Union City City Zoning Code
CHAPTER 18
104 PROCEDURES AND REQUIREMENTS FOR CONSIDERATION OF DEVELOPMENT AGREEMENTS
§ 18.104.010 Findings and declaration of intent.
A.
Improve Planning Process. The California Legislature in Section 65864 of the Government Code has found that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. The City Council finds and determines that under appropriate circumstances, development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services and the allocation of costs therefor in order to achieve the maximum utilization of public and private resources in the development process, and assure, to the extent feasible, that appropriate measures to enhance and protect the environment of the City are achieved.
B.
Public Health, Safety and Welfare. The City Council further finds and determines that the public safety, health, convenience, comfort, prosperity and general welfare will be furthered by the adoption of this chapter in order to provide a mechanism for the enactment of development agreements to accomplish the foregoing purposes and aims and the realization of the benefits to be derived therefrom.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.020 Purpose.
Except as may otherwise be set forth in a development agreement, development agreements enacted pursuant to this chapter are to ensure to the applicant for a development project that, upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to specified conditions of approval, in order to implement the intent of the City Council in enacting this chapter. Development agreements will also ensure that all conditions of approval, including the construction of off-site improvements made necessary by such land developments, will proceed in an orderly and economical fashion to the benefit of the City.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.030 Authority for adoption.
§ 18.104.040 Definitions.
The following terms when used in this chapter shall have the following respective meanings:
means the City of Union City, a municipal corporation organized and existing under the Constitution and laws of the State of California.
means the City Council of the City.
means a qualified applicant who has entered into a development agreement pursuant to the procedures specified in this chapter.
means the development which is the subject of a proposed or executed development agreement.
means the Economic and Community Development Director.
means an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body or tribunal or any other form of business or legal entity.
means the Planning Commission of the City established pursuant to the ordinances of the City.
means a person who has a legal or equitable interest in the real property which is the subject of the development agreement determined pursuant to Section 18.104.090(A) of this chapter.
means a form of a development agreement adopted by resolution of the City Council, as it may be amended from time to time by Council resolution.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.050 Initiation.
A.
Qualified Applicant. A proposal to enter into a development agreement may be initiated by an application by one or more qualified applicants.
B.
City Council. A proposal to enter into a development agreement may be initiated by an action of the City Council.
C.
Agreement Discretionary. Nothing in this chapter shall be interpreted to require that the City Council be required to enter into a development agreement, or that any person or qualified applicant be required to enter into a development agreement as a condition of obtaining a permit, approval or other land use grant or entitlement from the City or any other person.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.060 Application.
Application for a development agreement shall be made in writing by a qualified applicant to the Economic and Community Development Department on a form prescribed by the Director. Each application shall be accompanied by the development agreement proposed by the applicant, which agreement shall use the standard form development agreement, and shall include, without limitation, the following:
A.
Parties. The parties to the proposed development agreement;
B.
Interest. The nature of the applicant's legal or equitable interest in the real property constituting such applicant as a qualified applicant hereunder;
C.
Project Description. A description of the development project sufficient to permit the proposed development agreement to be reviewed under the applicable criteria of this chapter. Where appropriate, such descriptions may distinguish between elements of the development project which are proposed to be fixed under the proposed development agreement, those which may vary and the standards and criteria pursuant to which the same may be reviewed;
D.
Approvals. An identification of the approvals and permits for the development project enacted to the date of or contemplated by the proposed development agreement;
E.
Term. The proposed term of the proposed development agreement;
F.
Periodic Review. A program and criteria for periodic review under this chapter;
G.
Modifications. Modifications of the terms and conditions of the standard form development agreement, if any, proposed by the applicant, which proposed modifications shall be clearly identified and accompanied by a brief justification;
H.
Additional Information. Any additional information required by the Director to prepare the recommendation to the Planning Commission.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.070 Processing fee.
At the time of filing the application, the applicant shall pay a fee to reimburse the City for the costs associated with the processing of the application. The amount of this fee shall be determined by the City Council by separate resolution and shall be based on the estimated cost of City staff time which will be expended in the processing of the application, the estimated cost, if any, of retaining consultants to advise and assist in the processing of the application, and a pro rata share of the cost of adopting this chapter. Such time may include time which has been spent by City staff or consultants prior to submission of an application in informal discussion with the applicant. If this fee is expended by the City prior to the execution of a development agreement, the applicant on request shall pay additional fees as determined by the Director. Failure to pay any additional fees in a timely manner may result in either the suspension or termination of the processing of the application. Any portion of this fee, including additional fees, which has not been used by the City prior to the execution of the development agreement shall be refunded to the applicant.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.080 Withdrawal of application.
