Funders were essential for ensuring that Healthy Black Families, the City of Berkeley, the community and allies could complete their work in a timely and effective way. Funders aiming to create change in this and other communities can build on this work and:
Lessons for funders
Lift up trusted community leaders – Community leaders are not always those who step forward first or are recognized by groups in power. Trusted community leaders are those who are pushed forward by the community members themselves.
They create space for dialogue within broad, diverse communities. Funders seeking to support sustainable community-centered change would benefit from ensuring sufficient time to listen to and understand the specific needs of the community and to identify the community’s natural trusted leaders.
Provide core support to build community power – Communities know that while issues and politics will change, the fundamental root causes and issues remain the same.
Communities need support for long-term, sustained organizing to remain connected, unified and ready. The experience and efforts of the Black Berkeley community demonstrate that hardships like displacement severely impact community coherence and voting power. Even without an agenda or specific policy intervention in sight, community connection and base building matters.
Proposed new development in South Berkeley will include affordable housing and storefronts
Convene coalitions – Community groups and local government actors rarely have the space or resources to discuss needs or best practices together. Providing the financial, staffing, and physical resources to support dialogue, coalition building and collaboration will expedite the identification of effective solutions. Funder grants and informational resources made it possible for the City and community to research and create effective community-centered solutions.
Connect efforts to formalize community-centered policy development in local government – Funders can support continued partnerships, strategy development, research and technical assistance to spur innovation. Despite growing awareness and efforts to improve public participation processes for greater inclusion, there is still a long way to go for policymaking to regularly and effectively integrate community priorities. The equity campaign applied here provides a model for lifting up a small but mighty perspective that would have been diminished due to the large plurality of stakeholders in the community.
Stay informed and curious – Public understanding of the issues affecting the residents of South Berkeley deepened over time and helped to create a more inclusive agenda for change. The public can arrive at inclusive solutions to complex community issues by staying curious and learning how experiences might differ within a community. In Berkeley, members of the public involved in Friends of Adeline worked directly with HBF and the community to understand and help advocate for community priorities.
Be a persistent amplifier – Continued pressure from the public helped grow support for improved housing access and affordability, and ensured that the issue remain a priority for local Berkeley leadership to address. Members of the public can support equitable change by amplifying the needs, priorities and solutions of communities of color.
Vote for inclusive, values-aligned leaders – By participating in the democratic process, the broader public elected leaders who were willing to listen to and address not just the priorities of the broader populace, but also the needs of its most vulnerable groups.
Lessons for the public
The public at large played an important role in the creation of an Affordable Housing Preference Policy responsive to the needs of the Black community in Berkeley.
Afterword
This Case Story
Approach
This case story was commissioned by Healthy Black Families, Inc. with funding from the Coro Foundation and developed by Mesu Strategies, LLC. The purpose of this case story is to document the story and lessons learned from the Affordable Housing Preference Policy success to advance equity for Black Berkeley. The aim is to share details on their approach to help inform and guide others who share their vision to achieve equitable community transformation. This case story is not a systematic evaluation of the campaign or its actors.
To inform the development of the case story, Mesu Strategies performed a literature review, and media scan, conducted confidential interviews with stakeholders, applied the PolicyLink Getting Equity Advocacy Results (GEAR) framework and benchmarks of success, and synthesized key learnings.
The literature review looked at peer-reviewed publications, grey literature, and materials provided by HBF and peer-reviewed publications, including:
Educational materials developed for and presented to policymakers regarding possible policy solutions for local community needs (e.g., presentations to Berkeley City Council re Tenant Opportunity to Purchase Act and Affordable Housing Preference Policy, 2021-2022) Educational materials developed for and presented to communities regarding policy opportunities and needs for input (e.g., presentations, question guides, talking points for members of the West and South Berkeley neighborhoods in community meetings and People’s Assemblies, 2021-2022)
Databases of information provided by community members about community priorities (2023) Policy documents (e.g., Adeline Corridor Specific Plan 2020, Affordable Housing Preference Policy 2023)
Podcast links discussing and describing the context and journey for its advocacy (2023-2024) Invitation materials planning for future campaign meetings with BART, SFF, and City of Berkeley (2024)
Anna Cash, City of Berkeley Housing and Human Services, formerly Partnership for the Bay’s Future Ayanna Davis, Healthy Black Families, Inc. and community member Jacqueline McCormick, City of Berkeley Mayor’s Office
Willie Phillips, community member
Wilhelmenia Wilson, Healthy Black Families, Inc. and community member Mesu Strategies conducted confidential interviews with community members and allies involved with the AHPP. All interviewees invited to participate successfully completed an interview. Interviewees received a common set of questions related to their role in AHPP advocacy and perceptions of context, success and challenges. Interviewees included:
05
1. The Great Migration took place from approximately the 1910s to the 1970s.
2. Between 1914-1970, nearly six million African Americans fled the violence of the rural South in search of new lives and opportunities in the North, Midwest, and West.
3. Many home deeds and homeowner association bylaws included racially restrictive covenants that forbade the sale or lease of real estate to <undesirables,= which included Blacks and other people of color. Real estate professionals also engaged in practices that would deter undesirables from moving to majority-white neighborhoods.
4. Weinstein, D. (2004, February 7). SIGNATURE STYLE / Duncan McDuffie / Natural Neighborhoods / Visionary Developer Created Elegant Urban 'Residential Parks'. SFGATE. https://www.sfgate.com/bayarea/
article/SIGNATURE-STYLE-Duncan-McDuffie-Natural-2800658.php
5. Lorey, M. T. (2013). A History of Residential Segregation in Berkeley, California, 1878-1960. The Concord Review, Inc., 1-19. http://www.schoolinfosystem.org/pdf/2014/06/04SegregationinCA24-2.pdf
6. The Fair Housing Center of Greater Boston. (n.d.). 1917: Buchanan v. Warley. Boston Fair Housing. https:// www.bostonfairhousing.org/timeline/1917-Buchanan-v.Warley.html
7. Baldassari, E., & Solomon, M. (2020, October 5). The Racist History of Single-Family Home Zoning. KQED. https://www.kqed.org/news/11840548/the-racist-history-of-single-family-home-zoning
8. The creation of the federal Home Owners’ Loan Corporation (HOLC) in 1933 provided Americans with access to homeownership and social-financial mobility through the availability of 30-year home mortgages.
To determine mortgage worthiness, banks used maps that systematically <redlined= communities deemed poor investments, systematically denying mortgages to Black communities across America.
9. In 1916, the City of Berkeley passed the nation’s first exclusionary single-family housing policy, codifying residential racial segregation and exacerbating the effects of racially restrictive covenants and homeowner association bylaws that restricted the sale or lease of homes to members of certain racial groups.
10. Gambhir, S., Shahid Nawaz, S., & Menendian, S. (2024, May 22). Single-Family Zoning in California: A Statewide Analysis. Othering & Belonging Institute.
https://belonging.berkeley.edu/single-family-zoning-
california-statewide-analysis
11. Community member. (2024, May 22). Personal Interview.
12. Suggs, B., & Rose, C. (2023, February 23). A Walk Through History in the Heart of Berkeley’s Black Community. Berkeleyside. https://www.berkeleyside.org/2023/02/23/black-history-walk-through-south- berkeley
13. Community member. (2024, May 22). Personal Interview.
References06
14. UC Berkeley Digital Humanities. (2024). The Rainbow Sign. The Berkeley Revolution. https:// revolution.berkeley.edu/projects/rainbow-sign/
15. Community member. (2024, June 12). Personal Interview.
16. UC Berkeley Digital Humanities. (2024). History of Black House. The Berkeley Revolution. https:// revolution.berkeley.edu/history-black-house/
17. Hughes, K. (n.d.). Zoning A Brief Berkeley History. Berkeley Revolution. https://revolution.berkeley.edu/ assets/Zoning-a-Brief-Berkeley-History.pdf
18. Owens, D. (2022, January 14). The History of Gentrification in Berkeley: Part II. Retrieved from Darrell Owen's Substack: https://darrellowens.substack.com/p/the-history-of-gentrification-in-111
19. Calandrillo, S., & Dunn, K. (2024, February 1). The New Redlining: How Progressive Policies Restrict the Development of Housing Supply and Perpetuate America's Racist Property Law Past. 77 Florida Law Review, Forthcoming (2024-25). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4744125
