A.   Purpose: It is the purpose of this chapter to provide a procedure by which the rezoning of certain property may be conditioned upon the developer or owner of the property making certain written commitments concerning the use, development or annexation of a property. The use of the written commitments provided for in this chapter might allow a specific project, utility connection or use of real property in an area which may not be appropriate for all uses allowed in that particular zone. The written commitments concerning the development or use of the property will offset identified problems to the extent that the proposed rezoning may then be acceptable. The use of the procedures provided in this chapter is discretionary with the city and in agreement with the comprehensive plan.

   B.   Criteria For Written Commitments: The development agreement and the written commitments provided for in this chapter shall be accepted as conditions attached to the rezoning of the property if they meet the following criteria: 1) the rezoning itself must give rise to the need for the condition; 2) such conditions shall have a reasonable relation to the rezoning; 3) all such conditions shall be in conformity with the comprehensive plan; 4) such conditions shall be capable of being readily and effectively enforced by the city at the time of development of the property and thereafter; 5) such conditions shall be deemed necessary and sufficient to offset identified problems caused by the rezoning in a manner not available by traditional methods.

   C.   Application: Any person submitting a written request or application to the city for the rezoning of a parcel of property may, at his or her option, submit with the application a proposed development agreement for the property, including a list of commitments concerning the development and use of the property. The commission or the city council, in considering a request to rezone property, may suggest to the owner or developer of the property that the application or request to rezone the property should be accompanied by a development agreement with commitments for the development of the property. The proposed development agreement and the commitments shall be considered a part of the application to rezone the property and a summary of the proposed agreement and commitments shall be included in any notices required for consideration of the rezoning application, either before the commission or the city council.

   D.   Development Agreements And Commitments: Development agreements and commitments shall be signed by all of the owners of the property, recorded at the county recorder's office and shall run with the land. If the proposed developer of the property is a contract purchaser, such purchaser shall also be made a party to the agreement and shall sign the same. The development agreement shall include the following:

      1.   The specific proposed land use for the property.

      2.   The development plan for the property, including the location of all structures, parking lots, landscaping, utilities and all other improvements.

      3.   The proposed use of all structures.

      4.   The date construction will commence, and, if construction is proposed in phases, the date construction will commence for each phase.

      5.   The date construction will be completed, and, if construction is proposed in phases, the date each phase shall be completed and the respective uses commenced.

      6.   A commitment for future annexation, hookup to city services, placement of sidewalk, curb and gutter or street.

      7.   Commitments concerning the future use of the property which will be binding on all future owners.

      8.   Any other matter required by the city that is agreed to by the owner or developer of the property.

      9.   A provision that, upon the failure of the owner, each subsequent owner or any other person acquiring an interest in the parcel to comply with the conditions and commitments in the development agreement, the agreement may be terminated and the zoning designation upon which the use is based reversed or, if applicable, the city may contract for the work and bill the property owner or place the amount on the tax rolls for collection. A written commitment shall be deemed written consent to rezone the property upon the failure of conditions imposed by the commitment in accordance with provisions of this chapter.

Development agreements and commitments shall be properly executed and acknowledged and shall be recorded in the office of the county recorder of Elmore County, Idaho, and shall become an encumbrance upon the real property.

   E.   Approval Of Development Agreement And Commitments: The city has not obligated itself to recommend or adopt a proposed zoning change, development agreement or commitment by the adoption of this chapter. The approval and acceptance of a development agreement and commitments shall be at the sole discretion of the city. The city council, may, by ordinance adopted or amended in accordance with the notice and hearing provisions provided under section 67-6509, Idaho Code, require or permit as a condition of rezoning that an owner or developer make a written commitment concerning the use or development of the subject parcel. The governing board shall adopt ordinance provisions governing the creation, form, recording, modification, enforcement and termination of conditional commitments. Such commitments shall be recorded in the office of the county recorder and shall take effect upon the adoption of the amendment to the zoning ordinance. Unless modified or terminated by the governing board after a public hearing, a commitment is binding on the owner of the parcel, each subsequent owner, and each other person acquiring an interest in the parcel.

   F.   Compliance With Agreement And Commitments: Unless modified or terminated by the city council as provided in this chapter, a development agreement and commitments are binding on the owner of the parcel, each subsequent owner and any other person acquiring an interest in the parcel. A development agreement or commitment is binding on the owner of the parcel even if it is unrecorded; however, an unrecorded commitment is binding on a subsequent owner or other person acquiring an interest in the parcel only if that subsequent owner or other person has actual notice of the agreement or commitment.

