Orange City Zoning Code
CHAPTER 17
44 DEVELOPMENT AGREEMENTS
§ 17.44.010 Authority and Scope.
This chapter is adopted pursuant to Government Code Section 65864 et seq., as the same may now exist or hereafter be amended. All development agreements entered into on or after the date of approval of this chapter shall be processed in accordance with the provisions of this chapter.
(Prior code 17.98.010; Ord. 40-88; Ord. 12-95)
§ 17.44.020 Application Forms.
The Community Development Director shall prescribe the form of each application, notice and documents provided for or required under this chapter for the preparation, processing and implementation of development agreements. The application shall include as separate documents and/or concurrent land use actions and supporting documents by reference, the following information:
A.
Duration of the agreement;
B.
A legal description of all property affected by the agreement;
C.
The permitted uses of the property;
D.
The density or intensity of use of the property;
E.
The maximum height and size of proposed buildings;
F.
Provisions for reservation of land dedication for public purposes;
G.
Fiscal impact statement;
H.
Phasing and project completion date;
I.
Consistency with the general plan and any applicable specific plan;
J.
Site plans, elevations, and all other such pertinent information concerning and describing the proposed project;
K.
Specific public facilities that will be required to serve the project, and provision for financing such facilities;
L.
Name of legal entity with which the City would contract; identity of all joint ventures, limited partners, or others with whom the developer proposes to associate; and
M.
Any additional information and supporting data as the Director considers necessary to process the application.
(Prior code 17.98.020; Ord. 40-88; Ord. 12-95)
§ 17.44.030 Fees.
The City Council shall establish, and from time to time amend by resolution, a schedule of fees imposed for the filing and processing of each application and document required by this chapter. The fee may be waived in whole or in part by the City Council.
(Prior code 17.98.030; Ord. 40-88; Ord. 12-95)
§ 17.44.040 Qualified Applicant.
An application for a development agreement may only be filed by a person, or the authorized representative of such a person, who has a legal or equitable interest in the real property located within the municipal boundaries of the City, or real property to be annexed to the City of Orange, for which a development agreement is sought. Written evidence of such title or authority shall accompany the application.
(Prior code 17.98.040; Ord. 40-88; Ord. 12-95)
§ 17.44.050 Proposed Agreement.
Each application shall be accompanied by the development agreement proposed by the applicant consistent in form with the City of Orange Model Development Agreement incorporated herein by reference.
(Prior code 17.98.050; Ord. 40-88; Ord. 12-95)
§ 17.44.060 Filing and Review of Application.
The Community Development Department shall endorse on the application the date it is received. The application and proposed development agreement shall be forwarded to the Community Development Director and a staff review committee as designated by the City Manager. The Director and staff shall review the application and determine the additional requirements necessary to complete the agreement. The Director may reject the application if it is not completed in the manner required by this chapter. After receiving the required information, the Director shall prepare a staff report. The staff report shall analyze the proposed development and shall contain a recommendation as to whether or not the development agreement proposed, or in an amended form, would be consistent with the general plan or any applicable specific plan, and shall state what action will be required for compliance with the California Environmental Quality Act, to the extent that it is applicable. The staff report and the proposed development agreement shall be distributed to members of the Planning Commission and the City Council.
(Prior code 17.98.060; Ord. 40-88; Ord. 12-95; Ord. 3-03)
§ 17.44.070 Notice of Intention.
Upon completion of the staff report required by Section 17.44.060, in addition to any other notice required by law, the Director shall give notice of intention to consider adoption of a development agreement. The notice shall contain:
A.
The time and place of the public hearing before the Planning Commission;
B.
A general explanation of the development agreement, including a general description of the property proposed to be developed;
C.
Other information that the Director considers necessary or desirable.
(Prior code 17.98.070; Ord. 40-88; Ord. 12-95)
§ 17.44.080 Manner of Giving Notice.
§ 17.44.090 Failure to Receive Notice.
The failure to receive notice by any persons entitled thereto by law or by this chapter does not affect the authority of the City to enter into a development agreement or the validity of any such agreement.