20. Weller, C. (2019, December 5). African Americans Face Systematic Obstacles to Getting Good Jobs.
American Progress. https://www.americanprogress.org/article/african-americans-face-systematic-obstacles- getting-good-jobs/
21. Owens, D. (2022, January 14). The History of Gentrification in Berkeley: Part II. Darrell Owen's Substack. https://darrellowens.substack.com/p/the-history-of-gentrification-in-111
22. Ibid.
23. Dinkelspiel, F. (2016, June 29). Berkeley Homelessness: A Timeline from 1982 to 2016. Berkeleyside. https://www.berkeleyside.org/2016/06/29/berkeley-homelessness-a-timeline-from-1982-to-2016
24. Rossi, P. H. (1990, August). The Old Homeless and the New Homelessness in Historical Perspective.
American Psychologist, 45(8), 954-959. American Psychology. https://psycnet.apa.org/ fulltext/1990-30752-001.pdf?auth_token=2a252d284ad10c891f86b38fe3643295e17448b7
25. Owens, D. (2022, January 14). The History of Gentrification in Berkeley: Part II. Darrell Owen's Substack. https://darrellowens.substack.com/p/the-history-of-gentrification-in-111
26. Massey, D., Albright, L., & Rugh, J. (2015, May 4). Race, Space, and Cumulative Disadvantage: A Case Study of the Subprime Lending Collapse. PMC PubMed Central. https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC4962882/
27. City of Berkeley. (n.d.). Measure O: Affordable Housing Bond. https://berkeleyca.gov/your-government/ our-work/bond-revenue-measures/measure-o United States Census. (n.d.). Quick Facts Berkeley City, California. United States Census. https://www.census.gov/quickfacts/fact/table/berkeleycitycalifornia/ PST045219?#viewtop
28. Markovich, A. (2022, July 17). A changing Berkeley: 6 maps show how the past decade has remade the city. Berkeleyside. https://www.berkeleyside.org/2022/07/17/berkeley-population-demographics-housing- census-2020-maps
29. Link, B. G., & Phelan, J. (1995). Social Conditions as Fundamental Causes of Disease. Journal of Health and Social Behavior, Spec No, 80–94. https://pubmed.ncbi.nlm.nih.gov/7560851/
30. Collins, C., & Williams, D. (2001, September). Racial Residential Segregation: A Fundamental Cause of Racial Disparities in Health. Public Health Reports, 116(5), pp. 404-416. Sage Journals. https:// journals.sagepub.com/doi/abs/10.1093/phr/116.5.404#core-collateral-more
31. City of Berkeley Public Health Division. (2018). City of Berkeley Health Status Report. Berkeley, CA. https:// berkeleyca.gov/sites/default/files/2022-01/health-status-summary-report-2018.pdf
32. PolicyLink and USC PERE. (2024). How Is the Black Population Doing in the Bay Area?. National Equity Atlas. https://nationalequityatlas.org/lab/black-pop-bayarea
33. Ibid.
34. Cash, A. (2022). Housing Preference Policy. Memorandum to the City of Berkeley Housing Advisory Commission from the City of Berkeley Health and Human Services Division.
35. Cash, A., Davis, A., Shankute, H., & Uberti, M. (2021). Berkeley Challenge Grant for Anti-Displacement Policies. Joint Presentation. Berkeley, CA. https://berkeleyca.gov/sites/default/files/legislative-body-meeting- attachments/2021-01-20%20Item%207%20Presentation.pdf
36. City of Berkeley. (n.d.). CITY OF BERKELEY 2018-2019 STRATEGIC PLAN. Berkeley, CA. https:// berkeleyca.gov/sites/default/files/2022-01/Berkeley-Strategic-Plan.pdf
37. Williams-Ridley, D. (2023, July 11). Referral Response: Affordable Housing Preference Policy for Rental Housing Created Through the Below Market Rate and Housing Trust Fund Programs. City Council Report. https://berkeleyca.gov/sites/default/files/
documents/2023-07-11%20Item%2032%20Referral%20Response%20Affordable.pdf
38. Association of Bay Area Governments. (2024, May). Case Study: Berkeley Housing Preference Policy.
ABAG. https://abag.ca.gov/sites/default/files/documents/2024-05/Case%20Study%20- %20Berkeley%20Housing%20Preference%20Policy_5-10-2024.pdf
39. City of Berkeley. (n.d.). Housing Preference Policy Administrative Guidelines. https://berkeleyca.gov/sites/ default/files/documents/Berkeley_HousingPreferencePolicy_Admin_Guidelines.pdf
40. Community member. (2024, May 22). Personal Interview.
41. Ibid.
42. Hailu, D. (Host). (2023, July 19). Equity! - Healthy Black Families. (Episode 4) [Audio Podcast Episode]. In Telling Our Stories: The Housing Chronicles. https://healthyblackfam.org/podcast
43. Community member. (2024, June 12). Personal Interview.
44. Hailu, D. (Host). (2023, July 19). Equity! - Healthy Black Families. (Episode 4) [Audio Podcast Episode]. In Telling Our Stories: The Housing Chronicles. https://healthyblackfam.org/podcast
45. HBF. (n.d.). E4BB Brochure [Brochure]. Berkeley, CA: Healthy Black Families. https:// static1.squarespace.com/static/6179a5a21df0c4182effd99a/t/65a97ba430aa40226fad0d23/1705606059258/ Updated+E4BB+BrochurePrintReady.pdf
46. Cash, A. (2022). Housing Preference Policy. Memorandum to the City of Berkeley Housing Advisory Commission from the City of Berkeley Health and Human Services Division.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/
ACTION CALENDAR
November 19, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Sharon Friedrichsen, Budget Manager, City Manager’s Office Subject: Amendment: FY 2025 Annual Appropriations Ordinance
RECOMMENDATION
Adopt first reading of an Ordinance amending the FY 2025 Annual Appropriations Ordinance No. 7,926–N.S. for fiscal year 2025 based upon recommended re- appropriation of committed FY 2024 funding and other adjustments authorized since July 1, 2024.
FISCAL IMPACTS OF RECOMMENDATION
On June 25, 2024 the City Council adopted the FY 2025 Budget, authorizing gross appropriations of $793,319,711 and net appropriations of $686,125,119 (net of dual appropriations).
This first amendment to the Annual Appropriations Ordinance, if approved, would total $291,018,200 (gross), increasing the gross appropriations to $1,084,337,911 and represent the re-authorization of funding previously committed in FY 2024 and new expenditures added after the adoption of the FY 2025 Budget on June 25, 2024, including new grant fund appropriations.
Requested funding includes:
1. Encumbered contract obligations from FY 2024 totaling $111,061,845;
2. Re-appropriated unencumbered FY 2024 funding of $137,703,017; and
3. Changes to fund appropriations, primarily due to receipt of new grants and use of available fund balances, in the amount of $42,253,338. However, this amount also includes $4,575,706 in new General Fund requests for FY 2025.
The proposed changes to the General Fund totals $48,143,108, which includes encumbrances of $30,334,347, unencumbered carryover requests of $13,233,055, and adjustments of $4,575,706. These amounts are subject to change based upon the City Manager’s recommendations and the recommendations of the Budget and Finance Policy Committee.
25
Amendment: FY 2025 Annual Appropriations Ordinance ACTION CALENDAR November 19, 2024
BACKGROUND
Purpose of Amendment
The Annual Appropriations Ordinance (AAO) establishes the expenditure limits by fund for FY 2025. Throughout the year, the City takes actions that amend the adopted budget.
These may include, but are not limited to, the acceptance of new grants, revisions to existing grants, adjustments to adopted expenditure authority due to emergency needs and other funding needs that occur after budget adoption, and transfers in accordance with Council’s fiscal policies.