   G.   Modification Of Agreement And Commitments: A development agreement and commitments may be modified only with the permission of the city council. Any modification must comply with this section.

   H.   Termination Of Agreement And Commitments: Upon a preliminary finding by either the commission or the city council that the owner, subsequent owner or other person acquiring an interest in the parcel of property has failed to comply with the conditions in the development agreement or commitments, a hearing shall be held by the commission after notice pursuant to Idaho Code. The commission shall then make a recommendation to the city council. The city council shall then hold its own hearing after notice pursuant to Idaho Code.

The city shall: 1) find that the owner or developer is in compliance with the development agreement and commitments; or 2) find that the owner or developer is not in compliance with the development agreement and commitments, and after the notice and hearing requirements of this section for modification have been met, modify the development agreement and commitments; or 3) find that the owner is not in compliance with the development agreement and commitments and terminate the agreement and commitments.

If the city council finds that the owner or developer, subsequent owner or developer, or other person acquiring an interest in the parcel, has failed to comply with the development agreement or commitments, and continues to fail to do so after sixty (60) days' notice by the city to comply, then the development agreement and commitments shall be terminated and the zoning designation for the property shall revert to the prior zoning classification. All uses of the real property that are inconsistent with the initial zoning classification shall cease and shall not be considered a preexisting use.

   I.   Enforcement: Development agreements and commitments may be enforced by the city through any means deemed to be appropriate, including, but not limited to, specific performance, injunctive relief, monetary damages, criminal penalties and/or termination as provided herein. These enforcement options shall be considered supplemental to and not exclusive of any other remedies that may be available to the city. (Ord. 1628, 1-12-2015)

   A.   Definitions. As used in this title, unless the context otherwise requires:

         DEVELOPER: The legal or equitable owner of property who constructs and dedicates public improvements to the city.

         OWNER: The person in whom the recorded fee title is vested, although subject to lien or encumbrance.

         PROPERTY: All land, whether platted or unplatted, regardless of improvements thereon and regardless of lot or land lines.

   B.   Type Of Improvements Subject To Reimbursement: A developer who constructs and dedicates to the city a street, sidewalk, water main, sewer main, bicycle trail, bridge, storm drainage facility, traffic signal or other public improvement may apply to the city for the establishment of reimbursement in order to be reimbursed for a portion of the cost of such public improvement from the owners of other property that is specially benefited by the improvements.

   C.   Property Eligible For Inclusion:

      1.   Any property is eligible for inclusion in the reimbursement calculation if it has been specially benefited by a street, sidewalk, bicycle trail, storm drainage facility, bridge, water main, sewer main, traffic signal, or other public improvement constructed by a developer and dedicated to the city.

      2.   Property located outside the city limits may be included in the reimbursement calculation upon the application by the developer. No reimbursement, however, may be collected from such property until it has been annexed to the city, which must occur prior to the last date on which reimbursement may be collected.

   D.   Basis For Reimbursement Determination:

 

 

      1.   The total service area consists of all properties that are specifically and specially benefited.

      2.   The total development area shall include all area within the development and/or subdivision boundary including, but not limited to, road right of way, open area, common area or other jointly owned or utilized property.

      3.   The actual construction cost is the reasonable cost of constructing the improvement, together with any acquisition cost for any easements, or rights of way upon which any such improvements are constructed, and together with any incidental costs, but not including the cost of any part or portion that solely benefits the development. Engineering costs, incurred by the developer, not to exceed ten percent (10%) of construction costs and any application or hearing fees, may be included for determining the cost. The determination of whether a cost is reasonable shall be made by the city's engineer. Such determination is at the sole discretion of the city's engineer.

      4.   Except as hereinafter limited, the term special benefit means any benefit conferred upon property that is greater than or different from that conferred upon properties in the city as a whole by an improvement. Among the facts to be considered in determining the existence of a special benefit are:

         a.   Increased market value;

         b.   Improvement in safety or convenience of access;

         c.   Improved drainage;

         d.   Alleviation of health or sanitation hazards;

         e.   Adaptability of the property to a superior or more profitable use;

         f.   Improved availability of public water or sewer services to the property; and

         g.   In the case of undeveloped property, the installation of an improvement which would otherwise be required for development of the property.

      5.   When a developer extends an improvement, such as a water or sewer main, in order to make lateral connection to the developer's property, the preexisting portion of the improvement shall not be deemed to specially benefit that portion of the property served by the extension.

