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HomeMy WebLinkAboutBIL 593 Draft 03 1988-1992 INFORMATION ONLY II/ 111i { COUNTY OF HAWAII STATE OF HAWAII BILL NO. 593 (Draft 3 ) ORDINANCE NO. AN ORDINANCE AMENDING THE HAWAII COUNTY CODE BY INCLUDING A NEW CHAPTER RELATING TO DEVELOPMENT AGREEMENTS BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII : SECTION 1. Findings and purpose. The county council of the County of Hawaii affirms the findings and purpose of Act 48 of the 1985 Hawaii State Legislature amending Chapter 46, Hawaii Revised Statutes, by adding a new [part]chapter relating to development agreements . The county council finds that with land use laws and court decisions taking on refinements that make the development of land complex, time consuming, and requiring advance financial commitments, the development approval process involves the expenditure of considerable sums of money. Generally speaking, the larger the project contemplated, the greater the expenses and the more time involved in complying with the conditions precedent to filing for a building permit . The lack of certainty in the development approval process can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning . Predictability would encourage maximum efficient utilization of resources at the least economic cost to the public. ae 111 IIP Public benefits derived from development agreements may include, but are not limited to, affordable housing, design standards , financing of development related services , and on-site and off-site infrastructure and other improvements . Such benefits may be negotiated for in return for the vesting of development rights for a specific period. Under appropriate circumstances, development agreements could strengthen the public planning process [which often appears to compromise the public interest when financial constraints on landowners force government to issue conditional permits] , encourage private and public participation in the comprehensive planning process, reduce the economic cost of development, allow for the orderly planning of public facilities and services and the allocation of cost. As an administrative act, development agreements will provide assurances to the applicant for a particular development project, that upon approval of the project, the applicant may proceed with the project in accordance with all applicable statutes, ordinances, resolutions, rules, and [the ]policies in [existence] effect at the time the development agreement is executed and that the project will not be restricted or prohibited by the county' s subsequent enactment or adoption of laws, ordinances , resolutions, rules or policies . -2- Development agreements will encourage the vesting of property rights by protecting such rights from the effect of subsequently enacted county. legislation which may conflict with any term or provision of the development agreement or in any way hinder, restrict, or prevent the development of the project . Development agreements are intended to provide . a reasonable certainty as to the lawful requirements that must be met in protecting vested property rights, while maintaining the authority and duty of government to enact and enforce laws which promote the safety, health, and general welfare of the citizens of [ our] the County [and State]of Hawaii . The purpose. of this ordinance is to provide a means bywhich aperson maybe assured at a specific point in time that having met or having agreed to meet all of the terms and conditions of the development agreement, the person' s rights to develop a property in a certain manner shall be vested. [ Development agreements will also provide a method by which the County and affected landowners may be able to obtain development related contributions toward infrastructure development and financing of on-site and off-site development related improvements and government services . Existing court decisions throughout the country create an undercurrent of uncertainty over the scope and extent of government ability to demand on-site and off-site development related contributions . -3- 1c 4 , s • and the adequacy or inadequacy of the County' s ordinances, charter or state enabling statutes to support such demands . Development agreements will provide a basis by which, in consideration for the vesting of rights and certainty provided to the affected landowner and the benefits afforded to the public, development related demands can be obtained and enforced by the County. ] SECTION 2. The Hawaii County Code is. hereby amended by adding the following chapter: "Chapter Development Agreements Article 1 Section -1. Title. This chapter may be cited as the Development Agreement Code. Section -2. Purpose. The purpose of this chapter is to authorize the executive branch of the County of Hawaii to enter into a development agreement with any person having a legal or equitable interest in realproperty, for the development of such property in accordance with Hawaii Revised Statutes, section 46-121 through and including section 46-132 and to provide assurances to the parties to the development agreement of the following: (a) That the developer for that particular project may proceed in accordance with all applicable statutes, ordinances, rules, resolutions or policies in effect at the effective date of the development agreement; -4- µ . 