HomeMy WebLinkAboutCC_2024_12_02_SP AgendaPacket CITY OF ATASCADERO SPECIAL CITY COUNCIL AGENDA
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CITY OF ATASCADERO
CITY COUNCIL
NOTICE OF SPECIAL MEETING
AGENDA
Monday, December 2, 2024
City Hall Council Chambers, Fourth Floor
6500 Palma Avenue, Atascadero, California
SPECIAL SESSION – CALL TO ORDER: 6:00 P.M.
ROLL CALL: Mayor Moreno
Mayor Pro Tem Funk
Council Member Bourbeau
Council Member Dariz
Council Member Newsom
A. PUBLIC HEARINGS:
1. Newton Development Agreement (DEV24-0075)
▪ Fiscal Impact: None
▪ Recommendation: Planning Commission recommends Council:
Introduce for first reading, by title only, Draft Ordinance to approve a
Development Agreement between Scott Newton and the City of Atascadero,
amend Title 9 to establish development agreement overlay zone DA1, and
amend the official zoning map to establish DA1 on the subject property, and
certify the proposed Mitigated Negative Declaration prepared for the properties
located at 11450 Viejo Camino and 11505 El Camino Real. [Community
Development]
2. Ordinance Increasing the Atascadero Tourism Business Improvement
District (ATBID) Assessment from 2% to 2.5%
▪ Fiscal Impact: Should there be insufficient protests from the businesses to be
assessed, and should the ordinance go into effect, additional ATBID revenues
in an estimated amount of $46,500 through June 30, 2025.
▪ Recommendation: Council conduct the first reading of the Draft ATBID
Assessment Increase Ordinance amending Title 3, Chapter 16, section 3-
City Council Special Session: 6:00 P.M.
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16.04, changing the assessment rate under Streets and Highways Code
Section 36541(a) for lodging businesses within the Atascadero Tourism
Business Improvement District from 2% to 2.5% for the remainder of FY 2024-
2025 and setting a public hearing for the second reading of the Ordinance on
December 10, 2024. [Community Services and Promotions]
ADJOURNMENT
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CITY OF ATASCADERO
CITY COUNCIL STAFF REPORT Item A1
Department: Community
Development
Date: 12/02/2024
Placement: Public Hearing
TO: JAMES R. LEWIS, CITY MANAGER
FROM: PHIL DUNSMORE, COMMUNITY DEVELOPMENT DIRECTOR
PREPARED BY: KELLY GLEASON, PLANNING MANAGER
SUBJECT: Newton Development Agreement (DEV24-0075)
RECOMMENDATION:
Planning Commission recommends Council:
Introduce for first reading, by title only, Draft Ordinance to approve a Development Agreement
between Scott Newton and the City of Atascadero, amend Title 9 to establish development
agreement overlay zone DA1, and amend the official zoning map to establish DA1 on the subject
property, and certify the proposed Mitigated Negative Declaration prepared for the properties
located at 11450 Viejo Camino and 11505 El Camino Real.
REPORT-IN-BRIEF:
The owner of the subject properties, Scott Newton, has requested that the City enter into a De-
velopment Agreement to allow for and facilitate future development of the site with up to 42
residential units. A development agreement is a legally binding contract between a property
owner and a local government that outlines the terms and conditions for a development project.
Under Government Code Section 65867, the Planning Commission was required to conduct a
public hearing on development agreements. The Commission reviewed the proposed agreement
on October 15, 2024, and voted to recommend the Council adopt the agreement. The Develop-
ment Agreement will set standards, land uses, and expectations for future site development and
acts outside of the existing zoning code but remains consistent with the General Plan.
DISCUSSION:
BACKGROUND
The property owner previously submitted use permit applications for a mini-storage
development, one in 2018 and one in 2020. Those applications were both denied based on
specific findings. In 2024, the owner and City entered into a settlement agreement stemming
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from an ongoing court case between the owner and the City. In the settlement agreement, the
City agreed to process a Development Agreement that would allow for future development of
the site with a residential housing project of up to 42 units. This agreement allows the owner to
establish uses that would not otherwise be allowed under existing zoning and sets forth City
standards and expectations for future development. The Development Agreement would be valid
for a period of 10-years. After such time, if the site has not been developed, use and development
standards would revert to those of the underlying zoning district.
The draft development agreement was reviewed by the Planning Commission at the October 15,
2024 meeting. The Planning Commission recommends approval of the agreement on a 7-0 vote.
Construction of up to 42 homes on the lot will provide much needed, entry level, market rate
housing for first time homebuyers looking to reside in Atascadero and will create a more
compatible development for the neighborhood.
ANALYSIS
The subject site is comprised of 2 parcels, one is vacant and the other contains an existing single-
family residence. The current General Plan Designation and zoning is Public. The parcels contain
a seasonal drainage that flows during the rainy season. The drainage is a tributary to Paloma
Creek and eventually flows to the Salinas River. In order to create developable areas for the site
the owner plans to realign this drainage and create a more defined creek channel.
The Development Agreement addresses actions and processes related to this creek realignment
as well as other factors related to site development. The key factors are summarized below:
1. Creek Realignment
The existing drainage may be realigned to accommodate a future project. Language in the
Development Agreement allows for this to occur prior to submittal of any development
plan. This will allow the owner or future developer to go through the FEMA process to
shift the floodway and floodplain on-site and create certainty about the area of the site
that can be developed. This process also includes City review for flood control and
Department of Fish and Wildlife, Army Corps of Engineers, and Regional Water Quality
Control Board review for the protection and mitigation related to impacts to any
jurisdictional resources.
The permitting process is designed to ensure that all water currently accommodated on-
site will remain on-site as part of the modifications to the drainage way. This analysis
ensures that no downstream or upstream impacts will occur and that the modified flood
plain limits do not impact adjacent properties not under the ownership of the applicant.
Additional provisions in the agreement also include naturalization of the creek channel
and maintenance of a setback between the realigned top of bank and any structures.
2. Future Site Design
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The Development Agreement allows for future development of up to 42 residential units.
No formal development plan is submitted for approval as part of the development
agreement and the agreement stipulates that all City development standards must be
met by any future development, including all Objective Design Standards. The agreement
also limits development to a maximum of 42 units and the owner has agreed to not
request bonus units through any City or State program. This would also eliminate any
State requirement that the City grant concessions for development standards in
connection with the future housing project.
3. Site Access
The development site has frontage on both Viejo Camino and El Camino Real. Access from
El Camino Real presents challenges in terms of existing road width, traffic management
entering and exiting, and slope from the edge of the roadway. Based on these factors, the
negotiated Development Agreement stipulates that site access be from Viejo Camino only
and requires that the main access driveway align with Bocina Lane to create a safe
intersection. The agreement does allow the City Engineer to approve an alternative access
location off Viejo Camino should a future developer wish to explore other options,
however, Bocina provides the safest alignment and requires the least amount of
modification to road improvements to achieve adequate center turn lanes and sight
distance. Emergency access could be allowed from El Camino Real should a secondary
access be required by the Fire Marshal.
4. Frontage Improvements
The Development Agreement requires full frontage improvements along Viejo Camino,
including lane restriping, bike lane, curb, gutter, and sidewalk. The traffic analysis
prepared for the project also includes off-site improvements needed for pedestrian
connectivity to adjacent commercial uses and the El Camino Real corridor to mitigate
impacts to VMT (Vehicle Miles Traveled) through the support of multi-modal options.
These improvements include a pedestrian path north to the existing sidewalk at the liquor
store frontage and intermittent red curbing to ensure pedestrian safety. Bike lane striping
or shared lane sharrow markings are also required along Viejo Camino where gaps in the
bike facilities exist. As there is no formal project access from El Camino Real, no frontage
improvements are required along this frontage.
5. Applicability of City Codes and Policies
The Development Agreement requires any future project to meet existing City codes and
regulations unless specifically clarified or superseded by the agreement. Of particular
importance are City standards for annexation into the Community Facilities District (CFD)
and consistency with affordable housing policies.
Current City policy requires all residential projects to annex into the existing CFD to offset
costs associated with providing park maintenance and emergency service costs to new
residents. The Development Agreement requires annexation into the CFD prior to permit
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issuance for any residential unit or recordation of any subsequent map, whichever occurs
first.
The City currently has an interim affordable housing policy in place that was adopted in
2003. The policy requires that affordable units be incorporated into new developments
requiring legislative approval. Since 2003, regional studies have shown that higher density
residential developments, by the nature of unit size and communal site amenities, are
accessible to moderate and lower-income residents without recordation of a formal deed
restriction. As this project will meet those density and design parameters, the project is
determined to incorporate affordability by design and will not be required to deed restrict
units.
TRAFFIC
A traffic analysis was completed based on the highest possible intensity of development for the
site assuming build-out with the full 42-unit count. The traffic analysis assumed access from Viejo
Camino consistent with Development Agreement parameters and determined that the
surrounding roads and intersections were built to handle the additional trips with
recommendations incorporated. As previously stated, recommendations include restriping for
center turn lanes, bike and pedestrian facilities along the Viejo Camino frontage, and red curbs
at various locations leading up to the development.
GENERAL PLAN CONSISTENCY
Because a Development Agreement is essentially at the same level as a zoning ordinance, the
proposed development uses and standards do not need to be consistent with existing zoning, but
the ultimate project must be consistent with the General Plan designation for the property. As
such, pursuant to Government Code Section 65867.5, section 1.3 of the Development Agreement
anticipates a future General Plan amendment depending on the nature of the ultimate project
to be built. This allows the Development Agreement to be consistent with the General Plan as
required by Section 65867.5.
It is also important to note that the draft land use plan for the citywide General Plan Update is
contemplating changing these parcels and surrounding parcels from a Public Zone to a Multi-
Family zone. The project contemplated by the Development Agreement will likely be consistent
with anticipated future uses once the General Plan Update is adopted and zoning is implemented
early to mid-next year.
PROPOSED OVERLAY ZONE
To tie the Development Agreement to the property and ensure that future City staff and
developers are aware of the specific property agreement, an overlay zone (DA-1) will be applied
to the property. The zone text states that the site is subject to the provisions of a Development
Agreement.
ENVIRONMENTAL DETERMINATION:
A Mitigated Negative Declaration (MND) No. 2024-0011 was circulated for public review on
October 2, 2024. The MND evaluated maximum development potential outlined in the
Development Agreement and addressed any impacts associated with creek realignment. All
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mitigation measures identified in the document are incorporated into the Development
Agreement as Attachment 1, exhibit “A”.
During the public review period, Salinan tribal members requested monitoring during grading
activities that involve ground disturbance. A mitigation measure has been added to address this
request.
