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HomeMy WebLinkAbout8.4 PCSR EastDublinSPA to Eliminate RequiredDevAgmt OF�Dp��f� X82 STAFF REPORT PLANNING COMMISSION FOR DATE: November 13, 2012 TO: Planning Commission SUBJECT: PUBLIC HEARING — Eastern Dublin Specific Plan Amendment to Eliminate the Requirement for Development Agreements and related Financing Plans and Infrastructure Sequencing Programs (Legislative Act) Prepared by John Bakker, City Attorney EXECUTIVE SUMMARY The Eastern Dublin Specific Plan (EDSP) requires that Applicants for development in the Specific Plan area enter into a mutually acceptable development agreement with the City. The EDSP also requires the development agreements to include detailed financing plans and infrastructure sequencing programs. The City's original purpose for these requirements in the EDSP was to ensure the adequate provision of infrastructure needed by planned development. There are now other implementation measures in place that insure the provision of infrastructure and payment of fees, so these requirements are no longer necessary. City staff is recommending that the EDSP be amended to eliminate the above requirements because they are no longer needed and because the City would then have the opportunity to negotiate for community benefits when developers desire the certainty provided by a voluntary development agreement. RECOMMENDATION Staff recommends that the Planning Commission: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the public; 4) Close the public hearing and deliberate; and 5) Adopt a Resolution recommending that the City Council amend the Eastern Dublin Specific Plan to eliminate the requirement for development agreements and related financing plans and infrastructure sequencing programs. Submitted By lRevi ed By City Attorney Assistant Community Development Director COPIES TO: Applicant File ITEM NO.: Page 1 of 5 DESCRIPTION Authority for Development Agreements Under the common law of California, the approval of a development project does not give the developer a right to proceed to complete the project. Rather, the local agency can change the rules and regulations at any point up until the developer has been issued a building permit and incurred substantial liabilities in good faith reliance on the permit. Even then, the vested right only gives the developer the right to complete the development described in the building permit. To provide relief from this rule, the Legislature has developed two means by which a developer may protect its project from subsequent changes in regulations. The first is a vesting tentative map, which gives the developer the right to proceed with development in substantial compliance with the rules and regulations in effect at the time the map application was deemed complete. (See Gov. Code, § 66498.1(b).) The second is a development agreement between the local agency and the developer. A development agreement vests the developer's right to proceed with the approved project and, unless otherwise specified in the agreement, locks in the rules and regulations applicable to the property. The local agency normally has no obligation to enter into a development agreement, and therefore it can negotiate for consideration (community benefits) in exchange for giving the developer vested rights. Eastern Dublin Specific Plan Requirement for Development Agreements In contrast to a typical voluntary development agreement, Section 11.3.1 of the Eastern Dublin Specific Plan requires all Applicants for development in the Specific Plan area to enter into a "mutually acceptable development agreement" with the City. As further directed by the EDSP, the City Council adopted a Standard Master Development Agreement on October 10, 1994 and amended it on November 28, 1995. Over the years, the Council has unofficially established five years as the time for specific plan required development agreements. Because the Specific Plan requires a development agreement, the City cannot bargain for consideration from the developer in exchange for the development agreement. For this reason, the standard Specific Plan development agreements have not been used by the City to exact benefits the City cannot otherwise obtain. Purpose of Eastern Dublin Development Agreements The Specific Plan identifies the following purposes of the development agreement requirement: 1) augment the City's standard development regulations for specific projects; 2) spell out the precise financial responsibilities of the developer; 3) ensure the timely provision of adequate public facilities; 4) streamline the development approval process by coordinating various discretionary approvals; 5) provide the terms for reimbursement when a developer advances funding for specific facilities which have community wide area benefits; and 6) provide for mutuality to the City and the developer regarding entitlements to the developer in return for commitments for public improvements. (Section 11.3.1.) At this point in the development of Eastern Dublin, none of these purposes offers a compelling rationale to maintain the requirement. This is because some level of entitlement has been approved for virtually all specific plan properties and major infrastructure has been constructed or planned for construction through these approvals. Additionally, when the Plan was first adopted, there were not administrative or formal procedures in place