11/ (b) That the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive statutes, ordinances, rules, resolutions or policies; (c) That the County of Hawaii may contract with the developer to ensure commitments for on-site and off-site development requirements necessary to preserve the public health, safety and welfare; and (d) That the project will be prosecuted and completed in a timely manner and that the public. interest will be protected. Section -3. Definitions. Whenever used in this chapter, the following words and phrases shall be defined as follows : (1) 'County' means the County of Hawaii, a municipal corporation, acting through its mayor . (2) 'Designated Agency' means the county executive agency designated by the [county council]mayor to administer development agreements after such agreements become effective. (3) 'Development agreement' means a written agreement for specified periods of time between the county, any governmental entity or agency made a party thereto, and any person having a legal or equitable interest in real property for the purpose of vesting the right to develop such property in 1 accordance with laws, ordinances , resolutions, rules, and d policies of any governmental entity or agency made party to the agreement in effect at the time such agreement is executed, and -5- li for the purpose of delineating [additional ]development requirements that may include, but are not limited to,. affordable housing, design standards, water allocations, dedications of real or personal property, on-site and off-site infrastructure and other development related improvements and government services which shall be approved by resolution of the county council and executed by the mayor on behalf of the county. [ (4) 'Economic Feasibility'. is the degree to which the 1 market demand for the proposed project by the principal is accurately estimated and appears to be substantial enough to indicate a probability of sufficiently profitable endeavor to justify the development agreement. ] ( [5]4) 'Governmental entity. or agency' means and includes, without limitation, the County of Hawaii and its County Council, the State of Hawaii , the United States of America and their officers, agencies, boards and commissions . ( [6] 5) 'Person' means an individual, group, partnership, firm, association, corporation, trust, governmental official , administrative body, tribunal or any form of business or legal entity. ( [7] 6) 'Principal' means any person and its successors in interest or assigns who has entered into a development agreement pursuant to this chapter, and who has a legal or equitable interest in the real property which_ is the subject of the development agreement . -6- Section -4. General Authorization. [ (a) ] The mayor may enter into development agreements on behalf of the county, upon approval by the county council by resolution, in accordance with the terms, conditions, and requirements of this chapter, pursuant to section 46-123 of the Hawaii Revised Statutes . Negotiation of and participation in a development agreement shall be entirely voluntary on the county_ and the principal . [ (b) Pursuant to Section 46-131, Hawaii Revised Statutes, each development agreement shall be deemed an administrative act of any and all governmental entities made party to the agreement. (c) The mayor shall make such arrangements with appropriate agencies of the county as may be necessary or proper to implement the requirements of this chapter relating to development agreements including: (1) Prescribing the form of an application, and supporting documentation, for a development agreement . (2.) Determining the kind of information , including public input which is necessary for the review and preparation of a development agreement . (3) Negotiating, drafting, administering and enforcing the terms of a development agreement. Section -5. Qualification as a Principal. Only a principal as defined in this chapter, may file an application to enter into a development agreement . -7 - 111 11/ The principal shall demonstrate the financial ability to develop the project which is the subject of the development agreement. In this regard, the principal shall be required as part of the application to execute and submit under penalty of perjury such certified forms and statements as required by the county, reflecting the principal ' s financial ability to complete the project. Section -6. Filing Requirements. (a) An application for a development agreement shall as a minimum include the following: (1) Description of the property, including the Tax Map Key and land area, along with maps identifying the subject area . (2) Written description of the proposed development and a statement of objectives and reasons for the request . (3) A commencement and termination date. (4) Any other information which may. provide a further understanding of the proposed development and which would expedite consideration of the proposed development agreements . ] Section - 5. Negotiating Development Agreements. (a) The office of the mayor is authorized to negotiate, prepare, and administer a development agreement, in accordance with this chapter, with any principal . The office of the mayor shall submit proposed development agreements to the county -8- 11, council for its action to : approve as submitted; modify, and approve as modified; or reject . (b) The office of the mayor shall make such rules and regulations as necessary to implement this chapter . A proposed development agreement may be negotiated at the request of a principal or the county by submitting an application to the office of the mayor. (c) The application for the development agreement shall as a minimum contain: (1) The name and business address of the