(Prior code 17.98.090; Ord. 40-88; Ord. 12-95)
§ 17.44.100 Hearing and Recommendation of Planning Commission.
The Planning Commission shall hold a public hearing on the proposed development agreement at the time and place specified in the notice of intention or in accordance with any continuance thereof granted by the Planning Commission at the scheduled hearing. The Planning Commission shall make its recommendation to the City Council in writing within 30 days of the public hearing. The recommendation shall include whether or not the proposed development agreement:
A.
Is consistent with the objectives, policies, general land uses, and programs specified in the general plan and any applicable specific plan or redevelopment plan;
B.
Is compatible with the uses authorized in the district or planning area in which the real property is located;
C.
Is in conformity with the public necessity, public convenience, general welfare, and good land use practices;
D.
Will be beneficial to the health, safety, and general welfare consistent with the policy of the City with respect to development agreements as provided in Section 17.44.200;
E.
Will adversely affect the orderly development of property in the City.
(Prior code 17.98.100; Ord. 40-88; Ord. 12-95)
§ 17.44.120 Hearing by City Council.
After the recommendation of the Planning Commission or after the expiration of the time period specified in Section 17.44.100, the Director shall give notice of a public hearing before the City Council in the manner provided for in Sections 17.44.070 and 17.44.080.
(Prior code 17.98.120; Ord. 40-88; Ord. 12-95; Ord. 09-22, 2022)
§ 17.44.130 Decision by City Council.
A.
After it completes the public hearing and considers the recommendation, if any, of the Planning Commission, the City Council may accept, modify, or deny the proposed development agreement. It may, but need not, refer the matters not previously considered by the Planning Commission during its hearing, back to the Planning Commission, who shall not be required to hold a public hearing on matters referred back to it by the City Council.
B.
The development agreement shall not be approved unless the City Council finds that the development agreement is consistent with the general plan and any applicable specific plan or redevelopment plan.
(Prior code 17.98.130; Ord. 40-88; Ord. 12-95; Ord. 09-22, 2022)
§ 17.44.140 Approval of Development Agreement.
Approval of the development agreement shall be by the adoption of an ordinance. Upon the approval of the ordinance, the City shall enter into the development agreement by the execution thereof by the Mayor.
(Prior code 17.98.140; Ord. 40-88; Ord. 12-95)
§ 17.44.150 Recordation.
A.
No later than 10 days after the City enters into the development agreement, the City Clerk shall record with the County Recorder a copy of the development agreement.
B.
If the parties to the agreement or their successors in interest amend or cancel the agreement, or if the City terminates or modifies the agreement for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall cause notice of such action to be recorded with the County Recorder.
(Prior code 17.98.150; Ord. 40-88; Ord. 12-95)
§ 17.44.160 Amendment and Cancellation.
A.
Either the City or the applicant or successor in interest thereto may propose an amendment or cancellation in whole or in part of the development agreement.
B.
The procedure for proposing and approving an amendment to or cancellation in whole or in part of the development agreement shall be the same as the procedure for entering into a development agreement.
(Prior code 17.98.160; Ord. 40-88; Ord. 12-95)
§ 17.44.170 Periodic Review.
A.
The City Council shall review the development agreement at least every 12 months from the date the development agreement is entered into until expiration of the term of the agreement.
B.
The Director shall give the applicant or successor in interest thereto at least 30 days advance notice of the time at which the City Council will review the development agreement.
C.
The City Council may refer the matter to the Planning Commission for further proceedings or for a report and recommendation.
D.
The applicant or successor in interest thereto shall demonstrate good faith compliance with the terms of the development agreement. The burden of proof on this issue shall be on the applicant or successor in interest.
E.
If, as a result of such periodic review, the City Council finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with the terms or conditions of the development agreement, the City Council may commence proceedings to enforce, modify, or terminate the development agreement.
(Prior code 17.98.170; Ord. 40-88; Ord. 12-95)
§ 17.44.180 Modification or Termination.
A.
If, upon a finding under Section 17.44.170(D), the City Council determines to proceed with modification or termination of the development agreement, the City Council shall give notice to the applicant or successor in interest thereto of its intention to do so. The notices shall contain:
1.
