HomeMy WebLinkAbout03 - Development Agreements Code AmendmentSEW PART
CITY OF
NEWPORT BEACH
City Council Staff Report Agenda Item No. 3
May 14, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt @newportbeachca.gov
APPROVED: A
TITLE: Code Amendment No. CA2013 -002 Amending Title 15 of the
Municipal Code in Respect to the Periodic Review of Development
Agreements (PA2013 -082)
ABSTRACT:
Amendment of Title 15 of the Newport Beach Municipal Code, to modify Chapter 15.45
Development Agreements in respect to the periodic review of development agreements.
RECOMMENDATION:
1) Introduce Ordinance No. 2013 -10 (Attachment CC 1)
a. Finding that this code amendment is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Section 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378)of the CEQA Guidelines_; and
b. Approving Code Amendment No. 2013 -002 and pass to second reading on
May 28, 2013.
FUNDING REQUIREMENTS:
There is no direct fiscal impact related to this item.
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Development Agreements Code Amendment
May 14, 2013
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DISCUSSION:
Background
Currently the City of Newport Beach has eleven development agreements with the
owners of the following properties:
• Hoag Memorial Hospital
• Pacific View Memorial Park
• Fletcher Jones Motor Cars
• Newport Harbor Lutheran Church
• Newport Coast
• North Newport Center
• Sober Living by the Sea
• Newport Banning Ranch
• Uptown Newport
• Newport Beach Country Club
• Golf Realty Fund
Consistent with state law, the City's Municipal Code (Section 15.45.080) requires that
development agreements be reviewed on a periodic basis (Attachment CC 3). The
Code also states that the review shall occur at least once every twelve months from the
date the agreement is executed and that City Council conducts the review at a publically
noticed meeting. The purpose of the review is to determine whether or not the applicant
has complied in good faith with the terms and conditions of the development agreement.
In conjunction with Council's recent periodic reviews of several development
agreements, an interest was expressed to consider a streamlined review process, given
that Council normally finds the applicants in compliance with the terms and conditions of
their respective development agreements.
Analysis
As an alternative to the City Council conducting the periodic reviews each year, staff
recommends that the Municipal Code be amended to specify that the Community
Development Director is authorized to conduct the periodic reviews.
As proposed, the Director would conduct the periodic review, and the applicant would
be required to provide evidence of compliance with the agreement. Should the Director
determine that all of the terms and conditions of the development agreement have been
met, no further review would be required. The Director's compliance determination
would be reported to both the City Council and Planning Commission.
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Development Agreements Code Amendment
May 14, 2013
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Staff also proposes that should the Director not make a compliance determination,
he /she would be required to refer the matter to the City Council for review and action. In
addition, staff is proposing that the Director may refer any periodic review to the City
Council for review and action. Any City Council review would occur at a noticed public
meeting.
Finally staff is recommending that the periodic review occur at least once every twelve
months from the date the agreement is effective, as opposed to the date the
development agreement is executed. In some instances, the agreement's effective date
may occur after the date of its execution because additional entitlements are needed,
such as approval from the Coastal Commission.
A strike -out and underlined version of the proposed amendment to Section 15.45.080 is
included in Attachment CC 2.
Alternatives:
As an alternative to the periodic review being conducted by the Community
Development Director, the City Council may designate either the Zoning Administrator
or Planning Commission as the review authority with the same provisions for referring
the matter to the City Council. If such review were conducted by either of those
authorities, the review would be conducted at a publically noticed meeting.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section
15378)of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly
or indirectly.
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Development Agreements Code Amendment
May 14, 2013
Page 4
NOTICING:
Notice of this amendment was included on the agenda for this meeting, which was
posted at City Hall and on the City website.
