, the parties and all successors in interest to the parties to the agreement.

C.

If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in California Government Code Section 65868, or if the board of supervisors 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 clerk of the board shall have notice of such action recorded with the county recorder.

(Ord. G-7118 § 6, 2004; Ord. G-5697 § 2 (part), 1991)

A.

Any party to a development agreement may propose an amendment to or cancellation of the agreement in whole or in part.

B.

Except as otherwise provided in this section, the procedure for proposing and adopting an amendment to, or a cancellation in whole or in part of, the development agreement shall be the same as the procedure for entering into an agreement in the first instance. However, if the county initiates a proposed amendment to or a cancellation in whole or in part of the agreement, the county shall first give written notice to each party other than the county who executed the agreement of its intention to initiate such proceedings, not less than thirty (30) days in advance of giving public notice of the hearing to consider such amendment or cancellation.

C.

Any amendment to the development agreement which does not relate to the duration of the agreement, permitted uses of the property, density, or intensity of use, height, or size of proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions, and requirements relating to subsequent discretionary actions related to design, improvement and construction standards and specification, or any other condition or covenant relating to the use of the property shall not require a noticed public hearing before the parties may execute an amendment to the agreement.

(Ord. G-5697 § 2 (part), 1991)

A.

The planning director shall review the development agreement annually to ascertain the good faith compliance by the property owner with its terms.

B.

The developer shall initiate the required annual review by submitting a written request at least sixty (60) days prior to the review date specified in the agreement. The property owner shall also provide evidence as determined necessary by the planning director to demonstrate good faith compliance with the provisions of the development agreement. The burden or proof by substantial evidence of compliance is upon the property owner.

C.

If the planning 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.

D.

If the planning 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 recommend that the board of supervisors modify or terminate the agreement. The written decision of the director recommending modification or termination of the agreement shall be delivered to the property owner not later than ten (10) days after the final action of the director. The director shall then set the matter for public hearing before the board of supervisors in the manner set forth in Section 19.103.060.

E.

If as a result of an annual review it finds and determines, on the basis of substantial evidence, that the owner or successor in interest has not complied in good faith with the terms and conditions of the agreement, the board of supervisors may terminate or modify the agreement. The decision of the board of supervisors is final.

(Ord. G-6077 § 358, 1994: Ord. G-5697 § 2 (part), 1991)

A.

In the event that a development agreement is cancelled or terminated, all rights of the property owner or successors in interest under the development agreement shall terminate. The county may, in its sole discretion, determine to retain any and all benefits, including, but not limited to, reservations or dedications of land, and payments of fees, received by the county.

B.

Notwithstanding the above paragraph, any termination of the development agreement shall not prevent the property owner from completing a building or other improvements authorized pursuant to a valid building permit, but the county may take any action permitted by law to prevent, stop, or correct any violation of law occurring after cancellation of the development agreement.

(Ord. G-5697 § 2 (part), 1991)

A.

Unless otherwise provided by the development agreement, the county's rules, regulations, and official policies governing permitted uses of the property, density, and design; and improvement and construction standards and specifications applicable to development of the property shall be those county rules, regulations, and official policies in force on the effective date of the development agreement; however, there is no absolute vesting as to timing and phasing of any project, except as specifically authorized in the development agreement.

B.

A development agreement shall not prevent the county, in subsequent actions applicable to the property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. Additionally, a development agreement shall not prevent the county, in subsequent actions applicable to the property, from applying new rules, regulations and policies which the county determines are required for the public health, safety or welfare, except as otherwise expressly provided for in the development agreement.

C.

A development agreement shall not prevent the county from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.

D.

All development agreements shall be subject to the regulations and requirements of the laws of the state of California, the Constitution of the United States, and any codes, statutes or executive mandates, and any court decisions, state or federal, thereunder. In the event that any such law, code, statute, mandate or decision made or enacted after a development agreement has been entered into prevents or precludes compliance with one (1) or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such law, code, statute, mandate or decision.

E.

All development agreements entail and consist of a separate procedure from other land use planning procedures and shall not take the place of the zoning ordinance, the general plan, a specific plan, development plan, conditional use permit, subdivision approval, building permit or any other county planning function. Public hearings on a proposed development agreement may, but need not, be held concurrently with the public hearings on related land use approvals.

F.

This chapter governs the interpretation of any development agreement enacted under this chapter.

G.

The procedures for enforcement, modification or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are nonexclusive. A development agreement may be enforced, modified or terminated by any manner otherwise provided by law or by the terms of the development agreement. However, the developer's sole remedy shall be injunctive, not damages. The agreement shall not provide for any form of binding arbitration.

H.

Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void or unenforceable, the remaining provisions of this chapter and development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in a development agreement.

I.

Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure; and judicial review of any county action taken by the county pursuant to this chapter, other than initial approval of a development agreement, shall be writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure. The use of the term "substantial evidence" in this chapter with respect to the quantum of proof necessary in connection with a finding of noncompliance is not intended to limit, nor impose a standard of review upon, any court pursuant to a proceeding initiated for that purpose.

J.

Any action or proceeding to attack, review, set aside, void or annul any decision of the county taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety (90) days after the date of the decision.

(Ord. G-5697 § 2 (part), 1991)