The time and place of the hearing;
2.
A statement as to whether or not the City Council proposes to modify or terminate the development agreement;
3.
Any proposed modification to the development agreement;
4.
Other information which the City Council considers necessary to inform the applicant or successor in interest thereto of the nature of the hearing.
B.
At the time set for the hearing on the modification or termination, the City Council may refer the matter back to the Planning Commission for further proceedings or for report and recommendation. The City Council may take such action as it deems necessary to protect the interests of the City. The decision of the City Council shall be final and notice thereof shall be recorded as prescribed in Section 17.44.150.
(Prior code 17.98.180; Ord. 40-88; Ord. 12-95)
§ 17.44.190 Irregularity in Proceedings.
No action, inaction, or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect, or omission as to any matter pertaining to the application, notice, finding, record, hearing, report, recommendation, or any other matters of procedure whatsoever unless after an examination of the entire record the court is of the opinion that the error complained of was prejudicial and that a different result would have been probable if the error had not occurred or existed.
(Prior code 17.98.190; Ord. 40-88; Ord. 12-95)
§ 17.44.200 Policy.
It is the policy of the City of Orange to enter into development agreements under the provisions of this chapter where the development agreement and proposed development project, in the City's opinion, is of significant public benefit not only to the prospective residents of the proposed development, but to the entire community.
(Prior code 17.98.200; Ord. 40-88; Ord. 12-95)
§ 17.44.210 Transfer of Development Rights.
A development agreement entered into pursuant to this Chapter 17.44 of the Zoning Ordinance may include provisions for the Transfer of Development Rights as set forth below.
Transfer of development rights (TDR) allows the owner of property in a sending area, as defined, to voluntarily sell and transfer certain rights to develop to the owner of property in a receiving area, as defined. The intent of the TDR process is to provide a mechanism to facilitate housing development in certain areas of the community while preserving certain undeveloped property to facilitate the development of parks and recreational trails.
The transfer/elimination of development rights from the sending area shall be separately recorded as a deed restriction on the property at issue prohibiting future development based on the same rights that were transferred to the sending area property in perpetuity. The TDR to the receiving area property will be memorialized in the development agreement.
A.
TDR Sending Areas. In accordance with the requirements in this section, development rights may be severed and sold from properties located in the following TDR sending areas:
1.
Privately-Owned Open Space Sending Area. To preserve their habitat and other environmental benefits as undeveloped open space, properties in this sending area that are located fully within the Recreation Open Space, R-O zoning district, are eligible for TDR as a sending area property, except properties reserved as "open space" in conjunction with the approval of a tentative tract map.
2.
Former Rail Right-of-Way Sending Area. To preserve land for public trails, the portion of properties that were formerly in the rail right-of-way and are either zoned with a residential classification or are un-zoned with a general plan designation that includes residential use are eligible for TDR as a sending area property.
3.
Resource Area Sending Area. To protect the public from areas unsuitable for development and provide opportunities for recreation and open space, properties in this sending area that are located fully within both the General Plan Designation Resource Area and Sand and Gravel (S-G) zoning district, are eligible for TDR as a sending area property.
B.
TDR Receiving Areas. In accordance with the requirements in this section, development rights may be used to increase the allowable residential density for properties located fully within the Urban Mixed Use (UMU) zoning district, as contained in the City's Official Zoning Map, which generally, at the time of the adoption of the ordinance codified in this section, includes properties along Katella Avenue, Rampart Street, The City Drive, and Town and Country Drive.
C.
TDR Sending/Receiving Areas In accordance with the requirements in this section, development rights may be transferred within the Urban Mixed Use Zone areas, which shall be both sending and receiving areas, by properties located fully within the Urban Mixed Use (UMU) zoning district, as contained in the City's Official Zoning Map, which generally, at the time of the adoption of the ordinance codified in this section, includes properties along Katella Avenue, Rampart Street, The City Drive, and Town and Country Drive.
D.