The adopted budget is also amended annually to reflect the re-appropriation of prior year funds for contractual commitments (i.e. encumbrances) as well as unencumbered carryover of unexpended funds previously authorized for continuation of capital and other specific projects, and for one-time, non-recurring purposes. These budget modifications are periodically presented to the Council in the form of an Ordinance amending the Annual Appropriations Ordinance, which formally requires a two-thirds vote of the City Council.
When Council adopts an appropriations ordinance (budget), it is based on projected revenues and expenditures. If fund balances do not support the requested level of expenditures, no carryover or other adjustment is recommended.
FY 2024 Official Year-end closing is still pending. However, in order to assess the amount of funding that is available for carryover and adjustment requests, a preliminary Unassigned Fund Balance calculation, based on unaudited estimated actuals, was presented at the November 7, 2024 Budget and Finance Policy Committee meeting. The City is estimated to end FY 2024 General Fund with a $15 million shortfall, thus requiring the use of the fund balance. This requires requests for unencumbered carryovers and other adjustments to be evaluated and prioritized for items that are critical for public health and safety, relate to mandated functions and/or are time sensitive.
Carryover Process
Departments were asked to submit information regarding the reasons for the unencumbered carryover requests to assist staff in determining which funds should be carried into FY 2025. In prior years, funds have been approved for carryover from one year to the next based on funding availability.
Types of Carryover
FY 2025 Encumbrance Rollovers, totaling $111,061,845 reflect contractual obligations entered into in fiscal year 2024 which had not been paid as of June 30, 2024. Funding for these “encumbered” commitments is brought forward into the current fiscal year to provide for payment of these obligations.
FY 2025 Unencumbered Carryover totals $137,703,017 and reflects the carryover of funding from FY 2024 appropriated by the City Council for specific purposes that had not been encumbered by year-end.
Amendment: FY 2025 Annual Appropriations Ordinance ACTION CALENDAR November 19, 2024
FY 2025 Other Adjustments total $42,253,338 and reflect adjustments required or approved since the budget adoption. Many of these adjustments are within non- discretionary funds and reflect the appropriation of grant funding and the use of available fund balance.
The proposed changes, presented in their entirety in Exhibit A, are summarized as follows:
This report will be discussed with the Budget & Finance Policy Committee at their November 7, 2024 and November 14, 2024 meetings.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the act of adopting the budget/appropriations ordinance/amendments. Actions included in the budget will be developed and implemented in a manner that is consistent with the City’s environmental sustainability goals and requirements.
RATIONALE FOR RECOMMENDATION
The recommendation allows the City to amend the FY 2025 Adopted Budget, re- appropriating funds from FY 2024 to FY 2024 for contractual commitments that need to be paid and revising the budget to reflect approved carryover requests in both discretionary and non-discretionary funds.
The recommendations in this report deal with the unencumbered carryover in the funds listed above and the other adjustments in all funds. Staff has conducted a detailed analysis of the individual carryover requests submitted by departments and is presenting carryover recommendations for projects that are either currently under contract, represent Council priorities, and/or are considered critical to fund at this time.
ALTERNATIVE ACTIONS CONSIDERED
No other alternatives have been considered.
CONTACT PERSON
Sharon Friedrichsen, Budget Manager, City Manager’s Office, 981-7000 Maricar Dupaya, Senior Management Analyst, City Manager’s Office, 981-7000 Encumbered
Recommended
Unencumbered
Recommended
Other
Adjustments Total
General Fund (011) 30,334,347$ 13,233,055$ 4,575,706$ 48,143,108$ Capital Improvement Fund (501) 6,521,803$ 20,101,009$ 440,000$ 27,062,813$ All Other Funds 74,205,694$ 104,368,953$ 37,237,632$ 215,812,279$ Total 111,061,845$ 137,703,017$ 42,253,338$ 291,018,200$
Agenda Item
Attachment
This attachment will be provided to the City Council and the public prior to the meeting (including posting to the city website) in accordance with the requirements for
revised and supplemental materials in the Open
Government Ordinance.
City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900
The City of Berkeley, City Council’s Web site:
http://berkeleyca.gov
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/
ACTION CALENDAR
November 19, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Amendments to BMC Chapter 22.16, Development Agreement Procedures
RECOMMENDATION
Adopt first reading of an Ordinance amending BMC Chapter 22.16, “Development Agreement Procedures.”
SUMMARY
Development Agreements (DAs) are negotiated contracts between a public agency and a project sponsor that govern land use, benefiting both parties. Although BMC Chapter
22.16 outlines DA procedures, no DAs have been executed since the Chapter’s adoption in 1991. City staff propose amendments to streamline the process in alignment with State law aiming to encourage the use of DAs for large projects and maximize community benefits.
FISCAL IMPACTS OF RECOMMENDATION
Developing streamlined procedures that attract developers and promote the completion of agreements on large projects could increase community benefits, local investments and workforce opportunities for Berkeley residents.
CURRENT SITUATION AND ITS EFFECTS
BMC Chapter 22.16 “Development Agreement Procedures” establishes the City process and requirements for DAs. Since its adoption in 1991, no DAs have actually been executed. Staff speculate that project applicants are deterred by the complexity of the Chapter’s additional local requirements, which exceed what is required under State law.
Primarily, BMC Chapter 22.16 introduces additional public hearings—some mandated and others optional, as determined by advisory bodies—leading to uncertainty regarding the timeline for negotiation and completion of a DA. The additional procedural steps mandated by the BMC 22.16 have limited the use of DAs as a planning tool to advance City priorities for complex development projects.
26
Development Agreement Procedures ACTION CALENDAR November 19, 2024
The proposed ordinance amendments would streamline the Development Agreement procedures by revising these three items:
1. Removing the requirement that the City Manager obtain approval from the Planning Commission and City Council to determine whether a DA is an appropriate entitlement. Instead, the City Manager would determine whether a DA is the appropriate entitlement after reviewing a project sponsor’s application.
The Planning Commission and City Council would retain authority to review and approve any DAs.
2. Removing the requirement that the Planning Commission hold at least one preliminary community workshop prior to the commencement of DA negotiations.
The Planning Commission and City Council would still hold public hearings for the review and approval of the DA, and applicants would be encouraged to perform community outreach.
3. Removing the ability of the Zoning Adjustments Board, Design Review Committee, and Landmarks Preservation Commissions to call their own public hearings prior to the Planning Commission’s consideration a DA. The Planning Commission would still be encouraged to seek recommendations from these bodies on policies or programs pertaining to each body’s scope of expertise.
In addition to these three key amendments, staff propose the addition of section titles, the expansion of existing titles, and other copy edits.
BACKGROUND
Thirty-five years ago, the City of Berkeley negotiated a long-term DA with Bayer Pharmaceuticals for its West Berkeley campus, setting a precedent for public/private partnerships. The City adopted its current DA procedures shortly after that agreement was reached.
Development Agreements are negotiated contracts between a public agency and project sponsor that govern land uses within a specific area. A DA establishes site- specific standards for a project that must also be consistent with local land use policies, and may freeze existing zoning to provide assurance that the project will not be blocked by future regulatory changes.
A DA can reduce the risk a project sponsor faces by vesting certain rights, and can benefit a city by funding improvements that would not otherwise be required under zoning. Other benefits, such as off-site improvements, community benefits, or project components, can also be negotiated. The process is elective and both parties must agree to enter into the negotiating process.
Development Agreement Procedures ACTION CALENDAR November 19, 2024
The state development agreement statute, codified in California Government Code Sections 65864-65869.5, was adopted in 1979 to provide developers with early certainty about the requirements that would apply to their projects. In exchange for providing large-scale infrastructure or other benefits, DAs help developers obtain vested rights, thereby reducing their risk and increasing confidence among investors and creditors. DAs are often accompanied by specific plans that establish unique development and zoning standards for the project.
A. City Council Referrals
The proposed amendments to BMC Chapter 22.16 respond to two City Council referrals (Attachment 2): one from September 20, 2011, authored by then-Mayor Tom Bates, and a second referral from October 30, 2018, authored by Mayor Jesse Arreguin and co-sponsored by Councilmembers Sophie Hahn, Lori Droste, and Kate Harrison. Both referrals directed staff to update and streamline the DA procedures consistent with State law.