   E.   Reimbursement Terms:

      1.   To qualify for reimbursement, the developer shall submit an application, prior to construction, which details the infrastructure which is eligible for reimbursement, the total dollar amount of costs eligible for reimbursement and the properties subject to the payment of such reimbursement. If an application is submitted after construction has commenced, the acceptance of the application shall be at the sole discretion of the city.

      2.   After the application is approved by the city and construction is completed, the developer shall then execute a reimbursement agreement with the city. The final determination as to the amount of costs eligible for reimbursement and the properties subject to payment of such reimbursement is at the sole discretion of the city engineer. In the event the developer incurs additional costs after executing a reimbursement agreement, the city may amend the reimbursement agreement at its discretion.

      3.   Eligibility for reimbursement shall terminate no more than ten (10) years from the date of the letter setting forth the amount of eligible reimbursement unless an alternate time frame is provided in the reimbursement agreement. Any property which is platted or connected to the improvement thereafter shall not be subject to payment of the reimbursement.

      4.   The reimbursement agreement shall be recorded with the county recorder and shall run with the land and shall bind all subsequent purchasers of the land.

   F.   Collection Of Reimbursement:

      1.   All reimbursement fees shall be collected by the city at the time of preliminary plat or final plat application, which may be directed by resolution of the council. Reimbursement fees may be further subdivided for collection purposes on an individual basis as follows:

         a.   For commercial and/or industrial developments the fees shall be based upon the commercial lot area plus a percentage of any right of way and/or common area as applicable.

         b.   For residential developments the fees shall be based upon a per equivalent single-family dwelling basis based upon the total fee established on the gross area of the subdivision divided by the number of equivalent single-family dwellings.

      2.   The city, at its sole discretion, may defer collection of the reimbursement fee to the time of application of a building permit. Such deferral may toll the time period of eligibility for reimbursement over the term of the agreement.

      3.   The city specifically will not guarantee collection of the reimbursement fee.

      4.   In the event that any reimbursement fee becomes due and remains uncollected, the city may execute an assignment of the city's right to collect any such unpaid reimbursement fee to the developer granted reimbursement.

      5.   The city will agree to notify the developer granted reimbursement when the benefited property is platted, a building permit is issued, or the property connects to the improvement. The developer shall meet with the city annually to review the status and an accounting of the reimbursement agreement.

      6.   The developer granted reimbursement agrees to indemnify the city for, and hold the city harmless from, any suit or action that is or may be brought against the city as a result of the execution of the reimbursement agreement, and the determination and/or collection of the reimbursement fee.

      7.   When the reimbursement fee is collected, the city will pay over the reimbursement fee after first deducting therefrom a collection fee. The amount of the collection fee shall be set by resolution of the city council.

      8.   It shall be the responsibility of the developer granted reimbursement to keep the city apprised of the developer's current address. In the event of the developer's death, it shall be the developer's personal representative's responsibility to notify the city of the name and address of the person to receive future reimbursements. In the case of a corporate recipient, a successor shall be designated prior to dissolution.

      9.   Failure of the developer granted reimbursement to comply with any of the provisions of the reimbursement agreement shall constitute abandonment of all rights of reimbursement and shall be grounds for termination of the reimbursement agreement and refund of any reimbursement fees received by the city on behalf of the developer after the abandonment.

      10.   A developer is prohibited from collecting reimbursement in an amount greater than the eligibility amount set forth in the reimbursement agreement.

   G.   Contracts:

      1.   In lieu of the procedure set forth herein, a developer may contract with the owners of property for reimbursement for the construction of public improvements otherwise eligible for reimbursement under this title. At the request of the parties, the city will collect the reimbursement at the time of connection, platting or as otherwise provided in the contract. The city shall be entitled to a collection fee as set forth above.

      2.   In the event that a developer contracts with the owner of a portion of the property that would otherwise be subject to a reimbursement fee, such property may be excluded from further reimbursement fees; provided, however, that no property remaining within the service area shall be assessed a reimbursement fee in an amount proportionally greater than that provided in such contract.

   H.   Appeals: The developer may appeal any decision or determination by city staff and/or the city engineer, in regard to this title, to the city council. An appeal shall be initiated by submitting a written request to the city clerk setting forth the basis for the appeal within ten (10) business days of the decision or determination being appealed. The city council shall hold a hearing on the matter at the next available city council meeting. (Ord. 1628, 1-12-2015)