CONCLUSION:
• Approval of this Development Agreement provides a path forward for future
development of the site in a manner that achieves the goals of both the City and the
property owner.
• The Agreement provides certainty as to density and realignment of the creek to ensure
that certain development rights and expectations are retained into the future.
• Provisions are included to ensure that all local, State, and federal regulations are followed
regarding the realignment of the creek and any other applicable site modifications.
FINDINGS:
To approve the Development Agreement and associated actions, the City Council must find that
the provisions of the agreement are consistent with the General Plan and any applicable Specific
Plan. There are no Specific Plans established on or within the immediate vicinity of the subject
development site. The Development Agreement requires that any future project be consistent
with the General Plan Land Use Designation -or that the application include an amendment to
the General Plan Land Use Designation, if applied for prior to the citywide update.
ALTERNATIVES:
1. The City Council may make modifications to the provisions of the Development
Agreement.
2. The City Council may determine that more information is needed on some aspect of the
project and may refer the item back to the applicant and staff to develop the additional
information. The Council should clearly state the type of information that is required. A
motion, and approval of that motion, is required to continue the item to a future date.
3. The City Council may not approve the proposed Development Agreement and continue
with current litigation proceedings.
FISCAL IMPACT:
None
REVIEWED BY OTHERS:
This report and the draft Development Agreement has been reviewed by the City Attorney,
Planning staff, and City Engineer.
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REVIEWED AND APPROVED FOR COUNCIL AGENDA
James R. Lewis, City Manager
ATTACHMENTS:
1. Draft Ordinance with attachments
2. Mitigative Negative Declaration #EDN 2024-0011 (document available electronically at
atascadero.org/environmentaldocs)
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DRAFT ORDINANCE
ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ATASCADERO, CALIFORNIA, ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN SCOTT NEWTON AND THE CITY OF
ATASCADERO, AMENDING TITLE 9 OF THE ATASCADERO
MUNICIPAL CODE TO ESTABLISH DEVELOPMENT AGREEMENT
OVERLAY ZONE DA1, AMEND THE OFFICIAL ZONING MAP TO
ESTABLISH DA1 ON THE SUBJECT PROPERTY, AND CERTIFYING THE
PROPOSED MITIGATED NEGATIVE DECLARATION PREPARED FOR
11450 VIEJO CAMINO AND 11505 EL CAMINO REAL
NEWTON DEVELOPMENT AGREEMENT
(DEV24-0075)
WHEREAS, Scott Newton (“Owner”) is the owner of real property located at 11450 Viejo
Camino (APN 045-342-009) and 11505 El Camino Real (APN 045-342-010) within the City (the
“Property”).
WHEREAS, in 2018, Owner applied for a use permit to permit a self-storage facility on
the Property (“Project 1”) which was denied by City Council on appeal; and
WHEREAS, in 2020, Owner applied for a second use permit to permit a modified self-
storage facility on the Property (“Project 2”) which was denied by City Council on appeal; and
WHEREAS, Owner subsequently filed litigation against the City, alleging various claims
against City over City’s application and hearing process; and
WHEREAS, the City Council agreed to accept and process an application for a
development agreement (“Project”) as part of a settlement agreement with Owner arising out of
the litigation commenced by Owner against the City; and
WHEREAS, the settlement agreement provided that the development agreement would be
processed pursuant to State law and any applicable local requirements; and
WHEREAS, Government Code Section 65865 allows the City to enter into development
agreements with any person having a legal or equitable interest in real property; and
WHEREAS, Government Code Section 65867.5 requires a development agreement be
adopted by ordinance; and
WHEREAS, an Overlay Zone is being processed concurrently to tie the development
Agreement to the subject Property; and
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WHEREAS, a timely and properly noticed Public Hearing upon the subject Draft
Development Agreement and associated entitlements was held by the Planning Commission of the
City of Atascadero at which hearing evidence, oral and documentary, was admitted on behalf of
said application; and
WHEREAS, The Planning Commission held a duly noticed public hearing to consider the
Project on October 15, 2024 and considered testimony and reports from staff and the public.
WHEREAS, after due study and deliberation, the Planning Commission found that the
draft development agreement is consistent with the General Plan, and that it contains those
matters required in a development agreement by State law; and
WHEREAS, the laws and regulations relating to the preparation and public notice of
environmental documents, as set forth in the State and local guidelines for implementation of the
California Environmental Quality Act (CEQA) have been adhered to; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO
HEREBY ORDAINS AS FOLLOWS:
SECTION 1. Recitals: The above recitals are true and correct and incorporated herein as
if set forth in full.
SECTION 2. Public Hearings. The City Council of the City of Atascadero, at a Public
Hearing held on December 2, 2024, considered testimony and reports from staff and the public
and introduced for first reading, by title only, an Ordinance adopting a Development Agreement,
amending Title 9 of the Atascadero Municipal Code and amending the official Zoning Map.
SECTION 3. Facts and Findings. The City Council makes the following findings and
determinations for approval of the proposed actions:
A. Findings for Development Agreement:
1. FINDING: The Development Agreement is consistent with the General Plan
FACT: The Development Agreement requires that any future development be
consistent with the General Plan designation for the property based on proposed use.
The Agreement requires that the applicant/owner process a future General Plan
Amendment prior to property development should the residential use not be consistent
with the General Plan Designation in pace at the time of development application.
B. Findings for Zone Text and Map Amendment:
1. FINDING: The proposed project or use is consistent with the General Plan, and all
other applicable ordinances and policies of the City.
FACT: The proposed amendments are consistent with the General Plan. The project
site is designated Public and the Development Agreement requires any future
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residential project to be consistent with the General Plan Designation at the time of
application.
2. FINDING: The establishment and subsequent operation or conduct of the use will not,
because of the circumstances and conditions applied in the particular case, be
detrimental to the health, safety, or welfare of the general public or persons residing or
working in the neighborhood of the use, or be detrimental or injurious to property or
improvements in the vicinity of the use; and
FACT: The amendment will not change the use or character of the neighborhood and
will not be detrimental to the health, safety, or welfare of the general public or residents
within the project.
3. FINDING: The proposed project or use will not be inconsistent with the character or
the immediate neighborhood or contrary to its orderly development; and
FACT: The proposed amendments are consistent with the character of the
neighborhood.
4. FINDING: The proposed zone change will not create any new significant and
unavoidable impacts to traffic, infrastructure, or public service impacts; and
FACT: The proposed DA#1 overlay zone will allow for future development of the site
with residential units. The corresponding Zoning Map amendment and adoption of a
Development Agreement will result in a residential use that will not generate a
substantial increase in traffic. The proposed future residential project will generate an
insubstantial increase in the volume of traffic.
SECTION 4. CEQA. The City of Atascadero prepared an Initial Study to determine if
the proposed project would have a significant adverse effect on the environment. The Initial
Study found that no impacts of significance were identified. Consequently, a Mitigated Negative
Declaration was prepared for the Project. Adoption of Mitigated Negative Declaration No. EDN
2024-0011 will satisfy the requirements of CEQA for the adoption of the Development
Agreement and Mitigated Negative Declaration No. EDN 2024-0011 is hereby certified and
adopted.
SECTION 5. Approval. The Development Agreement attached hereto as Exhibit “A” is
hereby approved and the City Manager is directed to execute the Agreement on behalf of the City.
The City Manager is further authorized to make such minor amendments to the Development
Agreement as are necessary to carry out the intent of the Development Agreement. Not later than
ten (10) business days after the effective date of this Ordinance, the City Clerk is directed to record
the Development Agreement with the San Luis Obispo County Recorder’s office. The text
amendments to Title 9 of the Atascadero Municipal Code attached hereto as Exhibit “B”, and the
Zoning Map amendment attached hereto as Exhibit “C”, are approved to establish an Overlay Zone
on the Property in substantial conformance with Exhibit A.
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SECTION 6. Interpretation. This Ordinance must be broadly construed in order to achieve
the purposes stated in this Ordinance. It is the City Council’s intent that the provisions of this Ordinance
be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth
in this Ordinance.
SECTION 7. Preservation. Repealing of any provision of the Atascadero Municipal Code
or of any previous Code Sections, does not affect any penalty, forfeiture, or liability incurred before,
or preclude prosecution and imposition of penalties for any violation occurring before this
Ordinance’s effective date. Any such repealed part will remain in full force and effect for sustaining
action or prosecuting violations occurring before the effective date of this Ordinance.
SECTION 8. Effect of Invalidation. If this entire Ordinance or its application is deemed
invalid by a court of competent jurisdiction, any repeal or amendment of the Atascadero
Municipal Code or other City Ordinance by this Ordinance will be rendered void and cause such
previous Atascadero Municipal Code provision or other City Ordinance to remain in full force
and effect for all purposes.
SECTION 9. Severability. If any part of this Ordinance or its application is deemed
invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not
affect the effectiveness of the remaining provisions or applications and, to this end, the provisions
of this Ordinance are severable.
SECTION 10. Notice. The City Clerk is directed to certify the passage and adoption of
this Ordinance, cause it to be entered into the City of Atascadero’s book of original ordinances,
make a note of the passage and adoption in the records of this meeting and within fifteen (15)
days after the passage and adoption of this Ordinance, cause it to be published or posted in
accordance with California law.
SECTION 11. Effective Date. This Ordinance will take effect on the 30th day following
its final passage and adoption.
INTRODUCED at a special meeting of the City Council held on December 2, 2024, and
PASSED, APPROVED and ADOPTED by the City Council of the City of Atascadero, State of
California, on December 10, 2024.
CITY OF ATASCADERO:
_____________________________
Heather Moreno, Mayor
ATTEST:
______________________________
Lara K. Christensen, City Clerk
APPROVED AS TO FORM:
______________________________
Dave Fleishman, City Attorney
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1
NEWTON DEVELOPMENT AGREEMENT
1.0 Recitals
1.1 Legal Authority for a Development Agreement. Pursuant to California
Government Code sections 65864-65869.5 (the “Development Agreement
Statute”) the City of Atascadero (“City”) hereby enters into this Development
Agreement (hereinafter "Agreement") with Scott Newton (“Owner”). The
effective date of this Agreement (“Effective Date”) shall be the 31st day following
the date on which the ordinance approving this Agreement is adopted by City.