A qualified applicant may withdraw an application at any time. Any portion of a processing fee, including additional fees, which has not been used by the City at the time of withdrawal of the application shall be refunded to the applicant, provided that all City costs incurred as of the date of notification of withdrawal shall have been paid.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.090 Qualification of applicant.
A.
Qualified Applicant. Only a qualified applicant or the agent of a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has a legal or equitable interest in the real property which is the subject of the proposed development agreement. The Director may require an applicant to submit proof of his or her (its) interest in the real property and of the authority of the agent to act for the applicant. The Director may 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. The City Attorney may require an applicant or agent to submit a title report or other evidence to verify the applicant's legal or equitable interests in the subject property.
B.
Other Parties. In addition to the City and the developer, any federal, state or local government agency or body may be included as a party to any development agreement. Any such additional party shall be made a party to the development agreement pursuant to the provisions of the Joint Exercise of Powers Act (Government Code Sections 65000, et seq.) providing for joint powers agreements, or provisions of other applicable federal, state or local law, in order to create a legally binding agreement between such parties.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.100 Form of agreement.
The City Attorney shall approve the form of each proposed development agreement. The proposed agreement shall contain all of the elements required by Government Code Section 65865.2 and may include any other provisions permitted by law.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.110 Review of application.
A.
Determination of Completeness. The Director shall endorse on the application the date it was received. The Director shall review the application for a proposed development agreement, or any resubmission of a prior application, and within 30 days of receipt shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the proposed development agreement. If the application is determined not to be complete, the Director's determination shall specify those parts of the application which are incomplete and shall indicate the manner in which they can, be made complete, including a list and thorough description of the specific information needed to complete the application.
B.
Review by Other Departments. The Director shall, as part of his review of the application, circulate copies of the proposed development agreement to those City departments having jurisdiction over the development project to be undertaken pursuant to the development agreement for review and comment by such agencies. Copies of the application shall be forwarded to the City Attorney for review for compliance with the provisions of this chapter and for the preparation of a proposed ordinance authorizing the City Council to enter into a development agreement for action by the City Council upon hearing thereof as specified by this chapter.
C.
Director's Report. Within 60 days of receipt of the complete application for a proposed development agreement, the Director and the members of other City departments having jurisdiction over the development project shall review the complete application. At the end of this 60 day period, the Director shall submit a report and recommendation to the Planning Commission with regard to the proposed agreement. The report and recommendation of the Director shall include any appropriate recommendations received by other City departments and the proposed form of ordinance prepared by the City Attorney authorizing the City Council to enter into a development agreement.
D.
Extension of Review Period. The 60 day review period specified in Section 18.104.110(C) may be unilaterally extended by the City or the qualified applicant to allow for additional processing of the development agreement.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.120 Environmental review.
A proposed development agreement, if it qualifies as a project under the California Environmental Quality Act and implementing regulations, shall be subject to environmental review.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.130 Public hearing by Planning Commission.
A.
Commission Hearing. The Planning Commission shall serve as the advisory agency on applications for proposed development agreement. Within 30 days of its receipt of the staff report and recommendation from the Director, the Planning Commission shall hold a public hearing on the application. Notice of the public hearing shall be given as provided in this chapter.
B.
Concurrent Hearings. The application for a proposed development agreement may be considered concurrently with applications, if any, related to the development project which is the subject of the proposed development agreement, including but not limited to the following, which may be processed, to the maximum extent possible, jointly to avoid duplication of hearings and repetition of information:
1.
Amendment of the City's General Plan;
2.
Amendment of the zoning title or zoning map;
3.
Specific Plan approval or amendment;
4.
Issuance of a conditional use permit, site development review approval, or other discretionary permit;
5.
Conditions imposed upon approval of a permit after discretionary review;
6.
Approval of and/or conditions imposed upon approval of a subdivision or parcel map or maps;
7.
The formation of any assessment district, benefit district, maintenance district, Mello-Roos community facilities or special benefit district, integrated financing district, or any other procedure, for the installation of required or necessary on-site or off-site improvements or infrastructure; and/or
8.