principal; (2) A description of the subject land; (3) Specification by written narrative including maps, site plans, and any other documents or materials as may be appropriate, of the proposed uses of the property; ( [5]4) Information concerning the location of any trails, easements or other ways on the subject property, public or private, the rights, if any, of adjoining or other landowners in and to the subject property, historical sites, burial sites, and the impact of the proposed project on the subject real, property, surrounding community and public resources [ . ] ( [6] 5) Information which, at the request of interested government agencies [ or individuals] , may be necessary for the proper review and evaluation of the application and the prearation of any development a reement [. . ]1 and (6) Proposed terms of the development agreement . -9- ( [b]d) Copies of the development agreement application shall be sent to all governmental agencies having jurisdiction over the proposed development[ and to such other persons who may request receipt of any application] for review and comment . e The final draft of everyagreement development p t agree ent shall be presented to the county council for approval or modification and approval by resolution as a pre-requisite prior to execution of a development agreement by the mayor . . Section -6. Periodic Review; Termination of Agreement. (a) If, as a result of a periodic review, the_ office of the mayor finds and determines that the principal has committed. a material breach of the terms or conditions of the agreement, the office of the mayor shall serve notice in writing, within thirty days after the periodic review, upon the principal setting forth with reasonable particularity the nature of the breach and evidence supporting the finding and determination, and providing the pr4.ncipal a reasonable time period in which to cure such material breach. . (b) If the principal fails to cure the material breach within the time period given, then the county unilaterally may terminate or modify the agreement; provided that the office of the mayor has first given the principal the opportunity, (1) to rebut the finding and determination; or (2) to consent to amend the agreement to meet the concerns fo the office of the mayor with respect to the finding and determination. -10- 11/ 11/ Section -7. [Contents of ]Development Agreement Provisions. (a) A development agreement shall, as a minimum: (1) Describe the land subject to the development agreement; (2) Specify the permitted uses of the property, the density or intensity of use, and the maximum height and size of proposed buildings; (3) Provide, where appropriate, for reservation or dedication of land for public purposes as may be required or permitted pursuant tolaws, ordinances, resolutions, [or] rule s or policies in effect at the effective date of the development agreement; and . II' (4) Provide a termination date; provided that the parties shall not be precluded from extending the termination. date by mutual agreement or from entering subsequent development agreements; . [ (5) Provide an indemnity or insurance clause requiring the developer to indemnify the county against claims arising out of the development process, provided that such a provision does not violate.. applicable law or constitute a joint venture, partnership or other participation in the business affairs of the developer by the county; (6) Provide for a security bond or other assurance of performance of the obligations of the principal; -11- (7) Describe with specificity the rights, duties and obligations of the principal . ] (b) The development agreement may provide[ for the following : (1) A] commencement dates and completion dates; provided that such dates as may be set forth in the agreement any be extended at the discretion of the county at the request of the principal upon good cause shown, provided that the parties shall not be precluded from . extendinct such dates by mutual agreement or from entering subsequent agreements. In the event a party to the development agreement requests an extension of a specified duration due to a delay caused by severe weather, acts of God, or other force beyond the control of the party requesting the extension, an extension to the commencement, termination, or completion dates shall be granted by the other parties to the agreement . [ (2) The inclus'.on of any requirements or conditions imposed by other land use and permit approvals; (3) The principal may be required to obtain a bond, irrevocable standing letter of credit or other assurance acceptable to .the county to insure compliance with the development agreement; (4) A description of specific provisions which compliance is required by any governmental entity or agency having review, supervision, approval, and authority stating the -12 - 6' governmental entity or agency' s governing statutes, implementing rules or other published and enforceable statements of policies and procedures; (5) A statement of specific measures for the enforcement of the terms and conditions of the development agreement . ] ( [6]c) The development agreement also may cover any other matter not inconsistent with this chapter, nor prohibited[allowed] by law. (d) In addition to the county and principal, any federal state, or local government agency or body may be included as a party to the development agreement . If more than one government body is made party to any agreement, the agreement shall specify y which agency shall be responsible for the overall administration