1.2 Owner’s Interest. Owner currently holds a legal and/or equitable interest in
certain real property located within the City, consisting of approximately 4.32
acres in two legal parcels, and as more particularly described in Exhibit “A” (the
“Property”). Owner proposes to develop the Property with a maximum of 42
residential units, with a height of no more than 30 feet with an additional four
feet for architectural and enhanced roof design elements, however conflgured,
with associated improvements, drainage and fiood control facilities, and
modiflcation of a drainage channel on the Property to provide fiood control and
habitat enhancement (the “Project;” the Project is shown and described in more
detail in the plans attached as Exhibit “B”). The Project shall meet all applicable
local, state, and federal requirements unless speciflcally detailed in this
Agreement, including Objective Design Standards approved by the City on June
25, 2024.
1.3 Project Approvals. In connection with the Project, Owner submitted an
application on August 20, 2024, which may eventually include a General Plan
Amendment (“GPA”) and a Zoning Change, to accommodate the Project, as well
as a request for processing of this Development Agreement, which Agreement
was approved by the City on December 10, 2024 (“Project Approvals”).
1.4 Scope of Project Approvals. The permitted uses of the Property, the maximum
density and intensity of use, the maximum height, bulk and size of proposed
buildings, provisions for reservation or dedication of land for public purposes
and location and maintenance of on-site and off-site improvements, location of
public utilities, and other terms and conditions of development applicable to the
Property, shall be those set forth in this Agreement, the Project Approvals, any
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2
amendments to this Agreement or the Project Approvals, and Applicable Rules
as deflned herein.
2.0 Benefits
2.1 City. Under the policies, ordinances and regulations in effect at the time Owner
submitted the application for the Project, the City was faced with litigation over the
development of the Property, the suitability of the existing zoning and General Plan
designations, and the development allowed on the Property under the then-existing zoning.
The Project described in this Development Agreement provides needed housing for the
City, fiood control measures, and necessary street improvements to an important City
Gateway parcel.
2.2 Owner. Under the ordinances and regulations in existence at the time the Owner
submitted the application for the Project, Owner’s right to proceed would not fully vest until
recordation of flnal maps and commencement of substantial construction; however, as
noted herein, Owner was unwilling to dismiss the litigation without the City’s processing of
this Agreement. Owner benefltted because such Project Approvals could be immediately
vested, and Owner was willing to dismiss the litigation and provide such other beneflts to
the City as set forth herein.
3.0 Obligations of Parties.
3.1 City. The City agrees that:
3.1.1 Pursuant to this Agreement, Owner has a vested right to develop the Property and
the Project in accordance with the policies, rules and regulations of the City in effect on
December 10, 2024 (“Applicable Rules”). As set forth herein, “Applicable Rules” shall
include, but not be limited to all state and federal statutory and regulatory provisions
governing use of the Property, the California Environmental Quality Act (“CEQA”) the
environmental mitigation measures required for the Project attached as Exhibit C, and the
rules, regulations and official policies of City, including the plans, municipal codes,
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3
whichever occurs flrst.
3.1.2 Subject to the City’ s exercise of its police power authority and applicable
limitations on development agreements in state law, the Owner shall have a vested right to:
(i) receive from the City all future development approvals for the Property that are
consistent with the Project Approvals; (ii) not have such approvals be conditioned or
delayed for reasons which are inconsistent with this Development Agreement; and (iii)
develop the Property in a manner consistent with such future development approvals in
accordance with this Development Agreement. Any future development approvals for the
Property, including without limitation general plan amendments, zoning changes, or parcel
maps or tract maps, shall upon approval of the City be vested in the same manner as
provided in this Development Agreement. In furtherance of the foregoing, the Owner
retains the right to apportion the uses, intensities and densities, between itself and any
other owners of the Property, upon the sale, transfer or assignment of any portion of the
Property, so long as such apportionment is consistent with the future entitlements
obtained from the City, and this Development Agreement.
3.1.3 City may apply to the Project and the Property any rule, regulation or official policy
of City (including any plan, municipal code, ordinance, resolution or other local law,
regulation, capital facility fee or policy of City) (each a “City Law”) that does not confiict
with Applicable Rules or this Agreement. City shall not, however, without the written
consent of Owner apply to the Project or the Property (whether by initiative, referendum,
imposition of mitigation measures not otherwise required under CEQA or otherwise) any
City Law that is in confiict with the Applicable Rules or this Agreement.
3.1.4 Under this Agreement, Owner has a vested right to develop the Project in
accordance with this Agreement, the Applicable Rules, and in accordance with the Project
Approvals for the Project as described herein, for ten (10) years from the Effective Date of
this Agreement (“Term”) unless this Term is otherwise terminated or extended as set forth
in this Agreement. If any person not party to this Agreement institutes any administrative,
legal, or equitable action or other proceeding challenging the validity of any provision of
ordinances, resolutions and other local laws, regulations, fees and policies of City in force
and effect on the Effective Date. Owner agrees to participate in and vote to approve the
annexation to the City’s Community Facilities District No. 2005-1 (Public Services) prior to
issuance of any residential permit or recordation of any subsequent subdivision map,
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this Agreement, the Term shall be extended for the period of time required for the
administrative, legal, or equitable action or other proceeding to come to a conclusion.
3.1.5 The City and Owner intend that Owner shall have such rights to develop the Project
in accordance with the Project Approvals to the full extent provided for in the Development
Agreement Statute and case law construing or interpreting Development Agreements,
except as expressly modifled by this Agreement.
3.1.6 This Agreement shall be subject to all the requirements and obligations of a
Development Agreement under the Development Agreement Statute. Nothing herein shall
prevent City from applying to the Project standards contained in uniform building,
construction, flre or other uniform codes, as the same may be adopted or amended from
time to time by City, provided that the provisions of any such uniform code shall: (i) Apply to
the Project only to the extent that such code is in effect on a City-wide basis; and (ii) With
respect to those portions of any such uniform code that have been adopted by City without
amendment, be interpreted and applied consistently with the generally prevailing
interpretation and application of such code in California. Nothing herein shall prevent City
from applying to the Project those standards and speciflcations for public improvements
(e.g., streets, storm drainage, parking lots, and driveway widths) that are in effect on a City-
wide basis, as they are adopted or amended from time to time by City, provided that such
standards and speciflcations shall apply to the Project and the Property only to the extent
that they are in effect on a City-wide basis. Notwithstanding the foregoing sentence, Owner
shall not be required to modify the existing drainage culvert beneath Viejo Camino unless
required by applicable state and/or federal agencies.
3.1.7 City agrees that all impact fees within the control of the City shall be those in effect
on the earlier of (a) the effective date of the ordinance approving this Agreement, or (b) the
date on which a complete preliminary application is submitted pursuant to Government
Code Section 65941.1(a). The impact fees shall be subject to annual adjustment each July
1 during the Term of the Development Agreement by the greater of the CPI-U, Los Angeles-
Long Beach-Anaheim, All Urban Consumers, All Items. Owner shall pay any plan check
and inspection fees in effect at the time of permit application(s) with exception of any in-
lieu affordable housing fees or development agreement processing fees, or requirement of
affordable housing units, which are expressly waived under the terms of this Agreement.
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3.1.8 Due to the anticipated affordability of units within the Project, the City agrees that
affordable housing shall not be required, and no affordable housing in lieu fees shall be
assessed against the Project or Owner.
3.1.9 Due to the nature of the project, the City agrees that no traffic improvements shall
be required except as required by this Agreement or as may be required to comply with
CEQA.
3.1.10 City will allow a grading permit and realignment of the water way before submittal of
the development application upon receipt of approvals for water way realignment from
applicable state and/or federal agencies.
3.1.11 City Owner may request expedited processing for all construction and building
permits at the rates established in the City’s master fee schedule and/or direct charges
from the outside consulting plan checkers.
3.2 Owner. Owner agrees to the following restrictions and conditions on the Project:
3.2.1 Owner will dismiss the litigation within flve business days after the effective date of
the ordinance approving this Development Agreement. Owner further agrees to develop
the Project in substantial conformity with the application already submitted.
3.2.2 The fioodway shall be retained and the creek shall be designed as a natural feature
and site amenity. If the creek is realigned, the project shall maintain a naturalized creek
alignment and remap the fioodway through FEMA. No channelization of the creek is
allowed through the use of concrete armoring or other man-made structures. Pursuant to
Policy 8.2 of the General Plan, all habitable structures on-site shall maintain a minimum
20-foot setback from the top of bank, or shall be located outside the mapped fioodway,
whichever is greater. All other structures shall maintain a minimum 10-foot setback from
the top of bank.
3.2.3 Owner shall submit the Project’s fiood control measures and drainage channel
improvements on the Property to the California Department of Fish & Wildlife (“CDFW”)
and other appropriate state and federal agencies, as necessary. Owner shall comply with
all requirements imposed and permits issued by such state and federal agencies for fiood
control measures, drainage channel improvements, and biological remediation on the
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Property. City shall not require any modiflcations to the approvals issued by any state
and/or federal agencies.
3.2.4 A hydrology/hydrological drainage report prepared by a licensed civil engineer is
required that demonstrates compliance with stormwater runoff rate control and post-
construction requirements and that no negative impacts will occur to downstream,
upstream, and adjacent properties at time of project submittal.
3.2.5 Access shall be from Viejo Camino and shall align with Bocina Lane to the greatest
extent feasible, or other location mutually agreed upon by the City and Owner.
3.2.6 Frontage improvements shall be required on Viejo Camino to include concrete curb,
gutter, and sidewalk (5-ft.) to accommodate the existing bike lane (5-ft.).
3.2.7 Street trees will be provided at a maximum spacing of 30-feet on-center to be
planted behind sidewalk along Viejo Camino, and along El Camino Real outside the City’s
current right-of-way. Naturalized tree groupings may be permitted at a distance greater
than 30 feet.
3.2.8 The project will design and construct and dedicate a vehicular access and public
utilities easement for city maintenance needs unless alternative access to manholes is
provided through circulation design of the project. If the easement remains the primary city
access, the accessway must be constructed of base and built to carry the weight of the
City’s sewer cleaning truck. Owner shall dedicate an additional flve-foot wide easement
immediately adjoining the existing easement, on the southern Property boundary line, to
ensure the City has unobstructed access to the existing easement once the fioodway
realignment has occurred. Owner agrees that the top of bank of the realigned fioodway
shall be a minimum of seven and one-half (7.5) feet from the City’s existing sewer line in the
easement.
3.2.9 All new and relocated utilities on the Project site will be undergrounded.
3.2.10 A pedestrian connection across the creek shall be provided internal to the project.
3.2.11 Creek crossings for both vehicles and pedestrians may utilize precast concrete or
HDPC culverts and will not be deemed as “channelization.”
3.2.12 Except as set forth in Section 4.1, Owner agrees that he shall not develop the
Property with more than 42 residential units, nor shall he apply for a density bonus or other
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waivers, incentives or concessions pursuant to Government Code Section 65915 or
subsequently adopted similar statutes that require a public agency to grant density
bonuses for specifled reasons.
