Malibu City Zoning Code
CHAPTER 17
64 DEVELOPMENT AGREEMENTS
§ 17.64.010 Purpose.
This chapter is intended to provide procedures and requirements for consideration of development agreements for the purposes specified in and as authorized by the Government Code. The planning commission may recommend and the city council may enter into a development agreement for the development of real property with any person having a legal or equitable interest in such property, or having written permission from a person having such interest.
(Prior code § 9510; Ord. 86 § 3, 1993)
§ 17.64.020 Initiation of hearings.
§ 17.64.030 Commission hearing and notice.
B.
Where an application for a development agreement is concurrently filed with an application for a zone change, development permit, conditional use permit, variance, tentative tract map, minor land division or other discretionary request requiring a public hearing, and may be feasibly processed together, all public hearings shall be concurrently held.
C.
In instances where the provisions of applicable ordinances would permit the modification of development standards during consideration of such development agreement, such standards may be concurrently considered where modification is requested.
(Prior code § 9512; Ord. 86 § 3, 1993; Ord. 93 §§ 79, 80, 1993)
§ 17.64.040 Findings and decision.
A.
The commission may recommend approval and the council may approve an application for a development agreement where it finds that the information presented by the applicant and/or obtained at a public hearing substantiates all of the following facts.
1.
That the proposed development agreement is consistent with the general plan;
2.
That the proposed development agreement complies with zoning subdivision and other applicable ordinances and regulations;
3.
That the proposed development agreement is consistent with the public convenience, general welfare and good land use practice, making it in the public interest to enter into the development agreement with the applicant;
4.
That the proposed development agreement will not:
a.
Adversely affect the health, peace, comfort or welfare of persons residing or working in the surrounding area;
b.
Be materially detrimental to the use, enjoyment or valuation of property of other persons located in the vicinity of the site, or
c.
Jeopardize, endanger or otherwise constitute a menace to the public health, safety or general welfare;
5.
That the proposed development agreement complies with the terms, conditions, restrictions and requirements of Section 17.64.050; and
6.
That in consideration of the rights accruing to the developer under the development agreement, the developer shall provide the city or the community with special benefits which might not otherwise be provided by the developer in the absence of an agreement.
B.
A recommendation by the commission shall be by resolution carried by the affirmative vote of not less than a majority of its members. Such recommendation may not be reconsidered by the commission except upon a referral by the council.
C.
The commission shall recommend denial where the information submitted and/or obtained at public hearing fails to substantiate the required findings to the satisfaction of the commission.
(Prior code § 9513; Ord. 86 § 3, 1993; Ord. 93 § 81, 1993)
§ 17.64.050 Terms, conditions, restrictions and requirements.
A.
A development agreement entered into by the council may include the following terms, conditions, restrictions and requirements; provided, however, that such terms, conditions, restrictions or requirements shall not be contrary to zoning, subdivision or other ordinances, laws or regulations applicable to the proposed development:
1.
The duration of the agreement, including a specified termination date if appropriate;
2.
The uses to be permitted on the property;
3.
The density or intensity of use permitted;
4.
The maximum height, size and location of buildings permitted;
5.
The reservation or dedication of land for public purposes to be accomplished, if any; and
6.
The time schedule established for periodic review as required.
B.
A development agreement may also include additional terms, conditions, restrictions and requirements for subsequent discretionary actions in addition to those provided above; provided, that such terms, conditions, restrictions and requirements do not prevent development of the lot or parcel of land included in such agreement for the uses and to the density or intensity of development set forth in the agreement, including but not limited to the following:
1.
The requirement of development schedules, providing that construction of the proposed development as a total project or in phases to be initiated and/or completed within a specified time period;
2.
The construction of public facilities required in conjunction with such development, including but not limited to vehicular and pedestrian rights-of-way, drainage and flood-control facilities, parks and other public facilities;
3.
