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CITY COUNCIL AGENDA ITEM NO. 25

Meeting Date: June 12, 2001 

Subject/Title: Authorize the Mayor to Execute Settlement and Development Agreement 
Between Blackhawk/Nunn and the City 

Submitted by: Dennis Beougher, City Attorney 

Approved by: Jon Elam, City Manager



RECOMMENDATION 
Approval of the attached Settlement and Development Agreement Between the City of Brentwood and Blackhawk/Nunn ("Development Agreement") concerning four sites, consisting of property commonly known as the Summerset, Bacchini/Borello, CBN site, and Cox/Blackhawk-Nunn property. Vesting Tentative Map No. 7939 and No. 7940, and the Bacchini/Borello parcels collectively form the Summerset at Brentwood Country Club Project. The other two sites are vacant at this time. 

BACKGROUND 
The developer, Blackhawk/Nunn, applied for an exception to certain fees in January, 1998 for its Summerset project. Among other issues with the fees, the developer contended that the City's fees as applied to an active adult project, were unlawful because the fees were not roughly proportional to the development's impacts. In accordance with a letter agreement, the City adopted a new fee category for Active Adult Senior Housing units on May 26, 1998. 

The City commissioned, at the developer's expense, a traffic study to determine the appropriate trips generated in the evening peak hour as compared to the 1.01 trips generated by a single-family home that is not age restricted. The study determined that the trips generated by an age-restricted unit were .44 percent of a single family home. The developer contended that it was entitled to a refund of a portion of the East Contra Costa County Route Four Fee Authority ("ECCRFFA"). City contended that the developer was operating a golf course, as part of the Summerset Project, but had not paid impact fees for the golf course. 

Litigation ensued. After various negotiation sessions between the City and the developer, the major provisions of a Development Agreement were approved in concept by the City Council last year. 

At its June 5, 2001 meeting, the Planning Commission recommended approval of the Development Agreement.

DEVELOPMENT AGREEMENT 
After several court decisions found that a developer does not have a right to development until it is "vested", development agreement legislation was enacted to strengthen the planning process, to encourage private participation in the planning process, and to reduce the economic risk of development. A development agreement establishes the principles, standards, and procedures that will aid the developer in orderly construction of public improvements consistent with the City's General Plan and provide appropriate funding of public improvements. City staff recommends the approval of the attached Development Agreement as it will benefit the parties to the agreement, provide certain assurances to the developer, and end the litigation among the parties. 

Pursuant to this legislation, the City adopted Chapter 17.810 that outlines the process, rules, and regulations for consideration, approval, and execution of a development agreement. 

An application for a development agreement cannot be deemed complete until a draft development agreement has been approved by the city attorney. The City Attorney has reviewed and approved the attached Development Agreement. In addition the development agreement must contain the following four items:

A. duration of the development agreement. (In this case, ten years from the effective date of the agreement. See Agreement, Section 1.2);
B. the permitted uses of the property. (Two of the sites have the Summerset Project. The other two sites must be consistent with the General Plan and zoning for the sites, currently zoned for single family residential, and a mix of high density residential and PEC uses.)
C. the density or intensity of use, the maximum and height and size of the proposed buildings. (The density, intensity, maximum height and size of the buildings have been established for the three Summerset sites. The current General Plan and zoning apply to the other site.)
D. provisions for the reservation or dedication of land for public purposes.
(The provision for dedication of land for public purposes has been established for the Summerset sites by subdivision maps and a parcel map with appropriate dedications has been approved for the Cox/Blackhawk-Nunn site.) 

OTHER MAJOR PROVISIONS OF THE DEVELOPMENT AGREEMENT

Fees:

1) The City agrees to reimburse the developer for Concord Avenue and Walnut Avenue together with other reimbursements to which the developer is entitled. 
2) The City agrees that the developer shall pay 43.56% of the fee that is charged for single family residences in Brentwood at the time the building permit is issued for the Bacchini/Borello and CBN sites. 
3) It locks the development fees as adopted in February 10,1998 agreement plus any annual increase as set forth in Engineering News Record for the VTM 7939 and 7940, until July 1, 2004. 