of the agreement . (e) The development agreement shall provide that the office of the mayor shall conduct a review of compliance with the terms and conditions of the development agreement on an annual basis . [ Section -8. Other Parties to the Development Agreement. In addition to the county and principal, any governmental entity or agency, and any person, as defined herein, may be included as a party to the development agreement. In cases of multi-agency participation the county, through the office of the mayor, shall be responsible for the overall administration of the agreement. -13 _ 111 111 Section -9. Public Hearing and Approval Process. The principal and the county shall prepare a draft development agreement for submittal to the planning commission. The planning commission shall review and hold one (1) public hearing on the draft development agreement within sixty -(60) days. of its receipt, and shall forward its recommendations on the draft development agreement to the county council for action within sixty (60) days of the close of the commission' s first public hearing thereon. Thirty (30) days upon receipt of the planning commission recommendation, the county council shall conduct one (1) public hearing on the proposed development agreement prior to taking action. A development agreement shall be approved only by resolution by a majority of the county council ' s entire membership. After approval by the county council, the mayor, on behalf of the county, may execute the development agreement within ten (10) days after its receipt, provided that the county council resolution approving the terms of the agreement shall. be attached to the development agreement as an exhibit . The county council may refuse to act upon the resolution until the county council determines that the principal has the ability to complete the project based on its economic feasibility which is the subject of the development agreement .] Section -8. Public Hearing . No development agreement shall be entered into unless the county council shall have held a public hearing onthe proposed development agreement . -14- - Section -[10] 9 . [Compliance with ]County General Plan and Development Plans. No development agreement shall be entered into unless the county council finds that the provisions of the proposed development agreement are consistent with [and implement ] the county' s general plan and any applicable development plans [enacted] effective as of the effective date of the 9 development agreement . [The specific findings of the county P council shall be set forth on the public record]Nothing in this chapter shall be construed to prohibit concurrent processing of a development agreement and any other land use approval or amendment to governmental land use designation, district , or zoning . [ Section -11. Periodic Review. The principal shall submit an annual report of the principal ' s compliance with the terms of the development agreement to the designated agency and the county council . The designated agency shall review the report and submit comments on the report to the principal, the planning commission, the mayor and the county council, and any other parties to the development agreement . The designated agency, the mayor or county council may for good cause initiate a compliance review, and the designated agency shall conduct said compliance review. Section -12. Finding of Compliance. If the county, acting via the office of the mayor, during the annual review finds compliance by the principal with the terms of the development agreement, it shall issue a certificate of -15- l c 11/ e , . compliance, which shall be in recordable form and may be recorded by the principal in the bureau of. conveyances . Section -13 . Finding of Non-compliance. If the county, acting via the office of the mayor, finds the principal has committed a material breech of the terms or conditions of the development agreement, the county shall specify inwriting to the principal the terms of the development agreement with which the principal has not complied, as well as the evidence supporting the finding of non-compliance. The county, acting via the office of the mayor, shall also specify a reasonable time and deadline for the principal to cure the principal ' s default . If the default is not cured within the prescribed limits, the development agreement shall be subject to cancellation. Section -14. Cancellation by the County. (a) If at any time during the term of a development agreement, the county, acting via the office of the mayor, finds that the principal has not complied with the terms and conditions of the development agreement, and such default has not been cured, the county may terminate the development agreement in accordance with the provisions of Section 46-125, Hawaii Revised Statutes and any applicable provisions of the agreement . (b) Before the county may terminate a development agreement, the county council shall conduct a public hearing at which the principal and any other interested personshall be -16- } ti entitled to submit such evidence and testimony on the issue of the principal ' s compliance with the terms of the development agreement. The. county council may recommend termination or recommend that development agreement be continued upon such terms and conditions which the county council considers necessary to protect the interests of. the .county. .The county council shall transmit its recommendations to the mayor within thirty (30) days after the close of the county council ' s public hearings . The