Submitted by:
Kimberly AZP
Director
Attachments: CC 1 Draft Ordinance
CC 2 Proposed Language Changes
CC 3 Existing Municipal Code Provisions
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City Council
Attachment 1
Draft Ordinance
0
ORDINANCE NO.2013 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AMENDING CHAPTER
15.45.080 OF THE NEWPORT BEACH MUNICIPAL
CODE RELATING TO THE PERIODIC REVIEW OF
DEVELOPMENT AGREEMENTS (PA2013 -082)
WHEREAS, California Government Code Sections 65864 et seq. enable a city to
enter into a development agreement with any person having a legal or equitable interest
in real property for the development of the property; furthermore, the Government Code
requires cities to establish procedures and requirements for the consideration of
development agreements, and said procedures shall include a periodic review of any
adopted development agreement;
WHEREAS in conformance with the California Government Code, Chapter 15.45
of the Newport Beach Municipal Code (NBMC) includes the procedures and
requirements for the consideration of development agreements;
WHEREAS, NBMC Section 15.45.080 requires the City Council to conduct
periodic reviews of development agreement at least every twelve (12) months from the
date the development agreement is executed to determine whether the applicant has
complied in good faith with the terms and conditions of the development agreement;
and
WHEREAS, a periodic review that is conducted by the Community Development
Director at least every twelve (12) months from the effective date of the development
agreement would streamline the required periodic review process and remain consistent
with the applicable provisions of State law.
NOW, THEREFORE, THE CITY COUNCIL OF NEWPORT BEACH DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1: Section 15.45.080 of the Newport Beach Municipal Code is hereby
amended to read as follows:
"15.45.080 Periodic Review
A. The City shall periodically review the development agreement and the
activity conducted pursuant thereto to determine whether the applicant or
successor in interest has complied with the terms of the agreement. This
review shall be conducted by the Community Development Director at
least once every twelve (12) months from the effective date of the
agreement , unless the development agreement provides for a different
review, in which case the development agreement's schedule for review
shall prevail.
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B. At the time of such review, the applicant, or successor in interest, shall be
required to demonstrate good faith compliance with the terms of the
development agreement. The burden of proof of compliance shall be on
the applicant or successor in interest.
C. In conjunction with such review, the Community Development Director
shall prepare a report relative to all development that has occurred under
the development agreement subsequent to the last review and any other
pertinent matters.
D. If at the completion of his /her review, the Community Development
Director determines that all of the terms and conditions of the
development agreement have been met, no further review shall be
required. If the Community Development Director does not make such
determination, the Community Development Director shall refer the
periodic review to the City Council pursuant to subparagraph E.
E. The Community Development Director may refer any periodic review to
the City Council for review and action at a public hearing. Notice of the
City Council's review of the development agreement shall be given in the
same manner as set forth in Section 15.45.050. At the public hearing the
applicant or successor in interest, shall have the burden of demonstrating
good faith compliance with the terms and conditions of the development
agreement.
F. If following the public hearing, the City Council finds and determines on
the basis of substantial evidence that the applicant or its successor in
interest has not complied in good faith with the terms and conditions of the
development agreement, the City Council may state its intention to amend
or cancel in whole or in part the development agreement. Any amendment
and /or cancellation shall be subject to the notification and procedural
provisions of Section 15.45.070.
Section 2: This action is not subject to the California Environmental Quality
Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) of the CEQA Guidelines,
California Code of Regulations, Title 14, Chapter 3, because it has no potential for
resulting in physical change to the environment, directly or indirectly.
Section 3: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, clause or phrase hereof, irrespective of the fact that any one or
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more sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
Section 4: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published in the official newspaper of the City, and it shall be effective thirty (30) days
after its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on the — day of 2013, and adopted on the
day of 2013, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MA
ATTEST:
Keith D. Curry
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AARON C. HARP, UTY ATTORNEY
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City Council
Attachment 2
Proposed Language Changes
21
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15.45.080 Periodic Review.
A. The Citv shall Deriodicallv review the development aareement and the activit
conducted pursuant thereto to determine whether the applicant or successor in
interest has complied with the terms of the agreement. This review shall be
conducted by the Community Development Director at least once every twelve
(12) months from the effective date of development the agreement , unless the
development agreement provides for a different review, in which case the
development agreement's schedule for review shall prevail.
B. At the time of such review, the applicant, or successor in interest, shall be
required to demonstrate -good faith compliance with the terms of the development
agreement. The burden of proof of compliance shall be on the applicant or
successor in interest.
C. In conjunction with such review, the Community Development Director shall
prepare a report relative to all development that has occurred under the
development agreement subsequent to the last review and anV other pertinent
matters.