Development:

1) City grants a vested right to develop pursuant to VTM 7939 and VTM 7940 (Summerset). This means that a growth management, moratorium, new exactions, new taxes, or new fees will not effect the development of these sites.

2) City grants a vested right to develop VTM 8089 (Bacchini/Borello or Pulte Homes site). It locks the fees in effect at the time a building permit is issued, but shall apply the ordinances, regulations, standards and specifications in effect on August 15, 2000.. No growth management or moratorium shall effect the development of this site.
3) City grants a vested right to develop the CBN site as the General Plan and zoning in effect on February 6, 2001. Developer will be required to pay fees in effect when a building permit is issued and shall use the ordinances, regulations, plans and specifications , standards and official policies in effect on February 6, 2001.

PUBLIC HEARING

The legislation permitting development agreements requires that a public hearing be held. B.M.C. Chapter 17.810 states that following a determination that an application is complete, including an initial study, the application shall be reviewed by the planning commission and city council which both bodies shall hold a public hearing. 

The Planning Commission must find that the agreement conforms to the findings set forth in Section 17.810.008 which provides as follows:

A. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the City General Plan and any applicable specific plans as it provides for both the creation of new jobs, affordable housing and senior housing in an attempt to attain a 1:1 housing to jobs ratio. 
B. The development agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the city as a whole, as it simply carries out the land use and zoning designations previously approved for these sites. 
C. The development agreement will not adversely affect the orderly development of property or the preservation of property values as it is the intention of the development agreement to implement either previously approved projects and/or the existing land use and zoning designations for the properties. 
D. As there is no applicable specific plan to the subject sites, the finding concerning facilitation of the implementation of a specific plan is not applicable in this case; 
E. The development agreement is consistent with the provisions of Government Code Section 65864 through 65869.5. (Attached hereto for your convenience.)


The Planning Commission made these finding as per the attached Planning Commission resolution.

ENVIRONMENTAL DETERMINATION
The three Summerset sites have developed under Environmental Impact Reports previously certified by the Brentwood City Council during the annexation, and prezoning of the sites. Additional environmental analysis will be undertaken on the remaining vacant site at the time specific development plans are proposed for the property. This development agreement is consistent with the previously certified EIRís. 

SUMMARY
Staff recommends the approval of the attached Development Agreement based upon its complies with B.M.C. Chapter 17.810 requirements, promotion of orderly development of these sites, implementation of the General Plan, and termination of the existing litigation between the parties.

ACTIONS:
1) Open the public hearing; 
2) Close the public hearing after hearing any comments concerning this item; and
3) Approve the Development Agreement. 


Attachments:
Ordinance No. 



ORDINANCE NO. 


AN ORDINANCE OF THE CITY OF BRENTWOOD APPROVING THE SETTLEMENT AND DEVELOPMENT AGREEMENT BETWEEN BLACKHAWK/NUNN AND THE CITY OF BRENTWOOD CONCERNING THE PROPERTY COMMONLY KNOWN AS SUMMERSET, BACCHINI/BORELLO, CBN, AND COX/BLACKHAWK/NUNN SITES. 



WHEREAS, Blackhawk/Nunn applied in January, 1998 for an exception to certain fees for its Summerset Project by contending that the City's fees, as applied to an active adult project, were unlawful because the City's fees were not roughly proportional to the impacts created by the project;

WHEREAS, City commissioned a traffic study to determine the appropriate trips generated in the evening peak hour compared to the trips generated by a single family home that is not age-restricted; the study was adopted by the City on July 27, 1999 and found that an active adult home to generate only 43.56% of the p.m. peak trips that a single family home which is not age-restricted would generate; 

WHEREAS, City contended that the developer, Blackhawk/Nunn, did not pay impact fees for the golf course portion of its Summerset project;

WHEREAS, the developer sought a refund of its East Contra Costa Regional Fee and Financing Authority ("ECCRFFA") fees; 

WHEREAS, the develop and others filed a suit against the City seeking a refund and damages for breach of a letter agreement, Beinke, et al. v. All Persons, City of Brentwood, et al.