Mitigation measures imposed upon a development project after approval of an environmental impact report in which such mitigation measures have been proposed as a mechanism for eliminating or reducing environmental impacts, or the criteria for development of the project without such mitigation measures where specific economic, social or other considerations make such mitigation measures unfeasible or the benefits of the project outweigh the unavoidable adverse environmental effects.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.140 Planning Commission recommendation.
Within 30 days after the public hearing has been closed by the Planning Commission, it shall render its decision in the form of a written recommendation to the City Council. Its report and recommendation, including proposed findings on the matters stated in Section 18.104.150(C), shall be forwarded to the City Council.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.150 Action by the City Council.
A.
Council Hearing. Within 45 days after receipt of the written recommendation of the Planning Commission, the City Clerk shall set the matter for public hearing before the City Council.
B.
Council Action. After the City Council closes the public hearing, it shall approve by ordinance, modify by ordinance, or disapprove the proposed development agreement. The ordinance shall refer to and incorporate by reference the text of the development agreement. Matters not previously considered by the Planning Commission during its hearing may, but need not, be referred back to the Commission for report and recommendation. The Commission may, but need not, hold a public hearing on matters referred back to it by the City Council.
C.
Council Findings. The City Council shall not approve the proposed development agreement unless it finds in writing that the agreement:
1.
Is consistent with the objectives, policies, general land uses and programs specified in the City's General Plan, any applicable specific plan, and the regulations prescribed for the zoning district in which the development project is or will be located;
2.
Will not be detrimental to the health, safety and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole;
3.
Will not adversely affect the orderly development of property or the preservation of property values;
4.
Will facilitate the implementation of any applicable specific plan; and
D.
Applicable Rules, Regulation and Official Policies. Except as otherwise set forth in the development agreement, the rules, regulations and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications applicable to development of the property which is subject to a development agreement shall be those rules, regulations and official policies in force at the time of the execution of the agreement. A development agreement shall not prevent the City, 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 herein, nor shall a development agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations and policies. As used in this subsection D, the phrase "do not conflict with" means does not prevent development of the land for the uses and to the density or intensity of development and within the time periods set forth in the development agreement.
E.
Subsequent Discretionary Actions. The development agreement may include conditions, terms, restrictions and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development or within the time periods set forth in the development agreement.
F.
Development Phasing. The development agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time.
G.
Financing of Public Facilities. The development agreement may include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.160 Required notice for public hearings.
C.
Notice for Modification or Termination. Notice of public hearings for modification or termination of a development agreement shall be as provided in Section 18.104.240 of this chapter.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.170 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 ("error") as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendations 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 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. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.180 Procedure for amendment or cancellation.
A.
Initiation. Either party may initiate a proposal to amend or cancel in whole or in part any development agreement. Any amendment or cancellation may only be by mutual consent of the parties.
B.
Procedure. Except as otherwise provided in this section, the procedure for proposing and adopting an amendment to or the cancellation in whole or in part of the development agreement shall be the same as the procedure for entering into a development agreement in the first instance. However, if the City initiates a proposed amendment to, or a cancellation in whole or in part of the agreement, the City shall first give written notice to the party executing the agreement of its intention to initiate such proceedings. Such notice shall be given not less than 30 days in advance of public notice of the hearing to consider an amendment or cancellation.
C.
Amendments Not Requiring Hearing. 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, timing of development, 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 or construction standards and specifications, or to any other condition or covenant relating to the use of the property, shall not require, at the discretion of the Director, a noticed public hearing before the parties execute such amendment.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.190 Enforceability.
Unless amended or cancelled pursuant to Section 18.104.180, a development agreement shall be enforceable by any party thereto notwithstanding any change in the City's General Plan or any applicable specific plan, zoning, subdivision, building regulation or other ordinance or resolution adopted by the City which alters or amends the rules, regulations or policies specified in Section 18.104.150(D).
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.200 Recordation.
Within 10 days after the effective date of an ordinance approving a development agreement, or any modification or the cancellation thereof, the City Clerk shall have the agreement and the modification or cancellation notice recorded with the County Recorder.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.210 Agreement file.
The City Clerk shall be the official custodian of the agreement file. Said file shall include an executed copy of all development agreements and the originals of all exhibits, reports of periodic review, amendments and cancellations to the agreement.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.220 Periodic review.
The City Council shall require the review of a development agreement every 12 months from the date the agreement is entered into by the Director, who shall review the agreement in order to ascertain the good faith compliance by the developer with its terms. The Director shall be responsible for setting the date for said review and shall give notice to the developer at least 30 days prior to such hearing.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.230 Procedure for periodic review.