county, acting via the office of the mayor, shall consider but need not follow the county council ' s recommendations . If the county does not follow the county council ' s recommendations, the county shall state the reason therefor. ] Section -[15] 10. Amendment or, Cancellation. A development agreement may be amended or cancelled, in whole or in part, by mutual consent of the parties to the agreement, or their successors in interest; provided that [notices of proposed. amendments shall be submitted tolif the county determines that the proposed amendment would substantially alter the original development agreement, a public hearing on the amendment shall . be held bythe county council before it consents totheproposed amendment. Minor amendments, which `shall require the approval of the office -of- the mayor in lieu of county council approval, may be defined in any development agreement. [. Prior to the amendment or cancellation of any development agreement, a public hearing on all amendments or cancellations shall be held by the -17- planning commission and ,then by the county council in the same manner as prescribed for approval of the agreement. The county council shall approve any amendments or cancellations of an agreement by resolution of the majority of the county council ' s entire membership. Section -16 . Rights of the Parties After Cancellation or Termination. Upon cancellation or termination of a development agreement, all rights, obligations and duties of the parties arising outof the development agreement shall terminate. The county and county council shall thereafter be free to rezone or otherwise act with respect to the property . formerly subject to the development agreement . ] Section -[17] 11. Enforceability; Applicability. (a) Unless [cancelled or ] terminated pursuant to Section -6 . , or cancelled pursuant to Section -10, a[ny] development agreement, amended development agreement, or modified development agreement, [and amendments or modifications thereto ]once entered into, shall be enforceable by any party thereto, [and ]or their[ heirs, ] successors in interest or assigns, notwithstanding any subsequent change in any applicable law adopted by the County of Hawaii, which alters or amends the laws , ordinances, resolutions, rules , or policies specified in this part . . (b) All laws, ordinances, resolutions, rules, and policiesgoverning permitted overnin uses of the land that is the subject of the development agreement, including but not limited -18- to uses, density, design, height, size, and building buildings , specification of proposed construction standards and specifications, affordable housing, community benefit assessments, water utilization and impact fee/assessment requirements applicable to the development of the property subject to a development agreement, shall be those laws, ordinances, resolutions, rules, regulations, and policies made applicable and in force at the time of execution of the agreement, notwithstanding any subsequent change in any applicable law adopted by the county or any other governmental entity or agency entering into such agreement, which alter or amend the laws, ordinances, [or ] resolutions, rules, or policies specified in this part and such subsequent change shall be void as applied to property subject to any such agreement. to the extent that it changes any law, ordinance, [ or] resolution, . rule, or policy which any party to the agreement has agreed to maintain in force as written at the time of execution; provided that a development agreement shall not prevent a government body fromrequiring the principal from complying with laws, ordinances , resolution, rules, or policies of general applicabilityenacted subsequent to the date of the development agreement if they could have been lawfully applied to the property which is the subject of the development agreement at the time of execution of the agreement if the county, county council or any other governmental entity or agency entering into such agreement finds it necessary to impose the requirements -19- r because a failure to do so would place the residents of the affected community in a .condition perilous to the residents ' health or safety. Section -[18] 12. Administrative Act. Pursuant to Section 46-131, Hawaii Revised Statutes, [E]each development agreement shall be deemed an administrative act of the government body made party to the agreement . Section -[19] 13 . Filing or Recordation. The principal shall file or record a copy of the development agreement or any amendment thereto in the office of the assistant registrar of the land court of the State of Hawaii or in the bureau of conveyances, or both, whichever is appropriate, within twenty (20) days after the effective date of the development agreement or any amendment thereto, and shall provide a recorded copy thereof to the county and county council . The burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.`' [ SECTION 3 . Administrative Rules. The designated agency, as defined in Section -3 above, shall prepare and adopt administrative rules and regulations necessary for the implementation of this ordinance. ] SECTION [4]3. Severability. In event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other portions of this ordinance. -20- F 4 S, 4IP SECTION [514 . Effective Date This ordinance shall take effect upon its approval . INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: Date of 1st Reading : Date of 2nd Reading : Effective Date: APPROVED AS TO FORM AND LEGALITY: CORPORATION COUNSEL DATED: -21-