B. Planning Commission Comments
On September 4, 2024, the Planning Commission conducted a public hearing and City staff presented amendments to BMC Chapter 22.16 (Attachment 4). The Commissioners expressed support for the decision to update the Development Agreement Procedures and the potential community benefits that could result from the use of DAs. The Planning Commission recommended that City Council adopt the proposed ordinance, with revisions (M/S Mikiten/Vincent. Ayes: Merker, Vincent, Moore, Mikiten, Marthinsen, Twu, Hauser, and Ghosh. Noes: None. Abstain: Oatfield. Absent:
None. (8-0-1-0)).
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The project is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines, which provides that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
RATIONALE FOR RECOMMENDATION
The additional procedural steps mandated by the City’s current ordinance have limited the use of DA procedures as a standard planning tool for complex development projects. The proposed Ordinance would reduce the steps and meetings required, while still maintaining requirements mandated by state law. A simplified DA procedure will attract developers, increase community benefits, and boost local investment.
ALTERNATIVE ACTIONS CONSIDERED
The Council could consider taking no action on the recommendations proposed by staff.
In this case, the BMC Chapter 22.16 will remain in place, and developers would remain unlikely to approach the City with new proposed agreements.
Development Agreement Procedures ACTION CALENDAR November 19, 2024
CONTACT PERSON
Uttara Ramakrishnan, Associate Planner, Planning and Development Department, 510- 981-7483
Attachments:
1: Draft Ordinance Amending BMC Chapter 22.16 Development Agreement Procedures.
2: City Council Referrals
September 20, 2011 City Manager Referral: Revisions to the Development Agreement Procedures.
October 30, 2018 City Manager and Planning Commission Referral: Update BMC Chapter 22.16 Development Agreement Procedure
3: September 4, 2024 – Planning Commission staff report.
ORDINANCE NO. -N.S.
DEVELOPMENT AGREEMENT PROCEDURES AMENDMENTS
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1. That Berkeley Municipal Code Chapter 22.16 is amended to read as follows:
DEVELOPMENT AGREEMENT PROCEDURES AMENDMENTS
Chapter 22.16
DEVELOPMENT AGREEMENT PROCEDURES
Sections:
22.16.010 Intent and purpose.
22.16.020 Definitions.
22.16.030 Applications.
22.16.040 Contents of development agreements.
22.16.050 Consideration of proposed development agreements and their enabling ordinances.
22.16.060 Recordation.
22.16.070 Annual review.
22.16.080 Amendment or cancellation.
22.16.090 Miscellaneous provisions.
Section 22.16.010 Intent and purpose.
A. Declaration of intent and purpose.
1. The City Council finds that development agreements can 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, allocate costs to achieve maximum utilization of public and private resources in the development process, and assure that appropriate measures to enhance and protect the environment are achieved.
1. Intent. A development agreement is a contract that is negotiated and voluntarily entered into by the City and an applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.
Development agreements provide assurance to the applicant that the project may proceed in accordance with existing policies, rules and regulations, and subject to conditions of approval, thereby strengthening the public planning process, encouraging private participation in comprehensive planning, and reducing the economic costs of development. Development agreements promote
the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved.
2. The City Council further finds and determines that the public health, safety and general welfare will be furthered by the adoption of an ordinance establishing procedures for entering into and administering development agreements to accomplish the foregoing purposes and corresponding benefits.
2. Purpose. Where there are unique or compelling circumstances, development agreements may be used to advance community benefits that are mutually beneficial to the City and the applicant and cannot otherwise be achieved through the land use regulatory process.
Section 22.16.020 Definitions.
A. Definitions. The following terms when used in this chapter shall have the following respective meanings:
1. "City" means the City of Berkeley, a municipal corporation.
2. "City Clerk" means the Berkeley City Clerk.
3. "City Council" means the Berkeley City Council.
4. "City Manager" means the Berkeley City Manager or the person they designate to carry out all or part of the responsibilities for implementing this chapter.
5. "Applicant" means a person who has a legal or equitable interest in real property, and who applies for a development agreement for a project on that property pursuant to the procedures specified in this chapter, and who executes and is bound by the terms of the development agreement. "Applicant" includes a successor in interest to the rights and duties of the original applicant for a development agreement.
6. "Development agreement" means a development agreement entered into between the City and an applicant pursuant to this chapter.
7. "General plan" means the Berkeley General Plan.
8. "Person" means an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body, tribunal or any other form of business or legal entity.
9. "Planning Commission" means the Planning Commission of the City of Berkeley.
10. "Project" means the development project that is the subject of a development agreement.
Section 22.16.030 Applications.
A. Authority for Adoption. An applicant for a development project may request that the City review the application as a development agreement application in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864-65869.5. In the event of any conflict between these statutory provisions and this chapter, this chapter shall control, to the extent permitted by state law.
B. Forms and Information. The applicant shall submit an application for a development agreement on a form prescribed by the City Manager. The City Manager shall identify submittal requirements for applications for development agreements. They may require an applicant to submit such additional information and supporting data as they consider necessary to process the application.
C. Fees. The applicant shall pay such fees and charges for the filing and processing of applications for development agreements and the administration of approved development agreements, including annual reviews, in amounts as may be established by resolution of the City Council.
D. Qualified Applicant. A qualified applicant shall have a legal or equitable interest in the real property which is the subject of the proposed development agreement. The City Manager shall require an applicant to submit proof of their interest in the real property, and of the authority of any agent to act for the applicant.
E. Initial review of application.
1. Complete Application. The City Manager shall review each application to determine whether it is completeness. If the application is deemed complete, the City Manager shall, within forty-five (45) days after submittal of the application, inform the applicant.
2. Incomplete Application. If the application is found to be incomplete, the City Manager shall, reject the application and, within forty-five (45) days after submittal of the application, shall inform the applicant that the application has been rejected and provide a list of the items necessary to properly complete the application. Applicant may appeal the City Manager's determination that the application is incomplete to the City Council.
Any such appeal must be filed within fifteen days following the mailing of written notice that the application is incomplete.
2. Within forty-five days after determining a development agreement application to be complete, the City Manager shall make a written recommendation to the Planning Commission whether a development agreement is the appropriate form
of entitlement for the proposed project, and shall place it on the Planning Commission agenda at the earliest practicable date. The Planning Commission shall make a recommendation to the City Council concerning appropriateness within thirty days after the date of the meeting at which the item first appears on the commission agenda. If the Planning Commission fails to make a recommendation within this time period, then the City Manager's recommendation shall be placed on the City Council agenda as specified in Section 22.16.030 of this chapter. The following criteria shall be followed in making these recommendations:
a. The project is preliminarily determined to be consistent with the general plan and any applicable
specific plan, or applicant has submitted an application for any necessary amendments to the general plan or specific plan; and
b. EITHER: These three criteria are met:
(1) The project site is three acres or more in area.
(2) The project proposes to construct or rehabilitate multiple structures on the site, and the total floor
area to be constructed and rehabilitated is at least one hundred thousand square feet.
(3) The project envisions a long-term or phased build-out such that, at the time of application, designs of
all buildings and improvements cannot be reasonably specified in the manner required of use permit applications.
OR: There are other unique or compelling reasons why the project or the potential benefits to the community would warrant consideration in the form of a development agreement.
3. The City Manager's recommendation under subsection 22.16.030E, 2 of this chapter shall include an analysis of how the proposed project comports with regulations of the zoning district in which the property lies, including identification of any aspects of the project which would require a variance were the application subject to review and action under the zoning ordinance.
4. The Planning Commission's recommendation, or, if the Planning Commission does not make a timely recommendation, then the City Manager's recommendation, under subsection 22.16.030E, 2 of this chapter shall be placed on the City Council agenda at the earliest practicable date as an action item, and the City Council may accept or reject the recommendation after consideration of the criteria enumerated in subsection 22.16.030.E, 2 of this chapter.