3.2.13 Owner acknowledges and agrees that the terms and provisions of this Agreement
speciflcally permit City in some instances to impose requirements upon the Project that
City would not otherwise be able to impose due to a lack of nexus, rough proportionality or
reasonable relationship between the Project and such requirement or other reasons. To the
extent any such requirement is imposed by City upon the Project consistently with the
terms and provisions of this Agreement, Owner waives any right to challenge the
imposition of such requirement by City.
4.0 Project Development
4.1 Confiicting enactments. Except as otherwise provided herein, any change in the
Applicable Rules, including, without limitation, any change in any applicable general, area
or speciflc plan, zoning, subdivision or building regulation, adopted or becoming effective
after the Effective Date, including, without limitation, any such change by means of an
ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any
reason whatsoever and adopted by the City Council, the Planning Commission or any other
board, commission or department of City, or any officer or employee thereof, or by the
electorate, as the case may be, which would, absent this Agreement, otherwise be
applicable to the Project and which would confiict in any way with, be more restrictive, or
impose greater obligations or burdens on Owner, than the Applicable Rules (“Subsequent
Rules”), shall not be applied by City unless both Owner and City consent in writing.
However, should subsequent City action result in an increase in allowable density, and the
Project has not been completed, the increased density shall apply to the Project.
4.2 Expiration. Following the expiration of the ten-year Term of this Agreement, this
agreement shall be deemed terminated and of no further force and effect except as to
actions arising from enforcement of its terms during the Term; provided, however, such
termination shall not affect any right or duty arising from City approvals, and provided that
any ongoing construction work being performed pursuant to the Project Approvals shall be
allowed to be completed pursuant to the Applicable Rules notwithstanding the termination
of this Agreement.
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4.3 Term of Maps and Other Project Approvals. Pursuant to California Government Code
Sections 66452.6(a) and 65863.9, the term of any subdivision or parcel map that may be
processed on all or any portion of the Project, and the term of each of the Project Approvals
shall be extended for a period of time equal to the Term of this Agreement as set forth in
Section 3.1.4.
4.4 Timing of Development. Because the California Supreme Court held in Pardee
Construction Co. v. County of Camarillo (1984), 37 Cal.3d 465, that failure of the parties
therein to provide for the timing of development resulted in a later-adopted initiative
restricting the timing of development to prevail over such parties’ agreement, it is the
parties’ intent to cure that deflciency by acknowledging and providing that Owner shall
have the right (without obligation) to develop portions of the Project in such order and at
such rate and at such times as Owner deems appropriate within the exercise of its
subjective business judgment. City shall not attempt to limit or restrict the timing of
development of the Project except in accordance with the terms of this Agreement.
4.5 Owner shall complete the Project not later than twelve (12) years after the Effective
Date. Should Owner fail to complete construction on the Project within this time period,
absent an agreed-upon extension of this Agreement, which shall not be unreasonably
withheld by City, Owner’s right to develop the Property as set forth herein shall lapse and
be of no further force or effect. Notwithstanding anything to the contrary in Section 4.2, this
section shall survive any termination of the Agreement.
4.6 Moratoria/Initiatives. No City-imposed moratorium or other limitation relating to the
rate, timing or sequencing of the development or construction of all or any part of the
Project, whether imposed by ordinance, initiative, resolution, policy, order or otherwise,
and whether enacted by the City Council, the Planning Commission, an agency of City, the
electorate, or otherwise, affecting parcel or subdivision maps (whether tentative, vesting
tentative or flnal), building permits, occupancy certiflcates or other entitlements to use or
service (including, without limitation, water and sewer unless such water or sewer
moratoria or other limitations are imposed City-wide to protect the public health, safety
and welfare) approved, issued or granted within City, or portions of City, shall apply to the
Project.
4.7 Vesting of Owner’s Rights. The rights to the Applicable Rules and entitlements
pursuant to Project Approvals granted to Owner pursuant to this Agreement shall be and
constitute “vested rights” or the equivalent of “vested rights” applicable to the
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development of land and property and the right of a public entity to regulate or control such
development of land or property, including, without limitation, vested rights to land use
permits, building permits and certiflcates of occupancy consistent therewith, unless the
City determines that failure to apply a new ordinance or regulation would place the
residents of the Project or other residents of the City in a condition of substantial danger to
their health or safety, or both. In such an instance, the City may condition or deny an
entitlement, permit, extension or approval as may be necessary to comply with later
enacted State or Federal laws regulations.
4.8 Future Amendments. In the future, there may be a need to make minor changes to
the Modifled Project Approvals, which minor changes will not signiflcantly modify the
Project, and which may be required to properly implement the Project Approvals. The
parties agree that such minor modiflcations shall not be considered amendments to this
Agreement, and they shall be allowed on approval of the Planning Director without notice
and public hearings, or placement upon the agenda of the Planning Commission or the City
Council. “Minor modiflcation” is deflned as any modiflcation to the Project which will just in
cost increases of less than $250,000.00, or any mutually agreed upon modiflcation.
4.9 Cooperation. The provisions of this Agreement require a close degree of good faith
cooperation between the City and Owner. Implementation of the Project may require minor
modiflcations of the details of the Project and affect the performance of the parties to this
Agreement. The anticipated reflnements of the Project and the development of the
Property may require that appropriate clariflcations and reflnements are made to this
Agreement with respect to the details of the performance of the City and the Owner which
shall be considered by both parties in good faith. The parties desire to retain a certain
degree of fiexibility with respect to those items covered in general terms under this
Agreement so long as the exercise of such fiexibility does not result in a material change to
either of the parties’ reasonable expectations consistent with the purpose of this
Agreement. Except as the parties may otherwise agree, no amendment of this
Development Agreement shall be required in connection with the issuance of any future
Project approval.
5.0 Cooperation of Implementation.
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5.1 Further Assurances: Covenants to Sign Documents. Each party shall take all actions
and do all things, and execute, with acknowledgment or affidavit, if required, any and all
documents and writings, that may be necessary or proper to achieve the purposes and
objectives of this Agreement.
5.2 Processing by City. Upon satisfactory completion by Owner of all required
preliminary actions and payments of appropriate processing fees, if any, City shall process
the Project subject to all legal requirements, initiate process, complete at a reasonable
time all required steps, and grant ministerial approvals or permits necessary for the
development by Owner of the Project in accordance with this Agreement, including but not
limited to, the processing of applications for and issuing of all ministerial approvals
required for the implementation of and the determination of conformance with the Project
Approvals, this Agreement, and Applicable Rules as necessary for the completion of the
development of the Project (“Ministerial Approvals”).
5.3 Processing during litigation. The flling of any third-party lawsuit(s) against City or
Owner relating to this Agreement or to other development issues affecting the Project shall
not delay or stop the development, processing or construction of the Project, or issuance
of Ministerial Approvals, unless the third party obtains a court order enjoining or otherwise
preventing the activity. City shall not stipulate the issuance of any such order.
5.4 Defense of Agreement. Owner shall indemnify, and offer to defend (with counsel
jointly selected by Owner and City,) and hold harmless City and its officers, employees and
agents from and against any and all losses, liabilities, flnes, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting from, City’s approval
of this Agreement or either Party’s performance pursuant to this Agreement. Owner shall
seek and secure City’s consent to any settlement of such action only if such settlement
materially changes the Project or the Property, which consent shall not unreasonably be
withheld or delayed. Owner agrees that Owner’s counsel will not disclose any information
confldential to the City, gained during such defense, in any future proceedings where City
may be adverse to Owner or Owner’s counsel, including quasi-judicial, or administrative
proceedings. City further irrevocably agrees not to assert any representation in such
defense by Owner’s counsel as a potential confiict of interest in any future quasi-judicial,
or administrative proceeding, where City is a permitting agency, not related to the Project,
and City hereby irrevocably waives any actual or potential confiict of interest under such
circumstances. If this Agreement is adjudicated or determined to be invalid or
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unenforceable, City agrees, subject to all legal requirements, to consider modiflcations to
this Agreement to render it valid and enforceable to the extent permitted by applicable law.
5.5 Indemnity Arising From Construction. Owner shall defend and indemnify City from
and against any and all damages, claims, costs and liabilities arising out of the personal
injury or death of any person, or damage to the property of any person, to the extent such
damages, claims, costs or liabilities result from the construction of the Project by Owner or
by Owner’s contractors, subcontractors, agents or employees, except as caused by the
sole negligence, active negligence or willful misconduct of City, its officers, employees,
contractors, consultants or agents.
5.6 Failure to Accept Tender of Defense. If Owner should fail to accept City’s tender of
defense as set forth in Sections 5.4 and 5.5, City shall defend any actions asserted against
City and control the defense and/or settlement of such action as City decides in its sole
discretion, and City may take any and all actions it deems necessary and appropriate in its
sole discretion in connection therewith. Owner shall indemnify City against reasonable
fees and costs arising out of the City’s defense of such action. In any action or proceeding
challenging the approval of this Agreement, the City shall reasonably cooperate with
Owner in defending such action or proceeding. Notwithstanding the foregoing, if Owner
determines for any reason that it no longer intends to develop the Project, then it may
deliver notice of such determination to City, and Owner shall not be liable for any defense
costs incurred by City more than 90 days following the delivery of such notice.
5.7 City Cooperation and Discretion. City agrees to cooperate with Owner in obtaining
the approval of other public agencies by providing any documents or certiflcates
reasonably required to process and obtain such permits and approvals from other public
agencies. City retains full discretion in any future discretionary actions with respect to the
Project consistent with the Applicable Rules and section 5.6 herein.
6.0 General Provisions
6.1 Covenants Run with the Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement shall be binding
upon the parties and their respective heirs, successors (by merger, reorganization,
consolidation or otherwise) and assigns, devises, administrators, representatives, lessees,
and all other persons acquiring the Project, or any portion thereof, or any interest therein,
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whether by operation of law or in any manner whatsoever, and shall inure to the beneflt of
the parties and their respective heirs, successors and assigns. All of the provisions of this
Agreement shall constitute covenants running with the land pursuant to applicable laws,
including, but not limited to, Civil Code Section 1468.