TDR Credits. Development rights are expressed as a TDR credit, where one credit is equal to one residential dwelling unit. The use of TDR by an applicant is completely voluntary, and the price of the development rights is individually negotiated on a case-by-case basis between two willing property owners. The City shall maintain a publicly available ledger that records TDR credits certified by the City, development rights severed by sending area property owners, and TDR credits retired and used to increase the density of development by receiving area property owners.
E.
TDR Certification. Upon request of a sending area property owner and in conjunction with a completed application and payment of a fee that the City Council may adopt or amend, from time to time, by resolution, the Director of Community Development may certify the number of TDR credits which a property in a sending area can sever and sell, in accordance with the following:
1.
Application for TDR Certification. The application for TDR certification shall include, at a minimum, the following:
a.
A copy of the deed to the lot or parcel;
b.
A title search completed within the six months prior to the application establishing whether the lot or parcel is subject to a deed restriction, or any other condition, covenant, or restriction that would prohibit or limit development on the lot or parcel;
c.
A conceptual property plan showing the development capacity of the lot or parcel and demonstrating compliance with setbacks, parking requirements, and all other applicable development standards;
d.
The address of the property owner or agent thereof to which the City may send correspondence regarding TDR certification, renewal, expiration, and any intended retirement of development rights pursuant to a development agreement that the City intends to execute; and
e.
Any other information deemed necessary by the Community Development Director.
2.
TDR Credits.
a.
Residential or Mixed-Use Sending Area Properties. For eligible sending area properties located in a residential zoning district or in an Urban Mixed Use (UMU) zoning district, the number of TDR credits shall equal the maximum number of residential dwelling units that the general plan land use designation or the zoning district classification, whichever is higher, would allow to be constructed after accounting for any restrictions that would prohibit or limit residential development, less the number of residential dwelling units existing on the lot or parcel at the time of the application for TDR certification. The number of TDR credits shall be rounded down to the nearest one-tenth unit.
b.
Former Right-of-Way Sending Area Properties. For eligible sending area properties located in the former rail right-of-way sending area and located in a residential zoning district or un-zoned with a general plan designation that includes residential use, only the portion of the property that was formerly within the rail right-of-way shall be used to determine the number of TDR credits. Each such property shall have a minimum development right of one dwelling unit solely for the purpose of calculating TDR credits that can be severed and sold. The City may certify twice the number of TDR credits if the sending area property owner grants a public easement to use the portion of the property that was formerly in the rail right-of-way as a public trail.
c.
Recreation Open Space and Sand and Gravel Zoned Sending Properties. For eligible sending area properties located in the Recreation Open Space (R-OS) zoning district or Sand and Gravel (S-G) zoning district, the development rights shall be expressed as equivalent dwelling units based on the maximum allowable density under the abutting residential land use district. Should there be more than one abutting residential land use district, the district with the higher density shall serve as the reference. The number of TDR credits shall equal the property area, measured in square feet or acreage, as appropriate, after accounting for any restrictions that would restrict or limit development, multiplied by the theoretical maximum density. The number of TDR credits shall be rounded down to the nearest one-tenth unit. The City may certify twice the number of TDR credits if the sending area property owner grants a public easement to use the property for public parks and open space.
3.
Determinations. The Community Development Director shall have sole discretion in making the determination as to the number of TDR credits, with appeal rights as set forth in Section 17.08.050.
4.
Expiration of TDR Certification. Any TDR certification issued by the City shall be used within one calendar year from the date of issuance and may be renewed for up to two one-year periods upon submission of an application for extension and the payment of any fee that the City Council may adopt and amend, from time and time, by resolution, for both application and renewal of the TDR certification. The initial certification and any renewals granted by the City shall be recorded in the TDR Ledger. When a TDR certification has expired, the property owner may reapply for a new certification. Execution of a Development Agreement that includes the TDR credits in accordance with this chapter shall constitute a use of development rights.
5.
Eligibility. Properties eligible for TDR as part of a sending area or receiving area must have been zoned as an eligible classification on the effective date of the ordinance codified in this section, except that properties zoned Commercial Recreation or un-zoned as of the effective date of said ordinance that are re-zoned or zoned to Urban Mixed Use to achieve general plan consistency shall be eligible for TDR.