A.
Finding of Compliance. If the Director finds good faith compliance by the developer with the terms of the development agreement, he shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the developer in the official records. The issuance of a certificate of compliance by the Director and the expiration of the appeal period specified herein without appeal, or the confirmation by the City Council of the issuance of the certificate on such appeal, shall conclude the review for the applicable period and such determination shall be final.
B.
Finding of Noncompliance. If the Director, on the basis of substantial evidence, finds the developer has not complied in good faith with the terms of the development agreement, he shall specify in writing to the developer the respects in which the developer has failed to comply. The Director shall also specify a reasonable time for the developer to meet the terms of compliance. If such areas of noncompliance are not cured within the reasonable time limits as prescribed by the Director, the Director shall pursuant to the notice provisions of this chapter request that the City Council conduct a public hearing at which the developer must demonstrate good faith compliance with the terms of the development agreement.
C.
Appeal. Any interested person may file an appeal of the issuance of a certificate of compliance to the City Council within 10 days after the certificate's issuance. The developer may also file an appeal to the City Council of the finding of the Director of noncompliance within 10 days after the giving of the notice of such determination.
D.
Hearing of Appeal. Upon appeal of a finding of noncompliance under subsection B of this section or the issuance of a certificate of compliance under subsection A of this section, the City Council shall conduct a public hearing and shall determine upon the basis of substantial evidence whether or not the developer has, for the period under review, substantially complied in good faith with the terms and conditions of the development agreement.
1.
If the City Council finds and determines on the basis of substantial evidence that the developer has substantially complied in good faith with the terms and conditions of the development agreement during the period under review, it shall direct the issuance of a certificate of compliance pursuant to subsection A of this section.
2.
If the City Council determines on the basis of substantial evidence that the developer has not substantially complied in good faith with the terms and conditions of the development agreement during the period under review, the City Council, on its own motion, may initiate proceedings to modify or terminate the agreement.
E.
Referral to Planning Commission. The Director may refer any review to be conducted by him to the Planning Commission. Such referral shall be made by the Director together with a staff report of referral, the Planning Commission shall conduct a noticed public hearing to determine the good faith compliance by the developer with the terms of the development agreement in accordance with the provisions of this chapter and shall direct the issuance of a certificate of compliance pursuant to subsection A of this section, upon a finding of good faith compliance, or make the determination of noncompliance on the basis of substantial evidence pursuant to subsection B of this section. Any such decision by the Planning Commission shall be subject to appeal to the City Council in the same manner as any such decision by the Director.
F.
Administrative Hearing. The procedure herein for periodic review shall be conducted as an administrative hearing and shall be subject to review by administrative mandamus.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.240 Procedure for modification or termination.
A.
Hearing. If upon a finding pursuant to Section 18.104.230(D)(2) the City Council determines that modification of the development agreement is appropriate or that the agreement should be terminated, the City Council shall give notice to the developer of its intention to hold a public hearing to consider modification or termination. This hearing shall be held not less than two weeks from the date the developer receives his notice. Such notice, which may be given at the conclusion of the hearing held pursuant to Section 18.104.230(D)(2), shall provide:
1.
The time and place of the public hearing;
2.
A statement as to whether the City Council proposes to terminate or to modify the development agreement and if the latter is proposed, the proposed modification; and
3.
Such other information which the City Council considers appropriate to inform the developer of the nature of the proceeding.
B.
Council Action. At the conclusion of the hearing to consider modification or termination, the City Council may refer the matter to the Planning Commission for a report and recommendation. Upon receipt of any such report or recommendation, the City Council will take final action on the proposed modification or termination. If the City Council elects to modify the development agreement, it shall modify the agreement only in a manner reasonably related to the lack of substantial compliance with the terms and conditions of the agreement by the developer.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.250 State or federal laws or regulations.
In the event that State or Federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, such provisions of the agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)
§ 18.104.260 Judicial review-Time limitation.
A.
Standard of Review. Any judicial review of the initial approval by the City of a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure; and judicial review of any City action taken pursuant to this chapter, other than the initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure. The use of the phrase "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.
B.
Commencement. Any action or proceeding to attack, review, set aside, void or annul any decision of the City taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within 90 days after the date of the decision.
(Ord. 55.297-88 § 2, 1988; Ord. 670-06 § 3, 2006)