D. If at the completion of his /her review. the Communitv Development Director
determines that all of the terms and conditions of the development agreement
have been met, no further review shall be required. If the Community
Development Director does not make such determination, the Community
Development Director shall refer the periodic review to the City Council pursuant
to subparagraph E.
E. The Community Development Director may refer any periodic review to the City
Council for review and action at a public hearing. Notice of the City Council's
review of the development agreement shall be given in the same manner as set
forth in Section 15.45.050. At such public hearing the applicant or successor in
interest, shall have the burden of demonstrating good faith compliance with the
terms and conditions of the development agreement.
F. If following the public hearing , the City Council finds and determines on the basis
of substantial evidence that the applicant or its successor in interest has not
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complied in -good faith with the terms and conditions of the development
agreement, the City Council may state its intention to amend or cancel in whole
or in part the development agreement. Any amendment and /or cancellation shall
be subject to the notification and procedural provisions of Section 15.45.070.
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City Council
Attachment 3
Existing Municipal Code Provisions
15
10
Chapter 15.45 DEVELOPMENT AGREEMENTS
Sections:
15.45.010
Purpose.
15.45.020
Development Agreement Required.
15.45.030
Application and Fees.
15.45.040
Contents.
15.45.050
Public Hearing— Notice.
15.45.060
Findings.
15.45.070
Amendment/Cancellation.
15.45.080
Periodic Review.
15.45.090
Local Coastal Programs.
15.45.100
Recordation.
15.45.010 Purpose.
The lack of certainty in the approval of development projects can result in a waste of resources, escalate
the cost of the project and discourage investment in, and commitment to, comprehensive planning.
Assurance that an applicant may proceed with the project in accordance with existing policies, rules and
regulations, and subject to conditions of approval, will strengthen the public planning process, encourage
private participation in comprehensive planning, and reduce the economic costs of development. The
ordinance codified in this chapter is adopted in part pursuant to the provisions of Section 65864 at seq. of
the Government Code of the State of California. (Ord. 82 -30 § 1 (part), 1982)
15.45.020 Development Agreement Required.
A. Development agreements shall be required in conjunction with City approval of the following
development projects:
1. Projects for which a development agreement is required per General Plan policy; or
2. Projects that require a General Plan amendment, Zoning Code amendment or other legislative
act and that have one or more of the following characteristics:
a. Include the development of fifty (50) or more residential units,
b. Include residential development in the Mariners' Mile corridor, as this geographic area is
described in the General Plan Land Use Element,
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c. Include new non - residential development in Statistical Area L1 (Newport Center),
Statistical Area L3 (North Ford Area), or Statistical Area L4 (Airport Area).
B. Notwithstanding the provisions of Section 15.45.020(A), a development agreement shall not be
required for a project that includes remodeling of existing building floor area, without the addition of new
floor area.
C. The City Council may waive the requirement for a development agreement, except for one required
by General Plan policy, if it finds that the legislative act is of a minor nature, the project provides
significant public benefits to the City, or the nature of the project is such that neither the City nor the
developer would benefit from a development agreement. (Ord. 2007 -6 § 1 (part), 2007)
15.45.030 Application and Fees.
A. Application. The process for the consideration of a development agreement shall be initiated upon
the filing of an application therefor, by or on behalf of the property owner or other person having a legal or
equitable interest in real property located within the municipal boundaries of the City, or real property to
be annexed to the City of Newport Beach. Application forms shall be provided by the Planning
Department. The application for consideration of a proposed development agreement shall be
accompanied by a copy of the proposed development agreement containing all of the provisions required
by the ordinance codified in this chapter, and the applicant shall provide such other information with
respect to the proposed project as may be required by the Planning Director.