6.2 Transfer and Assignment. Right to Assign. Owner shall have the right to sell, assign
or transfer all or portions of the real property comprising the Project to any person at any
time during the Term of this Agreement. Upon the delegation of all duties and obligations
and the sale, transfer or assignment of all or any portion of the Property, Owner shall be
released from its obligations under this Agreement with respect to the Property, or portion
thereof so transferred, arising subsequent to the effective date of such transfer if all of the
following are true: (i) Owner has provided to City flfteen (15) business days’ written notice
of such transfer (ii) the transferee has agreed in writing to be subject to all of the provisions
hereof applicable to the portion of the Property so transferred (iii) owner is not in default of
this Agreement (iv) no such partial transfer shall violate the Subdivision Map Act,
Government Code Section 66410 et seq., and (v) the City Council agrees to release the
Owner from its duties and obligations under this agreement, which release shall not be
unreasonably withheld. As to item (v) above, City’s failure to respond within 30 days of the
receipt of notice shall be deemed an agreement to release the Owner. Upon any transfer of
any portion of the Property and the express assumption of Owner’s obligations under this
Agreement by such transferee, City agrees to look solely to the transferee for compliance
by such transferee with the provisions of this Agreement as such provisions relate to the
portion of the Property acquired by such transferee. A default by any transferee shall only
affect that portion of the Property owned by such transferee and shall not cancel or
diminish in any way Owner’s rights hereunder with respect to any portion of the Property
not owned by such transferee. The transferee shall be responsible for the reporting and
annual review requirements relating to the portion of the Property owned by such
transferee, and any amendment to this Agreement between City and a transferee shall only
affect the portion of the Property owned by such transferee.
6.3 Statement of Compliance. Within sixty days following any written request which
either City or Owner may make from time to time, the other shall execute and deliver to the
requesting party a statement (“Statement of Compliance”) certifying that: (1) this
Agreement has not been modifled and in full force and effect or, if there have been
modiflcations hereto, that this Agreement is in full force and effect, as modifled, and
stating the date and nature of such modiflcations; (2) there are no current known uncured
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defaults under this Agreement or specifying the dates and nature of any such defaults; and
(3) any other reasonable information requested. The failure to deliver such statement
within such time shall be conclusive upon the party which fails to deliver such statement
that this Agreement is in full force and effect without modiflcation and that there are no
uncured known defaults in the performance of the requesting party. The City Clerk shall be
authorized to execute any Statement of Compliance pursuant to this section. City and
Owner may make only one request for a Statement of Compliance, respectively, within any
twelve-month period beginning at the Effective Date or the date of an immediate past
request by the requesting party, whichever occurred last. City shall not be bound by a
statement of compliance if a default existed at the time of execution but was concealed
from the City.
6.4 Default. Failure by City or Owner to perform any term or provision of this Agreement
for a period of sixty days, subject to extensions to time by mutual consent in writing, from
the receipt of written notice thereof from the other shall constitute a default under this
Agreement. Said notice shall specify in detail the nature of the alleged default and the
manner in which said default may be satisfactorily cured. If the nature of the alleged
default is such that it cannot reasonably be cured within such 60-day period, the
commencement of the cure within such time period and the diligent prosecution to
completion of the cure shall be deemed a cure within such period. Subject to the
foregoing, after notice and expiration of the 60-day period without cure, the notifying party,
at its option, may institute legal proceedings pursuant to this Agreement and/or give notice
of intent to terminate this Agreement, in the manner provided by Government Code Section
65867 for adoption of a development agreement.
6.5 Default Remedies. In addition to that provided for in Section 6.4, in the event either
party defaults (as deflned in Section 6.4) under the terms of this Agreement, the other party
shall have all rights and remedies provided herein or under applicable law, including the
speciflc performance of this Agreement.
6.6 Legal Action. Any party may, in addition to any other rights or remedies, institute
legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation hereof, or enforce by speciflc
performance the obligations and rights of the parties hereto. Venue in any legal action
instituted in the Superior Court of the State of California shall be San Luis Obispo County.
Venue in any legal action instituted in United States District Courts shall be in the Central
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District of California. Owner hereby consents to personal jurisdiction in these respective
courts for that purpose.
6.7 Waiver & Remedies. Failure by City or Owner to insist upon the strict performance of
any of the provisions of this Agreement, irrespective of the length of time for which such
failure continues, shall not constitute a waiver of the right to demand strict compliance
with this Agreement in the future. No waiver by City or Owner of a default or breach of any
other party shall be effective or binding upon it unless made in writing, and no such waiver
shall be implied from any omission by City or Owner to take any action with respect to such
default or breach. No express written waiver of any defaults or breach shall affect any other
default or breach, or cover any other period of time, other than any default or breach and/or
period of time specifled in such express waiver. One or more written waivers of a particular
default or breach under any provision of this Agreement shall not be a waiver of any
subsequent default or breach of that provision or the performance of the same or any other
term or provision contained in this Agreement. Subject to notice of default and opportunity
to cure under Section 6.4, all of the remedies permitted or available under this Agreement,
at law or in equity, shall be cumulative and alternative, and invocation of any such right or
remedy shall not constitute a waiver or election of remedies with respect to any other
permitted or available right or remedy.
6.8 Non-Recourse. The obligations of Owner under this Agreement shall be without
recourse to the assets of the general partners or of any general partner, officer,
shareholder, director, unit holder or employee of Owner or any general partner of Owner.
6.9 Permitted Delays & Supersedure By Subsequent Laws.
6.9.1 Permitted Delays. In addition to any speciflc provisions of this Agreement,
performance of obligations hereunder shall be excused and the Term of Agreement shall be
similarly extended during any period of delay caused at any time by reason of: acts of God,
such as fioods, earthquakes, flres, or similar catastrophes; wars, riots or similar hostilities;
strikes and other labor difficulties beyond the party’s reasonable control (including the
party’s employment force); the enactment of new laws or restrictions imposed or
mandated by other governmental or quasi-governmental entities preventing this
Agreement from being implemented; litigation involving this Agreement, the Project
Approvals, or the Ministerial Approvals, which directly or indirectly delays any activity
contemplated hereunder or other causes beyond the party’s reasonable control. City and
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Owner shall promptly notify the other party of any delay hereunder as soon as possible
after the nature and duration of such delay has been ascertained.
6.9.2 Supersedure by Subsequent Laws. If any federal or state law, made or enacted after
the Effective Date prevents or precludes compliance with one or more provisions of this
Agreement, then the provisions of this Agreement shall, to the extent feasible, be modifled
or suspended as may be necessary to comply with such new law. Immediately after
enactment or promulgation of any such new law, City and Owner shall meet and confer in
good faith to determine the feasibility of any such modiflcation or suspension based on the
effect such modiflcation or suspension would have on the purposes and intent of this
Agreement. Owner and City shall have the right to challenge the new law preventing
compliance with the terms of this Agreement, and in the event such challenge is
successful, this Agreement shall remain unmodifled and in full force and effect. Owner and
City, by mutual consent, may elect to extend the term of this Agreement for the duration of
the period during which such new law precludes compliance with the provisions of this
Agreement.
6.10 Amendments. This Agreement may be amended from time to time by mutual
consent of the parties to this Agreement, in accordance with the provisions of Government
Code sections 65867 and 65868, unless compliance with those sections is excused under
the terms of Paragraph 4.7, above.
6.11 Annual Review of Agreement. Pursuant to Government Code Section 65865.1, the
annual review date for this Agreement (the “Review Date”) shall be one year following the
Effective Date and the annual anniversary of said date each year thereafter. The City’s
Planning Department shall initiate the annual review by giving to Owner, no later than sixty
(60) days following the Review Date, written notice that the City intends to undertake such
review for the annual period ending with the Review Date. Owner shall be required to pay to
City such fees as are established by City Council resolution for the annual review of a
development agreement, if any. Such fees shall be limited to the reasonable costs
incurred by the City in conducting the Annual Review, if any. Owner shall provide evidence
of good faith compliance with the terms and conditions of this Agreement to the Planning
Department within thirty (30) days following receipt of the Planning Department’s notice.
The Planning Department shall review the evidence submitted by Owner and shall, within
thirty (30) days following receipt of Owner’s evidence, make a recommendation to the City
Council either (1) that the City Council flnd that Owner has demonstrated good faith
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compliance with the terms and conditions of this Agreement, or (2) that the City Council
flnds that Owner has not demonstrated good faith compliance with the terms and
conditions of this Agreement, setting forth with speciflcity the basis on which the Planning
Department makes its recommendation of a flnding of non-compliance. In the event the
City Council flnds that Owner has not demonstrated good faith compliance with the terms
and conditions of this Agreement, City may terminate this agreement pursuant to
Government Code Section 65865.1. In the event that City does not initiate an annual review
or that the City Council does not make its determination within six months of the Review
Date for a given year, then it shall be deemed conclusively that Owner has complied in
good faith with the terms and conditions of this Agreement during the period under review.
7.0 Miscellaneous Provisions
7.1 Incorporation of Recitals and Exhibits. Exhibits A through C attached hereto and
referred to herein are incorporated in this Agreement as though fully set forth in the body
hereof.
7.2 Negation of Partnership. The Project constitutes private development, neither City
nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner
are independent entities with respect to the terms and conditions of this Agreement. None
of the terms or provision of this Agreement shall be deemed to create a partnership
between or among the parties in the businesses of Owner, the affairs of City, or otherwise,
nor shall it cause them to be considered joint ventures or members of any joint enterprise.
7.3 No Third party beneflciary. This Agreement is not intended, nor shall it be construed,
to create any third-party beneflciary rights in any person who is not a party, unless
expressly otherwise provided.
7.4 Entire Agreement. This Agreement as augmented by the Project Approvals sets forth
and contains the entire understanding and agreement of the parties, and there are no oral
or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or
evidence of any such representations, understandings or covenants shall be admissible in
any proceeding of any kind or nature to interpret or determine the terms or conditions of
this Agreement.
7.5 Severability. Invalidation of any of the provisions contained in this Agreement, or of
the application thereof to any person, by judgment or court order shall in no way affect any
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of the other provisions hereof or the application thereof to any other person or
circumstance, and the same shall remain in full force and effect, unless enforcement of
this Agreement, as so invalidated, would be unreasonable or grossly inequitable under all
the circumstances or would frustrate the purposes of this Agreement and the rights and
obligations of the parties hereto.
7.6 Construction. The provisions of this Agreement and the Exhibits hereto shall be
construed as a whole according to their common meaning and not strictly for or against
Owner or City and consistent with the provisions hereof, in order to achieve the objectives
and purposes. Wherever required by the context, the singular shall include the plural and
vice versa, and the masculine general shall include the feminine or neuter genders, or vice
versa.
7.7 Section Headlines. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
7.8 Applicable law. This Agreement shall be construed and enforced in accordance with
the laws of the State of California. This Agreement shall be construed as a whole according
to its fair language and common meaning to achieve the objective and purposes of the
parties hereto and the rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in interpreting this Agreement, all parties
having been represented by counsel in the negotiation and preparation hereof.