WHEREAS, the City and the plaintiffs in the above-referenced litigation desire to compromise and resolve the foregoing disputes and to promote the orderly development of the subject real property described in the Settlement and Development Agreement between the Blackhawk/Nunn and the City of Brentwood ("Development Agreement");

WHEREAS, developer has commenced development of Vesting Tentative Map No. 7939 and 7940 sites and has vested rights to develop these parcels;

WHEREAS, developer has commenced development of Vesting Tentative Map 8089, the Bacchini/Borello site, and has vested rights to develop this site;

WHEREAS, another site, the Cox/Blackhawk-Nunn site, has a parcel map, Parcel Map No. 354-00, approved for parcelization but remains vacant at this time;

WHEREAS, the City and developer seek to promote the orderly development of these four sites, to outline the applicable law, regulations, ordinances, resolutions, policies, and standards and specifications, permitted uses, and restrictions on moratoria and other limitations on the rate or timing of development, and the life of existing subdivision maps; 

WHEREAS, the City Council has determined that execution of the Development Agreement only vests and implements project approvals already granted, that the Development Agreement will not cause significant new effects or a substantial increase in the severity of previously identified significant effects, that there is no significant new information, and that there is no substantial change in circumstances under which the projects described in the Development Agreement will be undertaken, so that no supplemental or subsequent environmental impact report or analysis is required; and

WHEREAS, the environmental effects of this proposed action have been addressed in previous approved environmental documents and all potentially adverse impacts have been conditioned to render the impact to a level less than significant. 

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby finds and determines as follows:

Section 1. The foregoing recitals and staff report statements are found and determined to be true and correct.

Section.2. The Development Agreement has been processed, considered, approved, and executed in accordance with Brentwood Municipal Code Chapter 17.810.

Section 3. The City Council specifically finds as follows: 

A. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the City General Plan and any applicable specific plans as it provides for both the creation of new jobs, affordable housing and senior housing in an attempt to attain a 1:1 housing to jobs ratio. 
D. The development agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the city as a whole, as it simply carries out the land use and zoning designations previously approved for these sites. 
E. The development agreement will not adversely affect the orderly development of property or the preservation of property values as it is the intention of the development agreement to implement either previously approved projects and/or the existing land use and zoning designations for the properties. 
D. As there is no applicable specific plan to the subject sites, the finding concerning facilitation of the implementation of a specific plan is not applicable in this case; 
E. The development agreement is consistent with the provisions of Government Code Section 65864 through 65869.5. 


Section 4. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

Section 5. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in Ledger Dispatch, the official newspaper of the City of Brentwood, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.

Section 6. Pursuant to Government Code ß65868.5, the City Council authorizes the City Clerk to record a fully executed copy of the Development Agreement, attached hereto as Exhibit a, in the Official Records of the County of Contra Costa, within 10 days after City enters into this Development Agreement.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 12th day of June 2001 by the following vote:

AYES: Councilmembers
NOES: 
ABSENT: 
_________________________
Michael A. McPoland, Sr.
Mayor


ATTEST:


___________________
Karen Diaz, CMC
City Clerk


State of California )
County of Contra Costa ) ss.
City of Brentwood )

I, Karen Diaz, City Clerk of the City of Brentwood, do hereby certify that the foregoing Ordinance had its first reading on June 12, 2001 and had its second reading on June 26, 2001 and was passed by the following vote:

AYES: Councilmembers 
NOES: None
ABSENT: None

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