B. Fees. The City Council shall establish a reasonable fee for processing the application for
consideration of a development agreement by resolution of the City Council. (Ord. 2007 -6 § 1 (part),
2007; Ord. 87 -14 § 1, 1987: Ord. 82 -30 § 1 (part), 1982)
15.45.040 Contents.
A development agreement shall specify the duration of the agreement. The development agreement shall
specify the permitted uses of the property, the density or intensity of use, the maximum height and size of
proposed buildings, and provisions for reservation or dedication of land for public purposes, if any
reservation or dedication is required by the City of Newport Beach. 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 action shall not
prevent development of the land for the uses and to the density or intensity of development set forth in
the agreement. The development agreement may provide that construction be commenced within a
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specified time, that the project be completed within a specified time, and /or may provide for construction
to be accomplished in phases. The development agreement may contain such other provisions as may
be considered necessary or proper by the City Council to further legitimate City interest or to protect the
public health, safety and welfare so long as such terms are not inconsistent with the provisions of state
law relating to development agreements, nor inconsistent with the ordinances, policies, plans or
resolutions of the City of Newport Beach. (Ord. 2007 -6 § 1 (part), 2007; Ord. 82 -30 § 1 (part), 1982)
15.45.050 Public Hearing— Notice.
A public hearing on an application for a development agreement shall first be held by the Planning
Commission and then by the City Council. Notice of intention to consider the adoption of a development
agreement shall be given as provided in Sections 65090 and 65091 of the California Government Code in
addition to such other notices that may be required by law or ordinance for actions considered
concurrently with the development agreement. (Ord. 2007 -6 § 1 (part), 2007; Ord. 95 -29 § 10, 1995: Ord.
82 -30 § 1 (part), 1982)
15.45.060 Findings.
Unless otherwise provided by the development agreement, the ordinances, rules, plans and policies of
the City of Newport Beach which govern permitted uses of land, the density of development, and the
design, improvement and construction standards and specifications, applicable to development of the
property subject to the development agreement, shall be those ordinance rules, plans and policies in
force at the time of execution of the agreement. A development agreement shall not prevent the City of
Newport Beach 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 agreement, nor shall a development agreement prevent the City of Newport Beach from
denying or conditionally approving any subsequent development project application on the basis of such
existing or new rules, regulations and policies. (Ord. 2007 -6 § 1 (part), 2007; Ord. 82 -30 § 1 (part), 1982)
15.45.070 Amendment /Cancellation.
Development agreements shall only be used after careful consideration since they can limit authority of
future City Councils to react to changed conditions.
A development agreement may be amended, or canceled in whole or in part, by mutual consent of the
parties to the agreement or their successors in interest. Notice of intention to amend or cancel any portion
of the agreement shall be given in the manner provided by Section 65867 of the Government Code. An
amendment to a development agreement shall be subject to the provisions of Section 65867.5. In the
event that State or Federal laws or regulations, enacted after a development agreement has been
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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. 2007 -6 § 1 (part), 2007; Ord. 82 -30 § 1 (part), 1982)
15.45.080 Periodic Review.
The City Council shall periodically review the development agreement and activity conducted pursuant
thereto to determine if the applicant or successor in interest has complied with the terms of the
agreement. This review shall be conducted at least once every twelve (12) months from the date on
which the agreement is executed. At the time of such review, the applicant, or successor in interest
thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. The
burden of proof on this issue shall be on the applicant or successor -in- interest. 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 terms or conditions of the
agreement, the City Council may terminate or modify the agreement. The periodic review of the
agreement shall be subject to the public notice provisions of Section 15.45.040 herein. (Ord. 2007 -6 § 1
(part), 2007; Ord. 82 -30 § 1 (part), 1982)
15.45.090 Local Coastal Programs.
A development agreement shall not be applicable to any development project located in an area for which
a local coastal program is required to be prepared and certified pursuant to the requirements of Division
20 (commencing with Section 30000) of the Public Resources Code, unless: (1) the required local coastal
program has been certified as required by such provisions prior to the date on which the development
agreement is entered into, or (2) in the event that the required local coastal program has not been
certified, the California Coastal Commission approves such development agreement by formal
commission action. (Ord. 2007 -6 § 1 (part), 2007; Ord. 82 -30 § 1 (part), 1982)
15.45.100 Recordation.
Within ten days after the effective date of a development agreement or any modification or the
cancellation thereof, the City Clerk shall record the agreement or any modification or cancellation thereof
in the office of the County Recorder for the County of Orange. (Ord. 2007 -6 § 1 (part), 2007; Ord. 82 -30 §
1 (part), 1982)
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