The prohibition of one or more uses normally listed as permitted, accessory, or subject to permit in the zone where placed;
4.
The limitation of future development or requirement of specified conditions under which further development not included in the agreement may occur;
5.
The requirement of a faithful performance bond where deemed necessary to, and in an amount deemed sufficient to guarantee the faithful performance of specified terms, conditions, restrictions and/or requirements of the agreement. In lieu of the required bond, the applicant may deposit with the city clerk and assign to the city, certificates of deposit or savings and loan certificates or shares equal in amount to the same conditions as set forth herein. Such deposit and assignment shall comply with all the provisions and conditions of Chapter 3.04;
6.
The requirements of specified design criteria for the exteriors of buildings and other structures, including signs;
7.
The requirement of special yards, open spaces, buffer areas, fences and walls, landscaping and parking facilities, including vehicular and pedestrian ingress and egress;
8.
The regulation of nuisance factors such as noise, vibration, smoke, dust, odors, gasses, garbage, heat and the prevention of glare or direct illumination of adjacent properties;
9.
The regulation of operating hours and other characteristics of operation which might adversely affect normal neighborhood schedule and functions on surrounding property; and
10.
The payment of exactions or the provision of other public benefits.
C.
Unless otherwise provided by a development agreement, the general plan, zoning, subdivision, and other ordinances, rules, regulations and official policies governing permitted uses of land, density, and design, improvement and construction standards, and specifications applicable to property subject to a development agreement shall be those applicable to such development on the date of execution of the development agreement by the council; provided, however, that a development agreement shall not:
1.
Be construed to prevent the application of later adopted or amended ordinances, rules, regulations and policies in subsequent applications applicable to the property which do not conflict with such existing ordinances, rules, regulations and policies; or
2.
Prevent the approval, approval subject to conditions, or denial of subsequent development applications pursuant to such existing or later adopted or amended ordinances, rules, regulations and policies.
(Prior code § 9514; Ord. 86 § 3, 1993)
§ 17.64.060 Council hearing and notice.
After receipt of the commission's recommendation, the council shall hold a public hearing and shall give notice of such public hearing pursuant to the procedure set forth in Sections 17.04.160 through 17.04.230; provided, however, that if the commission has recommended against approval of such application, the action of the commission shall become final unless appealed in accordance with the provisions of Sections 17.04.160 through 17.04.230.
(Prior code § 9515; Ord. 86 § 3, 1993)
§ 17.64.070 Council action.
The council may approve, modify or disapprove a planning commission recommendation involving a development agreement; provided, that any modification of the development agreement by the council not previously considered by the planning commission during its hearing shall first be referred to the planning commission for report and recommendation, but the commission shall not be required to hold a public hearing thereon. Failure of the planning commission to report within 40 days after such referral, or such longer period of time designated by the council, shall be deemed to be an approval by the planning commission of the proposed modification.
(Prior code § 9516; Ord. 86 § 3, 1993)
§ 17.64.080 Approval by ordinance-Submission to voters.
Approval by the council of a development agreement shall be by ordinance. Any ordinance approving a development agreement concerning real property located in the city (whether a single parcel or multiple parcels) which is more than 30 acres in size and to be developed with a commercial or commercial/residential project shall be both approved by the city council and thereafter submitted to the voters of the city in accordance with California Elections Code Section 9222, and approval of both the city council and the voters shall be a condition precedent to the effectiveness of any such development agreement. Voter approval of a development agreement pursuant to this section shall constitute voter approval for any other city permit and approval, where such voter approval is required by any provision of city law for the activities described in the agreement, including but not limited to any requirement imposed by law for voter approval of a development plan pursuant to Section 17.02.040.
(Prior code § 9517; Ord. 86 § 3, 1993; Ord. 213 § 1, 2000)
§ 17.64.090 Execution of contract.
A.