7.9 Notice. Any notice shall be in writing and given by delivering the same in person or
by sending the same registered, or certifled mail, return receipt requested, with postage
prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as
follows:
City: Mr. Jim Lewis
City Manager
City of Atascadero
6500 Palma Ave
Atascadero CA 93422
Email: jlewis@atascadero.org
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Copy to: David Fleishman
City Attorney
Richards, Watson & Gershon
847 Monterey Street, Ste 206
San Luis Obispo CA
Email: dfieishman@rwglaw.com
Owner: Scott Newton
215 Santa Fe Ave
Pismo Beach CA 93449
Email: Scott@manyflgs.com
Copy to: Kate Neiswender
Law Office of K.M. Neiswender
Post Office Box 1225
Blue Jay CA 92317
Email: katelawventura@gmail.com
City or Owner may change its mailing address at any time by giving written notice of such
change to the other in the manner provided herein at least ten (10) days prior to the date
such change is effected. All notices under this Agreement shall be deemed given, received,
made or communicated on the earlier of the date personal delivery is effected or on the
delivery date or attempted delivery date shown on the return receipt or air bill. Delivery by
email shall not be an effective means of delivering notice; however, any notice provided
should, whenever possible, be given by email as well as other means of allowed delivery.
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7.10 Time is of the essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
7.11 Recordation. In order to comply with section 65868.5 of the Government Code, the
parties do hereby direct the City Clerk to record a copy of this Agreement against the
Property with the County Recorder of San Luis Obispo County within ten (10) days after the
Effective Date.
7.12 Successors and Assigns. The provisions of this Agreement shall be binding of the
parties hereto, and subsequent owner of all or any portion of the property and their
respective successors and assigns. Any successors in interest to the City shall be subject
to the provisions set forth in sections 65865.4 and 65868.5 of the California Government
Code.
IN WITNESS WHEREOF, OWNER AND CITY have executed this Agreement as of the date
hereinabove written.
CITY OF ATASCADERO
______________________________
Mayor
ATTEST: ___________________________
City Clerk
Approved as to Form:
_____________________________
David Fleishman, City Attorney
OWNER
_____________________________
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Scott Newton
_____________________________
Kate M. Neiswender, Counsel for Owner
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NEWTON DEVELOPMET AGREEMENT EXHIBIT A: LEGAL DESCRIPTION
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NEWTON DEVELOPMENT AGREEMENT EXHIBIT B: PROJECT PLAN
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NEWTON DEVELOPMENT AGREEMENT EXHIBIT C: MITIGATION MONITORING
PROGRAM
MITIGATION MEASURE TIMING
Aesthetics
AES-1.1 All site retaining walls shall be constructed or clad in a natural
looking material that blends with the surrounding site context.
Retaining walls shall be dark colored split face block,
rock/stone clad, or similar material and/or color profile.
Prior to Permit
Issuance
Air Quality
AQ 2-1 The project shall comply with the following SLO APCD
Standard Mitigation Measures for reducing nitrogen oxides
(NOx), reactive organic gases (ROG)and diesel particulate
matter (DPM) emissions from construction equipment:
• Maintain all construction equipment in proper tune
according to manufacturer’s specifications;
• Fuel all off-road and portable diesel-powered
equipment with ARB certified motor vehicle diesel fuel
(non-taxed version suitable for use off-road);
• Use diesel construction equipment meeting ARB's Tier
2 certified engines or cleaner offroad heavy-duty diesel
engines, and comply with the State Off-Road
Regulation;
• Use on-road heavy-duty trucks that meet the ARB’s
2007 or cleaner certification standard for on-road
heavy-duty diesel engines, and comply with the State
On-Road Regulation;
• Construction or trucking companies with fleets that that
do not have engines in their fleet that meet the engine
standards identified in the above two measures (e.g.,
captive or NOx exempt area fleets) may be eligible by
proving alternative compliance;
• All on and off-road diesel equipment shall not idle for
more than 5 minutes. Signs shall be posted in the
designated queuing areas and or job sites to remind
drivers and operators of the 5-minute idling limit;
• Diesel idling within 1,000 feet of sensitive receptors is
not permitted;
• Staging and queuing areas shall not be located within
1,000 feet of sensitive receptors;
• Electrify equipment when feasible;
During
construction
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• Substitute gasoline-powered in place of diesel-
powered equipment, where feasible; and,
• Use alternatively fueled construction equipment on-site
where feasible, such as compressed natural gas
(CNG), liquefied natural gas (LNG), propane or
biodiesel.
AQ 2-2 The project shall comply with the following SLO APCD Fugitive
Dust Mitigation Measures for projects with nearby sensitive
receptors and/or earthwork exceeding 4-acres to minimize
nuisance impacts and to significantly reduce fugitive dust
emissions:
• Reduce the amount of the disturbed area where
possible;
• Use of water trucks or sprinkler systems, in sufficient
quantities to prevent airborne dust from leaving the site
and from exceeding the APCD’s limit of 20% opacity for
greater than 3 minutes in any 60-minute period.
Increased watering frequency would be required
whenever wind speeds exceed 15 mph. Reclaimed
(non-potable) water should be used whenever
possible. Please note that during drought conditions,
water use may be a concern and the contractor or
builder shall consider the use of an APCD-approved
dust suppressant where feasible to reduce the amount
of water used for dust control.
• All dirt stock pile areas should be sprayed daily as
needed;
• Permanent dust control measures identified in the
approved project revegetation and landscape plans
should be implemented as soon as possible following
completion of any soil disturbing activities;
• Exposed ground areas that are planned to be reworked
at dates greater than one month after initial grading
should be sown with a fast germinating, non-invasive
grass seed and watered until vegetation is established;
• All disturbed soil areas not subject to revegetation
should be stabilized using approved chemical soil
binders, jute netting, or other methods approved in
advance by the APCD;
• All roadways, driveways, sidewalks, etc. to be paved
should be completed as soon as possible. In addition,
building pads should be laid as soon as possible after
grading unless seeding or soil binders are used;
During
construction
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• Vehicle speed for all construction vehicles shall not
exceed 15 mph on any unpaved surface at the
construction site;
• All trucks hauling dirt, sand, soil, or other loose
materials are to be covered or should maintain at least
two feet of freeboard (minimum vertical distance
between top of load and top of trailer) in accordance
with CVC Section 23114;
• “Track-Out” is defined as sand or soil that adheres to
and/or agglomerates on the exterior surfaces of motor
vehicles and/or equipment (including tires) that may
then fall onto any highway or street as described in
California Vehicle Code Section 23113 and California
Water Code 13304. To prevent Track Out, designate
access points and require all employees,
subcontractors, and others to use them. Install and
operate a “track-out prevention device” where vehicles
enter and exit unpaved roads onto paved streets. The
track-out prevention device can be any device or
combination of devices that are effective at preventing
track out, located at the point of intersection of an
unpaved area and a paved road. Rumble strips or steel
plate devices require periodic cleaning to be effective.
If paved roadways accumulate tracked out soils, the
track-out prevention device may need to be modified.
• Sweep streets at the end of each day if visible soil
material is carried onto adjacent paved roads. Water
sweepers with reclaimed water should be used where
feasible;
• All of these fugitive dust mitigation measures shall be
shown on grading and building plans; and
• The contractor or builder shall designate a person or
persons to monitor the fugitive dust emissions and
enhance the implementation of the measures as
necessary to minimize dust complaints, reduce visible
emissions below 20% opacity, and to prevent transport
of dust offsite. Their duties shall include holidays and
weekend periods when work may not be in progress.
The name and telephone number of such persons shall
be provided to the APCD. Compliance Division prior to
the start of any grading, earthwork or demolition.
AQ 2-3 The Project shall comply with the following SLO APCD Diesel
Idling Restrictions for Construction Phases to reduce air quality
impacts to nearby sensitive receptors:
• Staging and queuing areas shall not be located
within 1,000 feet of sensitive receptors;
Prior to permit
issuance
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• Diesel idling within 1,000 feet of sensitive receptors
is not permitted;
• Use of alternative fueled equipment is
recommended whenever possible; and,
• Signs that specify the no idling requirements must
be posted and enforced at the construction site.
• Idling Restrictions for On-road Vehicles. Signs must
be posted in the designated queuing areas and job
sites to remind drivers of the 5-minute idling limit
consistent with Section 2485 of Title 13, the
California Code of Regulations
• Idling Restrictions for off-Road Equipment. Signs
shall be posted in the designated queuing areas
and job sites to remind off-road equipment
operators of the 5-minute idling limit pursuant to
Section 2449(d)(3) of the ARB’s In-Use off-Road
Diesel regulation.
Biological Resources
BIO 1-1 Pre Construction Surveys for Roosting Bats: Within 30
days prior to removal of existing structures and/or
mature trees, a sunset survey shall be conducted by a
qualified biologist to determine if bats are roosting on
site. If bats are present, a follow-up acoustic monitoring
survey shall be completed to determine, if feasible,
which species are present. If roosts of special-status bat
species are identified and will be impacted during the
proposed project, CDFW will be consulted to determine
appropriate measures to be implemented. If it is
determined that no special-status bats are present, the
project shall proceed under the guidance of a qualified
biologist, in a manner that minimizes impacts to
individual bats and roosts (e.g., conducting work only
during the day or installing one-way exclusions prior to
work).
Prior to permit
issuance
BIO 1-2 Pre Construction Surveys for Nesting Birds: If work is
planned to occur between February 1 and September
15, a qualified biologist shall survey the area for nesting
birds within one week prior to activity beginning on site.
If nesting birds are located on or near the proposed
project site, they shall be avoided until they have
successfully fledged or the nest is no longer deemed
active. A non-disturbance buffer of 50 feet will be placed
Prior to permit
issuance
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around non-listed, passerine species, and a 250-foot
buffer will be implemented for raptor species. All activity
will remain outside of that buffer until a qualified biologist
has determined that the young have fledged or that
proposed construction activities would not cause
adverse impacts to the nest, adults, eggs, or young. If
special-status avian species are identified, no work will
begin until an appropriate buffer is determined in
consultation CDFW, and/or the USFWS.
BIO 2-1 Protection of Hydrologic Resources: Construction within
and immediately adjacent to the drainage shall occur only
when conditions are dry. For short-term, temporary
stabilization, an erosion and sedimentation control plan
shall be developed outlining Best Management Practices
(BMPs), which shall be implemented to prevent erosion
and sedimentation into the channel during construction.