5. The City Council shall make a determination whether a development agreement is the appropriate form of entitlement for the proposed project within thirty days after the date of the meeting at which the item first appears on the City Council agenda. If the City Council fails to make a determination within this time
period, then the Planning Commission's recommendation, or, if the Planning Commission failed to make a timely recommendation, then the City Manager's recommendation, under subsection 22.16.030E, 2 of this chapter, shall become the City's final determination as to whether a development agreement is the appropriate form of entitlement for the proposed project.
Section 22.16.040 Contents of development agreements.
A. Project Description. A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes.
It shall contain provisions concerning its transferability.
B. Improvements & Fees. A development agreement may include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.
C. Requirement for Project Approvals. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.
D. CEQA. A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project including those conditions and restrictions proposed in any environmental impact report or mitigated negative declaration applicable to the project prepared and certified under the California Environmental Quality Act, and the City's regulations with respect thereto, in order to eliminate or mitigate adverse environmental impacts of the project.
E. Phased Development. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.
F. Public Financing. If the development agreement requires applicant financing of necessary public facilities, it may include terms.
G. Indemnification. A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the City harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.
H. Performance Guarantee. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.
I. Terms. A development agreement shall be a contract that is negotiated and voluntarily entered into by City and applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.
Section 22.16.050 Consideration of proposed development agreements and their enabling ordinances.
A. Community workshop; public notice. The Planning Commission shall conduct at least one community workshop prior to commencement of the negotiations referenced in subsection 22.16.050B of this chapter. The purpose of the community workshop(s) is to provide members of the Planning Commission, other advisory bodies to the City Council, and members of the public the opportunity to recommend environmental mitigations, community benefits and other provisions of a development agreement to the City Manager for negotiation. Notice of the community workshop(s) shall be mailed fourteen calendar days in advance to members of the City Council, Planning Commission, and other designated advisory bodies. In addition, notice of this chapter shall be mailed to owners and occupants of all property within five hundred feet of the project site and shall be published in display ads in newspapers of general circulation in the City of Berkeley.
A.B. Negotiations. The City Manager shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council. The City Council may, but need not, appoint a subcommittee of the City Council to advise the City Manager on the negotiations. The participate in the negotiations. City Council shall appoint a community advisory committee to consult with the City Manager and any subcommittee appointed by the City Council during negotiations. In appointing the members of this committee, the City Council shall give due consideration to obtaining representative views of residents and businesses in affected communities. The City Manager shall not commence negotiations with the applicant as to any specific component or provision of the development agreement until after the Planning Commission has conducted a community workshop pursuant to subsection 22.16.050B of the chapter.
B C Advisory bodies. The Planning Commission shall advise the City Council on development agreements, including the matters specified in subsection 22.16.050 (E) of this chapter. In addition, the City Manager shall designate the following City boards and commissions as advisory bodies to t The Planning Commission may seek recommendations from the following boards or commissions consistent with the charge of those bodies as set forth below. and the City Council on the following aspects of a proposed development agreement where the project otherwise would be subject to such board or commission's jurisdiction or review were the applicant required to proceed under the City's zoning, design review, or landmarks preservation rules:
1. Zoning Adjustments Board - permitted uses and development standards, community benefits and mitigation programs, and future discretionary review for use permits.
2. Design Review Committee - development standards as they relate to existing and planned urban design of the surrounding area, architectural guidelines, site plan and site plan standards.
3. Landmarks Preservation Commission - development standards as they relate to designated landmarks or structures of merit on the subject site or adjacent sites, mitigation programs for loss of designated landmarks, and demolition of non-residential buildings forty years old or older.
C D. Availability of draft development agreement. The City Manager shall make a draft of the proposed development agreement available for public review at least thirty (30) days prior to the Planning Commission’s public hearing on the proposed development agreement.
The Zoning Adjustments Board, the Design Review Committee and the Landmarks Preservation Commission, may conduct one or more public hearings or community workshops during the review period for the draft development agreement, consistent with the scope of their roles outlined in subsection 22.16.030E, 2 of this chapter.
D E. Planning Commission public hearing. Prior to making a recommendation for City Council action on a proposed development agreement, the Planning Commission shall hold a noticed public hearing to consider comments on the development agreement from other advisory bodies and from members of the public. Notice of the intention to consider adoption of a development agreement shall be given as provided in California Government Code Sections 65090 and 65091public hearing to make a recommendation concerning adoption of a development agreement shall be given as provided in subsection 22.16.050A of this chapter, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement. The Planning Commission public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.
E.F. Recommendation by Planning Commission. Within thirty days after closing its public hearing, the Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission's determination and supporting reasoning whether or not the proposed development agreement:
1. Is consistent with the goals, objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan.
2. Is compatible with the uses authorized in, and the zoning district in which the real property is located.
3. Has duly considered City mitigation programs in effect at the time of execution of the agreement.
4. Will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood and to property and improvements in the neighborhood.
5. Complies with the provisions of the California Environmental Quality Act and City's procedures adopted pursuant thereto.
F G. City Council public hearing. The City Council shall hold a noticed public hearing prior to adoption of any development agreement. Notice of the intention to consider adoption of a development agreement shall be given as provided in California Government Code Sections 65090 and 65091public hearing to consider adoption of a development agreement shall be given as provided in subsection 22.16.050A of this chapter, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement. The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.
G H. Decision by City Council.
1. After the City Council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the Planning Commission; or in the event the Planning Commission has failed to make a recommendation pursuant to subsection 22.16. 050 E F of this chapter, the City Council shall approve, disapprove or conditionally approve the development agreement. The City Council may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred back to it by the City Council.
2. The City Council shall not approve a proposed development agreement unless it finds that its provisions are consistent with the general plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with proposed general plan or specific plan provisions which are to be adopted concurrently with the approval of the proposed development agreement. A finding of consistency may be made if, considering the general plan and/or specific plan as a whole and balancing competing provisions as appropriate, the City determines that the proposed development agreement does not conflict with the provisions of the general plan and/or specific plan. This finding need not be supported by detailed explanation or factual findings.
The City Council shall not approve a proposed development agreement that includes a subdivision, unless the agreement provides that any tentative map prepared for the subdivision will comply with California Government Code Section 66473.7.
Notwithstanding any other provision of law, including Government Code Section 65867.5, this subsection shall not be interpreted to impose upon the City any of the legal requirements applicable to general law cities but not charter cities. with respect to general plan or specific plan consistency, including without limitation any prohibition on a finding of general plan consistency in the absence of a complete, legally adequate general plan.
3. A proposed development agreement shall be executed by the applicant before it is placed before the City Council for consideration at a public hearing.
H I. Approval of development agreement. The City Council shall have the exclusive authority to approve the development agreement. Approval of a development agreement shall be by ordinance.
Section 22.16.060 Recordation.
A. Execution and recordation of development agreement.
1. Within ten days after the ordinance approving the development agreement takes effect, the City Manager shall execute the development agreement on behalf of the City, and the City Clerk shall record the development agreement with the Alameda county County recorderRecorder.
2. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the City terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the City Clerk shall record notice of such action with the Alameda County Recorder.
Section 22.16.070 Annual review.
A. Time for and initiation of review.
1. The City Manager shall review each approved development agreement at least once a year at which time the applicant shall be required to demonstrate compliance with the provisions of the development agreement.
2. The applicant shall initiate the required annual review by submitting a written request at least sixty (60) days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the City Manager to demonstrate compliance with the provisions of the development agreement. The burden of proof by substantial evidence of compliance is upon the applicant.
B. Finding of compliance. If the City Manager, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the City Manager shall issue a finding of compliance, which shall be in recordable form and may be recorded with the county recorder after conclusion of the review.
C. Finding of noncompliance.
1. If the City Manager finds the applicant has not complied with the provisions of the development agreement, the City Manager may issue a finding of noncompliance which may be recorded by the City with the county recorder after it becomes final. The City Manager shall specify in writing to the applicant the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance.
2. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or modification pursuant to subsection 22.16.080B of this chapter.
D. Appeal of determination. Within ten (10) days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the City Manager and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.
Section 22.16.080 Amendment or cancellation.
A. Cancellation or modification by mutual consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in subsections 22.16.050(D)E and (F) G of this chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the City Manager.