No ordinance shall be adopted and the council shall not execute a development agreement until it has been executed by the applicant. If the applicant has not executed the agreement, or agreement as modified by the council, and returned the executed agreement to the city clerk within 30 days following council approval, the application shall be deemed withdrawn, and the council shall not adopt said ordinance nor the mayor execute said agreement. Such 30-day time period may be extended upon approval of the council.
B.
Not more than 10 days following the execution of a development agreement by the council the city clerk shall record with the county recorder a copy of the executed agreement.
(Prior code § 9518; Ord. 86 § 3, 1993)
§ 17.64.100 Subsequently enacted state and federal laws.
In the event that state or federal laws or regulations enacted subsequent to execution of a development agreement prevent or preclude compliance with one or more provisions of such agreement, the provisions of such agreement shall be deemed modified or suspended to the extent necessary to comply with the state or federal law or regulation.
(Prior code § 9519; Ord. 86 § 3, 1993)
§ 17.64.110 Enforcement.
A.
Unless and until amendment or canceled in whole or in part as provided in Section 17.64.120, a development agreement shall be enforceable by any party thereto notwithstanding any change in regulations which alters or amends the regulations applicable to development.
B.
The burden of a development agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.
(Prior code § 9520; Ord. 86 § 3, 1993)
§ 17.64.120 Amendment or cancellation.
A development agreement may be amended, or canceled in whole or in part, by mutual consent of all parties to the agreement or their successors in interest. Procedures for amendment or cancellation shall be the same as provided in this chapter for initiation and consideration of such agreement.
(Prior code § 9521; Ord. 86 § 3, 1993)
§ 17.64.130 Review for compliance.
A.
Every development agreement entered into by the council shall provide for periodic review of the applicant's compliance with such agreement by the director at a time interval specified in such agreement, but in no event longer than 12 months.
B.
The director shall determine on the basis of substantial evidence that the applicant or their successor in interest has or has not complied with the agreement. If, as a result of this review the director determines that the agreement is not being fulfilled, he or she shall notify the applicant or their successor in interest of his or her findings as required by law for the service of summons or by registered or certified mail, postage prepaid, return receipt requested, also indicating that failure to comply within a period specified, but in no event less than 30 calendar days, may result in legal action to enforce compliance, termination or modification of the agreement.
C.
It is the duty of the applicant or their successor in interest to provide evidence of good-faith compliance with the agreement to the director's satisfaction at the time of the review. Refusal by the applicant or their successor in interest to provide the required information shall be deemed prima facie evidence of violation of such agreement.
D.
If, at the end of the time period established by the director, the applicant or their successor in interest has failed to comply with the terms of the agreement or, alternatively, submitted additional evidence satisfactorily substantiating such compliance, the director shall notify the commission of his or her findings recommending such action as he or she deems appropriate, including legal action to enforce compliance or to terminate or modify the agreement.
(Prior code § 9522; Ord. 86 § 3, 1993)
§ 17.64.140 Violation of agreement-Commission review.
A.
Where the director notifies the commission that his or her findings indicate that a development agreement is being violated, a public hearing shall be scheduled before the commission to consider the applicant's reported failure to comply and the action recommended by the director. Procedures for conduct of such hearing shall be the same as provided in this chapter for initiation and consideration of a development agreement.
B.
If as a result of such hearing, the commission finds that the applicant or their successor in interest is in violation of a development agreement, it shall notify the council of its findings, recommending such action as it deems appropriate.
(Prior code § 9523; Ord. 86 § 3, 1993)
§ 17.64.150 Violation of agreement-Council action.
Where the commission reports the violation of a development agreement, the council may take one of the following actions:
A.
Approve the recommendation of the commission instructing that action be taken as indicated therein in cases other than a recommendation to terminate or modify an agreement;
B.
Refer the matter back to the commission for further proceedings with or without instructions; or
(Prior code § 9524; Ord. 86 § 3, 1993; Ord. 93 § 82, 1993)