Acceptable stabilization methods include the use of
weed-free, natural fiber (i.e., nonmonofilament) fiber rolls,
jute or coir netting, and/or other industry standards. BMPs
shall be installed and maintained for the duration of the
construction period. In addition, the following general
measures shall be implemented during construction:
• The limits of disturbance within the existing
drainage feature shall be clearly shown on
all sites plans and flagged within the drainages
prior to project implementation. All construction
personnel shall be directed to avoid impacts to
the areas immediately upstream and downstream
of the proposed development including the
existing culvert features located at El Camino
Real and Viejo Camino.
• All equipment and materials shall be stored out of
the streambed at the end of each working day,
and secondary containment shall be used to
prevent leaks and spills of potential contaminants
from entering the stream.
• During construction, washing of concrete, paint,
or equipment and refueling and maintenance of
equipment shall occur only in designated areas a
minimum of 50 feet from all drainages and
aquatic features. Sandbags and/or sorbent pads
Prior to permit
issuance/During
construction
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shall be available
to prevent water and/or spilled fuel from entering
drainages.
• Construction equipment shall be inspected by the
operator on a daily basis to ensure that
equipment is in good working order and no fuel or
lubricant leaks are present.
BIO 2-2 Compensatory Mitigation Plan: A compensatory
mitigation plan shall be developed to offset permanent
impacts to jurisdictional areas. The exact details and
performance criteria of the restoration plan shall be
determined during agency coordination with CDFW,
RWQCB, and USACE, as necessary. Stabilization and
restoration measures may include the installation of
BMPs and/or revegetation using native seed mixes and
plantings. Prior to project initiation, all applicable agency
permits with jurisdiction over the project area (i.e.,
USACE, CDFW, and RWQCB) should be obtained.
Additional mitigation measures required by these
agencies would be implemented as necessary. The City
shall not impose any additional mitigation measures in
addition to or in lieu of agency-required measures
without Owner’s consent.
Prior to permit
issuance
BIO 2-3 Agency Permitting: Prior to issuance of any permits for
grading or construction on-site, the applicant shall obtain
permits from the following agencies, and any other
agencies as necessary:
• California Department of Fish and Wildlife (CDFW)
• US Army Corps of Engineers (USACE)
• Regional Water Quality Control Board (RWQCB)
Any mitigation measures required by the above listed
permits shall be implemented to their fullest extent. City
shall not require any modifications to the approvals
issued by any state and/or federal agencies.
Prior to permit
issuance
BIO 3-1 Creek Channel Naturalization: The realigned creek shall be
constructed in a manner which maintains and enhances
natural flows and vegetation. A minimum 20-foot setback shall
be maintained from the top of creek bank to any structures.
Vehicular or pedestrian crossings of the re-aligned creek shall
be permitted as part of any future development. Such
crossings shall be designed as culvert crossings and shall
Prior to permit
issuance/Permit
final
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obtain any required permits from agencies prior to
construction.
BIO 3-2 Wetland Restoration: Should wetland impacts occur, and
wetland restoration be required on-site, the wetlands shall be
monitored for a period of not less than 5-years. Annual reports
from a qualified biologist shall be submitted to the City
addressing any irrigation modifications or replanting that may
be required to ensure successful naturalization of the restored
wetland habitat. A contract with a qualified biologist shall be
entered into prior to final of the development permit.
Post
construction
BIO 4-1 Special Status Species Plant Surveys: Prior ground
disturbing activities and when plants with potential to occur are
in a phenological stage conducive to positive identification (i.e.,
usually during the blooming period for the species), a qualified
biologist shall conduct surveys for special status plant species
within the project site. Valid botanical surveys will be
considered current for up to five years; if construction has not
commenced within five years of the most recent survey,
botanical surveys must be repeated.
Prior to permit
issuance
BIO 5-1 Implementation of Best Management Practices:
• Prior to ground disturbing and/or vegetation removal
activities, a setback area of 20-feet from the drainage
will be fenced with orange construction fencing and
signed to prohibit entry. Fencing should be located a
minimum of 20 feet from the OHWM and shall be
maintained throughout the construction or until
regulatory permits to impact the drainage have been
acquired.
• To control sedimentation during and after project
implementation, appropriate erosion control best
management practices (i.e., installation of silt fencing)
will be implemented to minimize adverse effects on the
drainage. The silt fencing shall be installed prior to
commencing construction in adjacent areas and
maintained throughout construction or until regulatory
permits to impact the drainage have been acquired.
• Any substances which could be hazardous to aquatic
species resulting from project-related activities will be
prevented from entering the drainage. All refueling,
maintenance, and staging of equipment and vehicles
shall occur at least 50 feet from the drainage and in a
location where a potential spill would not drain directly
toward the drainage. Prior to the onset of work
activities, a plan will be in place for prompt and effective
response to any accidental spills.
During
construction
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Water Quality and Hydrology
WQH 1-1 The applicant shall obtain all necessary permits form the
Regional Water Quality Control Board.
Prior to permit
issuance
WQH 2-1 Prior to issuance of any building permits, a FEMA Conditional
Letter of Map Revision (CLOMR) must be issued and
received by the City Engineer.
Prior to permit
issuance
WQH 2-2 The project design and construction shall comply with the
CLOMR. Prior to a final inspection or Occupancy release, the
developer must apply for and be issued a FEMA Letter of
Map Revision (LOMR) and a copy filed in the Office of the
City Engineer.
Prior to C of O
Land Use and Planning
LUP 1-1 See BIO 3-1 and BIO 5-1
Transportation / Traffic
TR 1-1 The primary access shall be from Viejo Camino at Bocina
Lane or La Paloma Court as approved by the City Engineer. A
left turn lane shall be provided into the project site. Widen
street, as needed, to accommodate lane configuration if
entrance aligns with La Paloma Court.
Prior to permit
issuance
TR 1-2 A Class II bike lane, curb, gutter, and sidewalk shall be
installed along the Viejo Camino project frontage.
Prior to C of O
TR 1-3 The travel lanes on Viejo Camino east of El Camino Real
shall be reduced to accommodate a bike lane or shared lane
markings shall be installed within the existing Class II bike
lane gap(s), subject to approval of the City Engineer.
Prior to C of O
TR 1-4 Install red curb at the El Camino Real / Viejo Camino
intersections and driveways into the existing commercail
development for pedestrian safety to and from the site.
Prior to C of O
TR 1-5 Provide an asphalt pedestrian pathway connection from the
project site frontage to the existing sidewalk east of El
Camino Real at the existing commercail development.
Prior to C of O
Tribal Cultural Resources
TCR 1 The owner/developer shall have all natural grade ground
disturbing activities monitored by a qualified professional or
local tribal monitor. An executed monitoring contract shall be
submitted to City staff prior to issuance of any permit
involving ground disturbance of the natural grade of the
existing site.
Prior to GP/BP
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Exhibit B: AMC Title 9 Zoning Text Amendment
9-3.695: Establishment of Development Agreement Overlay No. 1 (DA1)
Development Agreement Overlay Zone No. 1 is established as shown on the Official
Zoning Maps (Section 9-1.102 of this title) on parcels APNs 045-342-009 and 045-342-
010. The subject properties are subject to the provisions of a Development Agreement
recorded against the properties in San Luis Obispo County and on file with the City of
Atascadero.
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Exhibit C: Zoning Map Amendment
Current Zoning Designation: Public (P)
Amended Zoning Designation: Public / Development Agreement No. 1
(P/DA1)
Subject Parcels:
APNs 045-342-009 and
045-342-010
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CITY OF ATASCADERO 12/02/24 | Item A1 | Attachment 2
COMMUNITY DEVELOPMENT DEPARTMENT
Notice of Intent to Adopt
Mitigated Negative Declaration
PROJECT NO. DEV24-0075 Environmental Document No. 2024-0011
PROJECT TITLE Newton Development Agreement and Creek Realignment Concept
APPLICANT NAME &
PHONE NUMBER
Scott Newton
559-285-6214 Email scott@manyfigs.com
MAILING ADDRESS: 215 Santa Fe Rd Pismo Beach, CA 93449
STAFF CONTACT: Kelly Gleason (805) 470-3446 kgleason@atascadero.org
PROJECT ADDRESS: 11450 Viejo Camino
11505 El Camino Real Atascadero, CA 93422 APN: 045-342-009
045-342-010
PROJECT DESCRIPTION:
The project includes adoption of a Development Agreement and creek realignment concept to facilitate a future
multi-family development with up to 42 residential units on a 4.2-acre site. One of the existing properties is
currently developed with a single-family residence. The project site is designated with 1.8 acres of wetland habitat;
however, recent drought conditions and annual animal grazing have denuded the habitat vegetation. The property
contains an identified ephemeral blue-line creek (tributary of Paloma Creek) with a clearly defined flow path. Water
enters the site from an existing culvert under El Camino Real and exits through existing culverts under Viejo
Camino. The applicant proposes to realign the creek to accommodate the site development and adjust the flood
plain designation of the site. The realigned creek channel will be constructed with a naturalized slope on each
side. The project requires California Department of Fish and Wildlife, Army Corps of Engineers, Regional Water
Quality Control Board, and Federal Emergency Management Agency review.
General Plan Designation: Public Facilities (PUB)
Zoning District: Public (P)
LEAD AGENCY:
City of Atascadero
Community Development Department
6500 Palma Avenue
Atascadero, CA 93422
DOCUMENT AVAILABLE ONLINE: http://www.atascadero.org/environmentaldocs
STATE CLEARING HOUSE REVIEW: ☒ Yes NO ☐
REVIEW PERIOD BEGINS: 10/03/2024 REVIEW PERIOD ENDS: 11/04/2024
PUBLIC HEARING REQUIRED: ☐No ☒ Yes
PUBLIC NOTICE: The City of Atascadero is releasing a draft Initial Study and Mitigated Negative declaration for
review and comment to all effected agencies, organizations, and interested parties. Reviewers
should focus on the content and accuracy of the report and the potential impacts upon the
environment. The notice for this project is in compliance with the California Environmental
Quality Act (CEQA). Persons responding to this notice are urged to submit their comments in
writing. Written comments should be delivered the City (lead agency) no later than 5pm on the
date listed as “review period ends”. Submittal of written comments via email is also accepted
and should be directed to the Staff contact at the above email address. This document may be
viewed by visiting the Community Development Department, listed under the lead agency
address, or accessed via the City’s website.