B. Termination or modification after finding of noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the City Manager may refer the development agreement to the City Council for termination or modification. The City Council shall conduct a public hearing. After the public hearing, the City Council may terminate the development agreement modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance C. Rights of the parties after cancellation or termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the City.
Section 22.16.090 Miscellaneous provisions.
A. Effect of development agreement.
1. Unless otherwise provided by the development agreement, the City’s rules, regulations, and official policies governing permitted uses of the property land, governing density, and governing design, and improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those City rules, regulations, and official policies in force at the time of execution of the agreement. The applicant shall not be exempt from otherwise applicable City ordinances or regulations pertaining to persons contracting with the City.
2. 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 in the development agreement. A development agreement shall not prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.
3. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals
B. Rules affecting development agreement. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may shall be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.
C. Interpretation. This chapter governs the interpretation of any development agreement approved under this chapter.
D. Enforcement of a development agreement. The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are non- exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.
E. Severability Clause. Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter and the development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in the development agreement.
F. Judicial review; time limitation.
1. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure; and judicial review of any City action taken by the City pursuant to this chapter, other than initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.
2. 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 ninety days after the effective date of the decision.
G. Notice requirements. The notice requirements contained in subsections
22.16.050A, E and G of this chapter are directory and not mandatory. The failure of any person to receive notice required by law or this chapter does not affect the authority of the City to enter into a development agreement.
H. Irregularity in proceedings. No action, inaction, or recommendation regarding a 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 the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained 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 not a presumption that an error is prejudicial or that injury was done if an error is shown.
Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
Office of the Mayor
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7100 ● TDD: (510) 981-6903 ● Fax: (510) 981-7199 E-Mail: [email protected]
CONSENT CALENDAR
October 30, 2018
To: Honorable Members of the City Council
From: Mayor Jesse Arreguín, Councilmember Sophie Hahn, Councilmember Lori Droste, and Councilmember Kate Harrison
Subject: Referral to the City Manager and Planning Commission: Update BMC Chapter
22.16 Development Agreement Procedures
RECOMMENDATION
Refer to the City Manager and Planning Commission to review and update the Berkeley Municipal Code Chapter 22.16 Development Agreement Procedures to create a streamlined process that maximizes community benefits and conforms to State law.
BACKGROUND
A Development Agreement (DA) is a contract between a local jurisdiction and property owner or applicant that sets standards and mitigations for developing a site. They can be an important land use tool that balance the needs of the developer – such as setting consistent zoning laws over the course of the agreement - with the needs of the community. Mitigations or community benefits that result from DAs can include improvements to adjacent streets, sidewalks, right of ways, and public spaces, as well as the payment of “in lieu” fees that go towards funds for the public good.
Nearly 30 years ago, the City of Berkeley successfully negotiated a long-term DA with Bayer Pharmaceuticals regarding their West Berkeley site, which was one of the earliest biopharmaceutical manufacturing facilities. Since then, it has served as a model for public/private partnerships. After negotiations were complete, the City Council adopted Chapter 22.16 of the Berkeley Municipal Code, Development Agreement Procedure, to put in place a process for future projects. However, since its adoption in 1991, not a single applicant has utilized the process due to its complexity. Additionally, our Development Agreement Procedure is non-complaint with State law.
In 2011, Council referred to the City Manager to develop revisions to the BMC Development Agreement Procedures so that there would be more consistent with State law. This referral was never implemented.
With the landmark agreement between the City and Bayer set to expire in 2022, the need to have a streamlined procedure in place for other potential large developments in the future, we are overdue to review and update the existing process. Updating our DA procedure will ensure that the city can successfully and efficiently work with future
[Title of Report] CONSENT CALENDAR
October 30, 2018
applicants to complete comprehensive plans for large projects, resulting in maximum community benefits and positive impacts to our economic development.
FINANCIAL IMPLICATIONS
Staff time. Developing streamlined procedures that attract developers and ensure the completion of agreements on large projects, could greatly increase community benefits, local investments and workforce opportunity for Berkeley residents, while also reducing staff resources during process.
ENVIRONMENTAL SUSTAINABILITY
No environmental impacts.
CONTACT PERSON
Mayor Jesse Arreguín 510-981-7100
Attachments:
1. BMC Chapter 22.16 Development Agreement Procedures
2. September 20, 2011 City Manager Referral: Revisions to the Development Agreement Procedures
Chapter 22.16
DEVELOPMENT AGREEMENT PROCEDURES
Sections:
22.16.010 Intent and purpose.
22.16.020 Definitions.
22.16.030 Applications.
22.16.040 Contents of development agreements.
22.16.050 Consideration of proposed development agreements.
22.16.060 Recordation.
22.16.070 Annual review.
22.16.080 Amendment or cancellation.
22.16.090 Miscellaneous provisions.
22.16.010 Intent and purpose.
A. Findings and declaration of intent.
1. The City Council finds that development agreements can 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, allocate costs to achieve maximum utilization of public and private resources in the development process, and assure that appropriate measures to enhance and protect the environment are achieved
2. The City Council further finds and determines that the public health, safety and general welfare will be furthered by the adoption of an ordinance establishing procedures for entering into and administering development agreements to accomplish the foregoing purposes and corresponding benefits. (Ord. 6033-NS § 1, 1991)
22.16.020 Definitions.
A. Definitions. The following terms when used in this chapter shall have the following respective meanings:
1. "City" means the City of Berkeley, a municipal corporation.
2. "City Clerk" means the Berkeley City Clerk.
3. "City Council" means the Berkeley City Council.
4. "City Manager" means the Berkeley City Manager or the person (s)he designates to carry out all or part of the responsibilities for implementing this chapter.
5. "Applicant" means a person who has a legal or equitable interest in real property, and who applies for a The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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development agreement for a project on that property pursuant to the procedures specified in this chapter, and who executes and is bound by the terms of the development agreement. "Applicant" includes a successor in interest to the rights and duties of the original applicant for a development agreement.
6. "Development agreement" means a development agreement entered into between the City and an applicant pursuant to this chapter.
7. "General plan" means the Berkeley General Plan.
8. "Person" means an individual, group, partnership, firm, association, corporation, trust, governmental agency, governmental official, administrative body, tribunal or any other form of business or legal entity.
9. "Planning Commission" means the Planning Commission of the City.
10. "Project" means the development project that is the subject of a development agreement. (Ord. 6033- NS § 2, 1991)
22.16.030 Applications.
A. Authority for adoption. An applicant for a development project may request that the City review the application as a development agreement application in accordance with the following procedures. The City incorporates by reference the provisions of California Government Code Sections 65864-65869.5. In the event of any conflict between these statutory provisions and this chapter, this chapter shall control.
B. Forms and information. The applicant shall submit an application for a development agreement on a form prescribed by the City Manager. The City Manager shall identify submittal requirements for applications for development agreements. (S)he may require an applicant to submit such additional information and supporting data as (s)he considers necessary to process the application.
C. Fees. The applicant shall pay such fees and charges for the filing and processing of applications for development agreements and the administration of approved development agreements, including annual reviews, in amounts as may be established by resolution of the City Council.
D. Qualified applicant. A qualified applicant shall have a legal or equitable interest in the real property which is the subject of the proposed development agreement. The City Manager shall require an applicant to submit proof of his interest in the real property and of the authority of any agent to act for the applicant.
E. Initial review of application.
1. The City Manager shall review each application to determine whether it is complete. If the application is found to be incomplete, the City Manager shall reject the application and, within forty-five days after submittal of the application, shall inform the applicant of the items necessary to properly complete the application. Applicant may appeal the City Manager’s determination that the application is incomplete to the The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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City Council. Any such appeal must be filed within fifteen days following the mailing of written notice that the application is incomplete.
2. Within forty-five days after determining a development agreement application to be complete, the City Manager shall make a written recommendation to the Planning Commission whether a development agreement is the appropriate form of entitlement for the proposed project, and shall place it on the Planning Commission agenda at the earliest practicable date. The Planning Commission shall make a recommendation to the City Council concerning appropriateness within thirty days after the date of the meeting at which the item first appears on the commission agenda. If the Planning Commission fails to make a recommendation within this time period, then the City Manager’s recommendation shall be placed on the City Council agenda as specified in Section
22.16.030 of this chapter. The following criteria shall be followed in making these recommendations:
a. The project is preliminarily determined to be consistent with the general plan and any applicable specific plan, or applicant has submitted an application for any necessary amendments to the general plan or specific plan; and
b. EITHER: These three criteria are met:
(1) The project site is three acres or more in area.