F.
Sale of TDR Development Rights.
3.
City Sales and Purchases. The requirements of subsection (F)(2) notwithstanding, the City of Orange may purchase and hold TDR credits and may sell TDR credits to owners of eligible receiving area properties when, in the sole discretion of the City, the sales and purchases of such TDR credits would improve the market for development rights and further implement the general plan.
a.
Any and all City purchases of TDR credits shall be with the voluntary consent of the sending area property owner. The City may use a reverse auction to ensure that it pays the lowest available price for TDR credits.
b.
Any and all City sales of TDR credits shall be with the voluntary consent of the receiving area property owner. The City may use an auction to ensure that it receives the highest acceptable price for TDR credits.
G.
Use of TDR Credits.
1.
Use of TDR Credits. Pursuant to an executed development agreement, the City may allow each TDR credit purchased from a sending area property to be used on an eligible receiving area property to construct one residential dwelling unit in excess of the maximum density permitted under the general plan designation or zoning classification, whichever is greater. Fractional TDR credits may only be used when bundled with other fractional TDR credits to yield one full TDR credit.
2.
Maximum Density. The use of TDR credits may increase the density up to 25% of the maximum density permitted under the general plan designation or zoning district classification for the eligible receiving area property.
3.
Compliance with Development Standards. The use of TDR credits on an eligible receiving area property allows only for an increase in the maximum density. All other legal requirements such as development standards, fire, building and other codes, allowable uses, and other requirements applicable to the zoning district remain in force, including, but not limited to, height limitations, setbacks and yard requirements, parking standards, and open space requirements.
4.
Density Bonus. The owner of an eligible receiving area property may use TDR credits to exceed the maximum allowable density for a property's general plan land use designation and also may use the density bonus provision for affordable housing included in Chapter 17.15, Density Bonus. When a property owner intends to use both TDR credits and the affordable housing density bonus, the calculation of the allowable affordable housing density bonus shall be calculated before the application of TDR credits.
H.
Development Agreements for Transfer of Development Rights. The application for a development agreement for the TDR, the development agreement, the review and approval process, and recordation, shall comply with the requirements of this chapter. The following additional requirements shall also apply:
1.
The application for a development agreement for the TDR shall include:
a.
A title search completed within the six months prior to the application establishing whether the sending area property is subject to a deed restriction, or any other condition, covenant, or restriction that would prohibit or limit development on the property;
b.
A copy of the TDR certification;
c.
An agreement executed by the sending area property owner in favor of the City of Orange, in a form acceptable to the City Attorney, to be recorded as a deed restricting future residential development on the sending area property from which development rights are being severed;
d.
An agreement executed by the sending area property owner in favor of the City of Orange, in a form acceptable to the City Attorney, to be recorded to grant a public easement for a public trail or for a public park and open space, if any of the development rights are derived from the grant of such a public easement, pursuant to subsection (D)(2) or (D)(3) above;
e.
A project description identifying the number of residential dwelling units allowed by the general plan land use designation and the zoning district classification of the receiving area lot(s) or parcel(s) and the resulting density, the number of TDR credits being applied to and retired for the proposed project, and the total number of residential dwelling units in the proposed project and the resulting density; and
f.
Any other information deemed necessary by the Community Development Director.
2.
The development agreement shall identify the number and source of all development rights being used by the proposed receiving area property and shall indicate that the recording of the development agreement shall act to sever the development rights from the sending area property and vest them in the receiving area property.
3.
In addition to recording the development agreement in accordance with Section 17.44.150, the City Clerk shall record with the County Recorder any related deed restrictions limiting or prohibiting development on the sending area property, deeds conveying public easements, and deeds conveying land for public parks and open space, no later than 10 days after the City enters into the development agreement.
4.
Recording of the development agreement shall vest the development rights with the receiving area property. The provisions of Section 17.44.160 notwithstanding, no amendment or cancellation of the development agreement shall remove the development rights vested in the receiving or sending area property. The only recourse to reallocate the development rights is to commence a new process to sever and sell the development rights and transfer them to an eligible receiving area property.