to ensure these purposes 2of5 could be accomplished. The development agreement temporarily filled that need and is no longer necessary. Advantages and Disadvantages of the Development Agreement Requirements The specific plan development agreement requirement has advantages and disadvantages. The advantages of the specific plan development agreement requirement are that 1) the agreements satisfy the Specific Plan requirement for "financing plans" and "infrastructure sequencing programs"; 2) the agreements secure project conditions that cannot be satisfied at final map; and 3) the agreements can clarify Conditions of Approval. The disadvantages of the specific plan development agreement requirement are that: 1) the City, since it effectively gives away five years of vested rights, cannot bargain for community benefits in exchange for providing vested rights; and 2) the requirement, by adding another required City approval, increases the developers' costs to process their projects. The advantages are not significant. The requirements for a "financing plan" and an "infrastructure sequencing program" are facilitated by the development agreement, but in light of the City's comprehensive impact fee program and extensive body of development standards and Ordinances, these requirements are no longer necessary. Further, development agreements would not be needed to clarify conditions if the conditions are clearly written. Finally, project conditions that cannot be satisfied at final map can be secured by a separate agreement prior to final map approval. On the other hand, the disadvantages of the requirement are significant. First, most developers in Eastern Dublin apply for vesting tentative maps and are thereby able to obtain vested rights. These rights may be adequate for many developers. For developers who desire development agreements, eliminating the requirement will give the City the ability to bargain for consideration in exchange for providing vested rights to the developer. There are no restrictions on what the City can ask for or receive, other than what the developer will agree to provide. Any future development agreements for properties in Eastern Dublin would be freely negotiated. Second, over the years many developers, particularly those that are ready to immediately proceed with development, have expressed displeasure about the need to enter into a development agreement. These developers have expressed concern both about the costs and time associated with drafting, negotiating, and processing the development. Thus, eliminating the requirement will have an economic development benefit in that it will reduce the expense of and expedite the processing of development in Eastern Dublin. The proposed amendments are shown in Attachment 1 with additional text shown with an underline and deleted text shown with a stFikethMu h. The amended text is included in the Planning Commission Resolution as Exhibit A to Attachment 2. CONSISTENCY WITH GENERAL PLAN, APPLICABLE SPECIFIC PLANS The development agreement requirement and its related financing plan and infrastructure sequencing program is unique to the Eastern Dublin Specific Plan There is no comparable provision in the General Plan, nor is there any General Plan direction that the EDSP include these requirements. As amended by the Project, the EDSP would remain internally consistent because other existing City processes insure adequate infrastructure will support development, including impact fees, PD-Planned Development zoning and other application reviews that apply adopted development standards and ordinances. 3 of 5 NOTICING REQUIREMENTS/PUBLIC OUTREACH In accordance with State law a Public Notice was published in the Valley Times and posted at several locations throughout the City. A notice of this hearing was mailed to those requesting such notice ten days before the hearing and the Staff Report and attachments were made available for public review prior to the public hearing in accordance with Government Code Sections 65090 and 65091. A notice of this Public Hearing was also sent to active developers within the Specific Plan area. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with the State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and when applicable, environmental documents be prepared. Staff recommends that the Project be found exempt under the general rule in CEQA Guidelines section 15061(b)(3) that CEQA does not apply where it can be seen with certainty that there is no possibility for a significant effect on the environment. There is no such possibility for the Project since all applicable development standards and ordinances, including payment of impact fees, would continue to apply to development projects to ensure they are supported by needed infrastructure and public utilities. ATTACHMENT: 1) Proposed Eastern Dublin Specific Plan Amendments shown in stFukethreugh and underline. 2) Resolution recommending that the City Council amend the Eastern Dublin Specific Plan to eliminate the requirement for development agreements and related financing plans and infrastructure sequencing programs, with the City Council Resolution attached as Exhibit A. 4of5 GENERAL INFORMATION: APPLICANT: City LOCATION: All properties in the Eastern Dublin Specific Plan area ASSESSORS PARCEL NUMBER: Various GENERAL PLAN LAND USE DESIGNATION: Various SPECIFIC PLAN LAND USE DESIGNATION: Various 1858785.6 5 of 5