46 of 52
CITY OF ATASCADERO
CITY COUNCIL STAFF REPORT Item A2
Department: Community Services
& Promotions
Date: 12/2/24
Placement: Public Hearing
TO: JAMES R. LEWIS, CITY MANAGER
FROM: TERRIE BANISH, DIRECTOR COMMUNITY SERVICES & PROMOTIONS
PREPARED BY: TERRIE BANISH, DIRECTOR COMMUNITY SERVICES &
PROMOTIONS
SUBJECT: Ordinance Increasing the Atascadero Tourism Business Improvement
District (ATBID) Assessment from 2% to 2.5%
RECOMMENDATIONS:
Council conduct the first reading of the Draft ATBID Assessment Increase Ordinance amending
Title 3, Chapter 16, section 3-16.04, changing the assessment rate under Streets and Highways
Code Section 36541(a) for lodging businesses within the Atascadero Tourism Business
Improvement District from 2% to 2.5% for the remainder of FY 2024-2025 and setting a public
hearing for the second reading of the Ordinance on December 10, 2024.
DISCUSSION:
The City of Atascadero established the Atascadero Tourism Business Improvement District (ATBID)
to levy annual assessments under the Parking and Business Improvement Area Law of 1989, by
adopting Title 3, Chapter 16 of the Atascadero Municipal Code in April 2013. The activities to be
funded by the assessments on lodging businesses within the ATBID, are tourism promotions and
marketing programs to promote the City as a tourism destination. The formation and operation
of a Tourism Business Improvement District is governed by the California Streets and Highways
Code (Section 36500 et. Seq.). The budget for the ATBID is submitted in conjunction with the City’s
annual budget.
The City Council appointed ATBID Advisory Board Members to serve at the pleasure of the
Council. The Advisory Board is made up of lodging business owners or employees, or other
representatives holding the written consent of a lodging business owner within the ATBID area.
The Streets and Highways Code requires that the Advisory Board provide a specific report to the
City Council annually for the expenditure of funds derived from the assessment paid by lodging
businesses within the City. The Advisory Board did so in May, and the Council approved the report.
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In September 2024, the ATBID Advisory Board met and approved a request to Council to increase
the ATBID assessment from two percent (2%) to two and one-half percent (2.5%) effective January
1, 2025. The purpose of this increase is to help fund improvements and facilities at the Charles
Paddock Zoo and adjacent areas with the purpose of providing for larger or more enhanced
events thus increasing hotel stays in the City.
Under the revised ATBID annual report, ATBID revenue in fiscal year 2023-24 is expected to be
approximately $419,590, exceeding projected revenue of $414,120 by $5,470. In fiscal year 2024-
25, revenue was projected to be approximately $422,400, and expenses were projected to be
$432,470. The ATBID fund balance is projected to be $749,870 on June 30, 2025. With the
proposed increase in assessment from 2% to 2.5%, the anticipated ATBID revenue will increase
by approximately $46,500 through June 30, 2025, assuming collection of such additional
assessments begins in early January 2025 following the adoption of the proposed ordinance.
At the City Council meeting on October 8, 2024, the Resolution was adopted and on October 9,
2024, a letter was mailed to each of the lodging owners noticing them of the ATBID Assessment
Increase. The change in the assessment rate requires adoption of an ordinance under Streets and
Highways Code Section 36541(a), and there are additional procedural steps needed that would not
otherwise occur with the annual adoption of the ATBID assessment. Under Government Code
Section 54954.6, the City Council must conduct both a public hearing on the proposed assessment
increase, and a separate public meeting at which the public may provide testimony regarding the
proposed increased assessment. Tonight’s meeting is the separate public meeting under Section
54954.6, and the December 10, 2024 second reading of the ordinance will comprise the public
hearing required by Section 54954.6
The new ordinance seeks to increase the assessment on lodging businesses within the Atascadero
Tourism Business Improvement District from 2% to 2.5% for the physical improvements to the
Charles Paddock Zoo and adjacent areas in Atascadero Lake Park to drive events, tourism and
additional lodging stays.
FISCAL IMPACT:
Should there be insufficient protests from the businesses to be assessed, and should the
ordinance go into effect, additional ATBID revenues in an estimated amount of $46,500 through
June 30, 2025.
ALTERNATIVE:
Council may choose to not proceed with the requested increase to the ATBID assessment, in
which case the current annual ATBID report would govern the activities to be conducted with
ATBID assessments through the end of the current fiscal year.
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REVIEWED BY OTHERS:
This report has been reviewed by the City Attorney and Deputy City Manager.
REVIEWED AND APPROVED FOR COUNCIL AGENDA
James R. Lewis, City Manager
ATTACHMENT(S):
1. Draft Ordinance Amending Section 3-16.04 of the Atascadero Municipal Code
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DRAFT ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ATASCADERO, CALIFORNIA, AMENDING SECTION 3-16.04 OF
THE ATASCADERO MUNICIPAL CODE, SETTING THE ASSESSMENT
RATE FOR THE ATASCADERO TOURISM BUSINESS IMPROVEMENT
DISTRICT
WHEREAS, the City of Atascadero (“City”) has formed the Atascadero Tourism Business
Improvement District (“ATBID”), pursuant to Section 36500 of the Streets & Highways Code of
the State of California; and
WHEREAS, the City Council has previously received an annual report pursuant to Section
36533 of said Code; and
WHEREAS, the City Council approved said report and adopted a resolution of intention
pursuant to Section 36534, setting the assessment at two percent (2%) of the rent charged by the
business per occupied room or space per night for transient occupancies; and
WHEREAS, on September 11, 2024, the ATBID Advisory Board recommended a request
to the City Council to increase the assessment from two percent (2%) to two and one-half percent
(2.5%) of the rent charged by the business per occupied room or space per night for transient
occupancies to help fund improvements and facilities at the Charles Paddock Zoo and adjacent
areas with the purpose of increasing hotel stays in the City; and
WHEREAS, pursuant to Government Code Section 54954.6, the City held a public
meeting on December 2, 2024 to allow public testimony regarding the proposed modification to
the assessment rate; and
WHEREAS, on December 10, 2024, the City Council held a public hearing on the
proposed increased assessment pursuant to Government Code Section 54954.6, and under Streets
and Highways Code Section 36525, there was no majority protest lodged against the proposed
assessment by those proposed to be assessed; and
WHEREAS, Streets and Highways Code Section 36541(a) provides that the City Council
shall modify the basis and method of levying the ATBID assessment by ordinance.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO HEREBY
ORDAINS AS FOLLOWS:
SECTION 1. Findings. The Council hereby finds and declares the following:
A. The above recitals are true and correct and are incorporated herein by reference.
SECTION 2. Approval. The City Council of the City of Atascadero adopts the proposed
text amendments to Section 3-16.04 of Atascadero Municipal Code:
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(a) Assessment. Each lodging business will collect and remit to the City an ATBID
assessment equal to 2.5% of the rent charged by the business per occupied room or space
per night for transient occupancies.
(b) New Lodging Business Subject to Assessment. Any new lodging business established
within the boundaries of the ATBID subsequent to its formation will be required to collect
and remit the applicable ATBID assessment.
(c) Exemptions. No assessment will be imposed on a lodging business for any rent paid
by a transient who is exempt by law from paying any transient occupancy taxes as provided
in Section 3-3.04 of this code.
(d) Extended Stays. No assessment will be imposed on any lodging business for any rent
paid by a person who is not deemed a "transient" (as defined in Section 3-3.02 of this code)
when such person's stay is longer than 30 consecutive calendar days.
(e) Payment of Assessments. Each lodging business must remit the assessment at the time
the business pays its transient occupancy taxes to the City and must complete and provide
such form detailing the applicable rent received and assessment as may be required by the
City. The assessment will not be included in gross room rental revenue for the purpose of
determining the amount of transient occupancy taxes due.
(f) Payment Prerequisite to Business License and Penalties and Procedures for Unpaid
Assessments.
(1) No business license or tax certificate will be issued under Chapter 5 of this title unless
the ATBID assessment payment is current.
(2) Penalties and interest will be assessed upon any unpaid assessment in manner specified
in Section 3-3.08 of this code until such time as the current assessment is paid in full;
provided, however, that if there is concurrently a delinquency of the transient occupancy
tax as well as the assessment, a single penalty of $200 will be imposed under Section 3-
3.08(a) in addition to the 10% penalty on the amount of the unpaid assessment.
(g) City Administrative Fee. The City will retain 1% of the collected assessments as and
for its administrative fees and costs.
SECTION 3. CEQA. Because of the facts set forth in Section 1, the proposed text
amendment is exempt from further environmental review under the California Environmental
Quality Act (Public Resources Code §§ 21000, et seq., “CEQA”) and CEQA Guidelines (14
California Code of Regulations §§ 15000, et seq.) because it can be seen with certainty that there
is no possibility that the enactment of this Ordinance would have a significant effect on the
environment (Pub. Resources Code § 21065; CEQA Guidelines §§ 15378(b)(5), 15061(b)(3).
SECTION 4. Interpretation. This Ordinance must be broadly construed in order to achieve
the purposes stated in this Ordinance. It is the City Council’s intent that the provisions of this Ordinance
be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth
in this Ordinance.
SECTION 5. Preservation. Repealing of any provision of the Atascadero Municipal Code
or of any previous Code Sections, does not affect any penalty, forfeiture, or liability incurred before,
or preclude prosecution and imposition of penalties for any violation occurring before this
Ordinance’s effective date. Any such repealed part will remain in full force and effect for sustaining
action or prosecuting violations occurring before the effective date of this Ordinance.
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SECTION 6. Effect of Invalidation. If this entire Ordinance or its application is deemed
invalid by a court of competent jurisdiction, any repeal or amendment of the Atascadero
Municipal Code or other City Ordinance by this Ordinance will be rendered void and cause such
previous Atascadero Municipal Code provision or other City Ordinance to remain in full force
and effect for all purposes.
SECTION 7. Severability. If any part of this Ordinance or its application is deemed
invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not
affect the effectiveness of the remaining provisions or applications and, to this end, the provisions
of this Ordinance are severable.
SECTION 8. Notice. The City Clerk is directed to certify the passage and adoption of
this Ordinance, cause it to be entered into the City of Atascadero’s book of original ordinances,
make a note of the passage and adoption in the records of this meeting and within fifteen (15)
days after the passage and adoption of this Ordinance, cause it to be published or posted in
accordance with California law.
SECTION 9. Effective Date. This Ordinance will take effect on the 30th day following
its final passage and adoption.
INTRODUCED at a special meeting of the City Council held on December 2, 2024, and
PASSED, APPROVED and ADOPTED by the City Council of the City of Atascadero, State of
California, on December 10, 2024.
CITY OF ATASCADERO:
____________________________________
Heather Moreno, Mayor
ATTEST:
_____________________________________
Lara K. Christensen, City Clerk
APPROVED AS TO FORM:
______________________________________
Dave Fleishman, City Attorney
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