(2) The project proposes to construct or rehabilitate multiple structures on the site, and the total floor area to be constructed and rehabilitated is at least one hundred thousand square feet. (3) The project envisions a long-term or phased build-out such that, at the time of application, designs of all buildings and improvements cannot be reasonably specified in the manner required of use permit applications.
OR: There are other unique or compelling reasons why the project or the potential benefits to the community would warrant consideration in the form of a development agreement.
3. The City Manager’s recommendation under subsection 22.16.030E, 2 of this chapter shall include an analysis of how the proposed project comports with regulations of the zoning district in which the property lies, including identification of any aspects of the project which would require a variance were the application subject to review and action under the zoning ordinance.
4. The Planning Commission’s recommendation, or, if the Planning Commission does not make a timely recommendation, then the City Manager’s recommendation, under subsection 22.16.030E, 2 of this chapter shall be placed on the City Council agenda at the earliest practicable date as an action item, and the City Council may accept or reject the recommendation after consideration of the criteria enumerated in subsection 22.16.030E, 2 of this chapter.
The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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5. The City Council shall make a determination whether a development agreement is the appropriate form of entitlement for the proposed project within thirty days after the date of the meeting at which the item first appears on the City Council agenda. If the City Council fails to make a determination within this time period, then the Planning Commission’s recommendation, or, if the Planning Commission failed to make a timely recommendation, then the City Manager’s recommendation, under subsection 22.16.030E, 2 of this chapter, shall become the City’s final determination as to whether a development agreement is the appropriate form of entitlement for the proposed project. (Ord. 6033-NS § 3, 1991)
22.16.040 Contents of development agreements.
A. A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability.
B. A development agreement may include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.
C. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant’s responsibility to obtain all required land use approvals.
D. A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project including those conditions and restrictions proposed in any environmental impact report applicable to the project prepared and certified under the California Environmental Quality Act, and the City’s regulations with respect thereto, in order to eliminate or mitigate adverse environmental impacts of the project.
E. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.
F. If the development agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.
G. A development agreement may contain an indemnity clause requiring the applicant to indemnify and hold the City harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.
H. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.
I. A development agreement shall be a contract that is negotiated and voluntarily entered into by City and The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties. (Ord. 6033-NS § 4, 1991)
22.16.050 Consideration of proposed development agreements.
A. Community workshop; public notice. The Planning Commission shall conduct at least one community workshop prior to commencement of the negotiations referenced in subsection 22.16.050B of this chapter. The purpose of the community workshop(s) is to provide members of the Planning Commission, other advisory bodies to the City Council, and members of the public the opportunity to recommend environmental mitigations, community benefits and other provisions of a development agreement to the City Manager for negotiation. Notice of the community workshop(s) shall be mailed fourteen calendar days in advance to members of the City Council, Planning Commission, and other designated advisory bodies. In addition, notice shall be mailed to owners and occupants of all property within five hundred feet of the project site and shall be published in display ads in newspapers of general circulation in the City of Berkeley.
B. Negotiations. The City Manager shall negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council. The City Council may, but need not, appoint a subcommittee of the City Council to participate in the negotiations. The City Council shall appoint a community advisory committee to consult with the City Manager and any subcommittee appointed by the City Council during negotiations. In appointing the members of this committee, the City Council shall give due consideration to obtaining representative views of residents and businesses in affected communities. The City Manager shall not commence negotiations with the applicant as to any specific component or provision of the development agreement until after the Planning Commission has conducted a community workshop pursuant to subsection 22.16.050B of the chapter.
C. Advisory bodies. The Planning Commission shall advise the City Council on development agreements, including the matters specified in subsection 22.16.050F of this chapter. In addition, the City Manager shall designate the following City boards and commissions as advisory bodies to the Planning Commission and the City Council on the following aspects of a proposed development agreement where the project otherwise would be subject to such board or commission’s jurisdiction or review were the applicant required to proceed under the City’s zoning, design review, or landmarks preservation rules: 1. Zoning Adjustments Board - permitted uses and development standards, community benefits and mitigation programs, and future discretionary review for use permits.
2. Design Review Committee - development standards as they relate to existing and planned urban design of the surrounding area, architectural guidelines, site plan and site plan standards.
3. Landmarks Preservation Commission - development standards as they relate to designated landmarks or structures of merit on the subject site or adjacent sites, mitigation programs for loss of designated landmarks, and demolition of non-residential buildings forty years old or older.
D. Availability of draft development agreement. The City Manager shall make a draft of the proposed The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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D. Availability of draft development agreement. The City Manager shall make a draft of the proposed development agreement available for public review at least thirty days prior to the Planning Commission public hearing on the proposed development agreement.
The Zoning Adjustments Board, the Design Review Committee and the Landmarks Preservation Commission, may conduct one or more public hearings or community workshops during the review period for the draft development agreement, consistent with the scope of their roles outlined in subsection 22.16.050C of this chapter and their enabling ordinances.
E. Planning Commission public hearing. Prior to making a recommendation for City Council action on a proposed development agreement, the Planning Commission shall hold a noticed public hearing to consider comments on the development agreement from other advisory bodies and from members of the public. Notice of the public hearing to make a recommendation concerning adoption of a development agreement shall be given as provided in subsection 22.16.050A of this chapter, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement. The Planning Commission public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.
F. Recommendation by Planning Commission. Within thirty days after closing its public hearing, the Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission’s determination and supporting reasoning whether or not the proposed development agreement:
1. Is consistent with the goals, objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan.
2. Is compatible with the uses authorized in, and the zoning district in which the real property is located.
3. Has duly considered City mitigation programs in effect at the time of execution of the agreement.
4. Will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood and to property and improvements in the neighborhood.
5. Complies with the provisions of the California Environmental Quality Act and City’s procedures adopted pursuant thereto.
G. City Council public hearing. The City Council shall hold a noticed public hearing prior to adoption of any development agreement. Notice of the public hearing to consider adoption of a development agreement shall be given as provided in subsection 22.16.050A of this chapter, in addition to any other notice required by law for land use approvals to be considered concurrently with the development agreement. The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.
The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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H. Decision by City Council.
1. After the City Council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the Planning Commission; or in the event the Planning Commission has failed to make a recommendation pursuant to subsection 22.16.050F of this chapter, the City Council shall approve, disapprove or conditionally approve the development agreement. The City Council may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred back to it by the City Council.
2. The City Council shall not approve a proposed development agreement unless it finds that its provisions are consistent with the general plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with proposed general plan or specific plan provisions which are to be adopted concurrently with the approval of the proposed development agreement. A finding of consistency may be made if, considering the general plan and/or specific plan as a whole and balancing competing provisions as appropriate, the City determines that the proposed development agreement does not conflict with the provisions of the general plan and/or specific plan. This finding need not be supported by detailed explanation or factual findings.
Notwithstanding any other provision of law, including Government Code Section 65867.5, this subsection shall not be interpreted to impose upon the City any of the legal requirements applicable to general law cities with respect to general plan or specific plan consistency, including without limitation any prohibition on a finding of general plan consistency in the absence of a complete, legally adequate general plan.
3. A proposed development agreement shall be executed by the applicant before it is placed before the City Council for consideration at a public hearing.
I. Approval of development agreement. The City Council shall have the exclusive authority to approve the development agreement. Approval of a development agreement shall be by ordinance. (Ord. 6106-NS § 4, 1991:
Ord. 6033-NS § 5, 1991)
22.16.060 Recordation.
A. Execution and recordation of development agreement.
1. Within ten days after the ordinance approving the development agreement takes effect, the City Manager shall execute the development agreement on behalf of the City, and the City Clerk shall record the development agreement with the county recorder.
2. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the City terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the City Clerk shall record notice of such action with the Alameda County Recorder. (Ord. 6033-NS § 6, 1991) The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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22.16.070 Annual review.
A. Time for and initiation of review.
1. The City Manager shall review each approved development agreement at least once a year at which time the applicant shall be required to demonstrate compliance with the provisions of the development agreement.
2. The applicant shall initiate the required annual review by submitting a written request at least sixty days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the City Manager to demonstrate compliance with the provisions of the development agreement. The burden of proof by substantial evidence of compliance is upon the applicant.
B. Finding of compliance. If the City Manager, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the City Manager shall issue a finding of compliance, which shall be in recordable form and may be recorded with the county recorder after conclusion of the review.
C. Finding of noncompliance.
1. If the City Manager finds the applicant has not complied with the provisions of the development agreement, the City Manager may issue a finding of noncompliance which may be recorded by the City with the county recorder after it becomes final. The City Manager shall specify in writing to the applicant the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance.
2. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or modification pursuant to subsection 22.16.080B of this chapter.
D. Appeal of determination. Within ten days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the City Manager and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final. (Ord. 6033-NS § 7, 1991)
22.16.080 Amendment or cancellation.
A. Cancellation or modification by mutual consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in subsections 22.16.050E The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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and G of this chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the City Manager.
B. Termination or modification after finding of noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the City Manager may refer the development agreement to the City Council for termination or modification. The City Council shall conduct a public hearing. After the public hearing, the City Council may terminate the development agreement modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.
C. Rights of the parties after cancellation or termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the City. (Ord. 6033-NS § 8, 1991)
22.16.090 Miscellaneous provisions.
A. Effect of development agreement.
1. Unless otherwise specified in the development agreement, the City’s rules, regulations and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those City rules, regulations and official policies in force on the effective date of the development agreement. The applicant shall not be exempt from otherwise applicable City ordinances or regulations pertaining to persons contracting with the City.
2. 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 in the development agreement. A development agreement shall not prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.
3. Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals.
B. Rules affecting development agreement. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.
C. Interpretation. This chapter governs the interpretation of any development agreement approved under this The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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chapter.
D. Enforcement of a development agreement. The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are non-exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.
E. Severability clause. Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter and the development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in the development agreement.
F. Judicial review; time limitation.
1. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure; and judicial review of any City action taken by the City pursuant to this chapter, other than initial approval of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.
2. 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 ninety days after the effective date of the decision.
G. Notice requirements. The notice requirements contained in subsections 22.16.050A, E and G of this chapter are directory and not mandatory. The failure of any person to receive notice required by law or this chapter does not affect the authority of the City to enter into a development agreement.
H. Irregularity in proceedings. No action, inaction, or recommendation regarding a 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 the petition, application, notice, finding, record, hearing, report, recommendation, or any matter of procedure whatever, unless the error complained 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 not a presumption that an error is prejudicial or that injury was done if an error is shown. (Ord. 6033-NS § 9, 1991) The Berkeley Municipal Code is current through Ordinance 7623-NS, passed July 31, 2018.
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Planning and Development Department
Land Use Planning Division
STAFF REPORT
September 4, 2024
TO: Members of the Planning Commission
FROM: Uttara Ramakrishnan, Planning and Development Department SUBJECT: Amendments to BMC Chapter 22.16 Developm
ent Agreement Procedures
RECOMMENDATION
Conduct a public hearing, discuss the proposed resolution (Attachment 1) which includes amendments to Berkeley Municipal Code (BMC) Chapter 22.16 “Development Agreement Procedures,” and provide a recommendation to the City Council.
CURRENT SITUATION AND ITS EFFECTS
Thirty-five years ago, the City of Berkeley negotiated a long-term Development Agreement (DA) with Bayer Pharmaceuticals for their West Berkeley campus, setting a precedent for public/private partnerships. BMC Chapter 22.16 “Development Agreement Procedures” was adopted shortly thereafter, in 1991 to put in place a process for future projects. The Development Agreement ordinance has not been used as part of a project. This is due in part to the complexity of the ordinance as well as the fact that local requirements that extend beyond the procedures of State law. The additional procedural steps mandated by the City’s current ordinance have limited the use of the Development Agreement procedures as a standard planning tool that is used for complex development projects.
BACKGROUND
These amendments address two City Council referrals. The first referral from September 20, 2011 was authored by then-Mayor Tom Bates (Attachment 2). The second referral, from October 30, 2018, was authored by Mayor Jesse Arreguin and Councilmembers Sophie Hahn, Lori Droste, and Kate Harrison (Attachment 3). Both referrals directed staff to update and streamline the DA procedures consistent with State law.
Item 10 - Staff Report - Development Agreement Final 2024-08-28 Planning Commission
September 9, 2024
ATTACHMENT 3
DISCUSSION
Development Agreements (DA) are negotiated contracts between a public agency and project sponsor that govern land uses within a specific area. A DA establishes site- specific standards for a project that must also be consistent with local land use policies and may freeze existing zoning to provide assurance that the project will not be blocked by future regulatory changes.
A DA can reduce the risk a project sponsor faces by vesting certain rights and can benefit a city by funding improvements that would not otherwise be required under zoning. Other benefits, such as off-site improvements, community benefits, or project components, can also be negotiated. The process is elective and both parties must agree to enter into the negotiating process.
The development agreement statute, codified in Government Code Sections 65864- 65869.5, was adopted in 1979 to provide developers with early certainty about the requirements that would apply to their projects. In exchange for providing large-scale infrastructure, DAs help developers obtain vested rights, thereby reducing their risk and increasing confidence among investors and creditors. DAs are often accompanied by specific plans that establish unique development and zoning standards for the project.
In thr
ee key respects, BMC 22.16 imposes additional requirements compared to those imposed by state law:
1. BMC Chapter 22.16 requires that the City Manager request that the Planning Commission and the City Council approve that a DA is a proper entitlement type for a proposed project during the “initial review of application.”
2. BMC Chapter 22.16 requires community workshops and public notifications before negotiations even begin.
3. BMC Chapter 22.16 requires meetings before the Zoning Adjustments Board, Design Review Committee, and the Landmarks Preservation Commission when a DA is considered, whereas state law requires only public hearings before the Planning Commission and the City Council.
The pro
posed ordinance amendments would streamline the Development Agreement procedures by revising these three items:
1. The proposed ordinance amendments would remove the requirement that the City Manager obtain approval from the Planning Commission and City Council to determine whether a DA is an appropriate entitlement. The Planning Commission and City Council would retain authority to review and approve DAs.
2. The proposed ordinance amendments would remove the requirement that the Planning Commission hold at least one preliminary community workshop prior to the commencement of DA negotiations. The Planning Commission and City Item 10 - Staff Report - Development Agreement Final 2024-08-28 Planning Commission
September 9, 2024
ATTACHMENT 3
Council would still hold public hearings for the review and approval of the DA, and applicants would be encouraged to perform community outreach.
3. The proposed ordinance amendments would remove the requirement that the Planning Commission consult with the Zoning Adjustments Board, Design Review Committee, and Landmarks Preservation Commission before acting on a DA. The Planning Commission would still be permitted to seek recommendation from the Commissions on policies or programs pertaining to each Commission’s scope of expertise.
The revised DA provisions are consistent with state law and will provide another planning tool
that can be utilized by the City and project sponsors.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPAC TS
The project is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines, which provides that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
NEXT STEPS
Hold a public hearing, and provide a recommendation to the City Council on the proposed resolution and zoning ordinance amendments (Attachment 1).
CONTACT PERSON
Uttara Ramakrishnan, Associate Planner, Planning and Development Department, 510- 981-7483
Attachments:
1. Planning Commission Resolution 2024-01 with Exhibit A: Draft Ordinance Amending BMC Chapter 22.16 Development Agreement Procedures
2. September 20, 2011 City Manager Referral: Revisions to the Development Agreement Procedures
3. October 30, 2018 City Manager and Planning Commission Referral: Update BMC Chapter 22.16 Development Agreement Procedure
Item 10 - Staff Report - Development Agreement Final 2024-08-28 Planning Commission
September 9, 2024
ATTACHMENT 3
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