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Model Development Agreement Bylaw
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Cape Cod Commission Model Bylaws and Regulations
Model Development Agreement Bylaw
Background
This model bylaw/ordinance was prepared by the Cape Cod Commission to assist Cape Cod Towns that wish to incorporate development agreement authority into their local regulations. This model was prepared in conformance with the Cape Cod Commission Act and the Code of Cape Cod Commission Regulations of General Application, as revised.
A development agreement is a consensual, binding contract between two or more parties, typically between a land owner/land developer and a government agency(ies). As empowered by the Cape Cod Commission Act, the Cape Cod Commission has the opportunity to enter into development agreements with the private sector. In addition, and provided that their Local Comprehensive Plans have been certified by the Cape Cod Commission, the Cape's fifteen towns are authorized to execute development agreements directly with a land owner or with a land owner, the Cape Cod Commission and other governmental agencies, including abutting Cape towns. The value of development agreements is found in their flexibility. They can be useful to towns as they allow the extraction of certain public benefits without running afoul of prescribed rules governing regulatory "takings" and other regulatory restrictions. They can be helpful to the land owner/developer as the executed contract provides protection against regulatory changes that may jeopardize a long term project.
In addition to having their Local Comprehensive Plans certified by the Cape Cod Commission, towns wishing to execute development agreements must adopt this bylaw, or a reasonably related substitute, as a general or zoning bylaw or ordinance. Once adopted, Towns are free to execute development agreements in accordance with the regulations noted below.
Finally, as with the execution of any contract, it is strongly recommended that no development agreement be pursued and executed without advice from town counsel.
01.0 Purpose and Intent: This bylaw/ordinance enables the Town of ____ to enter into development agreements consistent with the provisions of the Cape Cod Commission Act and Chapter D - Code of Cape Cod Commission Regulations of General Application.
Commentary: This bylaw/ordinance, once adopted, establishes the necessary regulation for the Town to enter into development agreements, provided that the Town's Local Comprehensive Plan has been, and remains certified by the Cape Cod Commission. In the event that the Cape Cod Commission decertifies a Local Comprehensive Plan for any reason, the town may no longer execute development agreements under the provisions of the Cape Cod Commission Act. Development agreements fully executed prior to decertification shall remain in full force and effect.
02.0 Definitions: In this Bylaw, the following words have the meanings indicated:
02.1 Development Agreement: A contract entered into between the Commission and or a unit of a municipality or municipalities and a holder of property development rights, the principal purpose of which is to negotiate and to establish the development regulations that will apply to the subject property during the term of the agreement and to establish the conditions to which the development will be subject including, without limitation, a schedule of impact fees.
02.2 Lead Community: The municipality where the proposed development is located. Where more than one town is a signatory on a development agreement, the Lead Community shall by the municipality having the largest land area encompassed by the proposed development, or otherwise by consensus of the municipalities. The Board of Selectmen/Town Manager or their designee shall be authorized to execute, on behalf of the Town, a development agreement.
02.3 Qualified Applicant: A person who has a majority legal or equitable interest in the real property which is the subject of the development agreement. A Qualified Applicant may be represented by an authorized agent.
03.0 Authority: Notwithstanding provisions to the contrary, the Town of _____ is hereby authorized to enter into a development agreement with a Qualified Applicant provided the following conditions are met:
03.1 The Town's Local Comprehensive Plan has been certified by the Cape Cod Commission as consistent with the Regional Policy Plan and said certification has not been revoked;
03.2 The Town has adopted, either through an amendment to its zoning bylaw/ordinance or as a general Town bylaw, the enabling regulation contained in Sections 01.0 through Section 10.0, herein.
04.0 Parties to Development Agreements:
04.1 A development agreement may be executed by and between a Qualified Applicant and
04.1.1 the Cape Cod Commission; or
04.1.2 the Cape Cod Commission and a municipality or municipalities within which the development is located; or
04.1.3 the Cape Cod Commission and a municipality or municipalities within which the development is located and with a state agency or agencies; or
04.1.4 a municipality or municipalities within which the development is located; or
04.1.5 a municipality or municipalities within which the development is located and a state agency or agencies.
Commentary: As noted previously, one of the greatest benefits of development agreements is that they are extremely flexible and can accomplish through contract what could not be accomplished through regulation alone. For example, Towns may wish to enter into multi-party development agreements with the project developer or land owner, abutting Towns, the Cape Cod Commission and relevant state agencies to ensure that the Town's goals are advanced and its resources protected. A land owner is likely interested in such a multi-party agreement as his/her motivation is the assurance that the project's build-out will not be interrupted by changes to relevant regulations in the future. In addition, and as discussed in the Commentary below, project applicants are likely to bargain for support in the permitting process, including some assurance that if they concede certain public benefits, reviewing agencies will generally grant permit approvals in the shortest period of time possible.
05.0 Negotiation and Execution of Development Agreements:
05.1 Negotiation of the elements of a development agreement between authorized parties (Section 04.0) and a Qualified Applicant shall follow all pertinent rules of due process currently required for public meetings, public hearings, and ratification of board/council decisions.
05.2 Negotiation of the elements of a development agreement between authorized parties (Section 04.0) and a Qualified Applicant shall be led by the Planning Board or its designee, and may include representatives from other municipal boards, departments and commissions where said joint participation will assist the negotiation process.
05.3 No development agreement may be executed by the Board of Selectmen/ Town Manager prior to an affirmative, majority vote by the Planning Board recommending the execution of the development agreement.
05.4 The Board of Selectmen/Town Manager may make minor amendments to the development agreement recommended by the Planning Board and execute said development agreement as amended, provided that such amendments do not alter the use, intensity or mitigation stipulations of the development agreement. However, in no instance may the Board of Selectmen/ Town Manager make substantial amendments to the development agreement recommended by the Planning Board without first receiving written concurrence from the Planning Board and Qualified Applicant that said substantial amendments are agreed to.
05.5 The Board of Selectmen/Town Manager or their designee shall be authorized to execute, on behalf of the town, a development agreement. Prior to executing said development agreement, the Board of Selectmen shall, at a public meeting, vote to authorize said execution. The Board of Selectmen/Town Manager shall, within seven (7) days of the vote authorizing the execution of the development agreement, cause said development agreement to be so executed and forward the same to the Qualified Applicant by certified, return receipt mail. Within twenty-one (21) days of the date said development agreement has been mailed by the Board of Selectmen/Town Manager, the Qualified Applicant shall execute the agreement and return either by certified mail or hand delivery, the fully executed development agreement.
Commentary: Section 05.0 outlines several important procedural requirements for the negotiation and execution of development agreements. First, the negotiation and execution of development agreements must be conducted under the same procedural due process rules governing local government's day to day activities. Second, Section 05.2 establishes the Planning Board as the town agency leading negotiations between the applicant and the town. While other municipal agencies are encouraged to participate in the negotiation process, and in fact are likely to facilitate a positive outcome for all parties involved, the Planning Board or its designee is established as the lead negotiator. Sections 05.3 and 05.4 require that no development agreement be executed by the Board of Selectmen/ Town Manager without first receiving the majority support of the Planning Board and further, that the Board of Selectmen/Town Manager are not authorized to make substantial changes to the agreement without the written consent of both the Planning Board and the applicant. Section 05.5 establishes the procedural rules required prior to, and following, the execution of the development agreement.
06.0 Elements of Development Agreements:
06.1 Proffers by a Qualified Applicant: A development agreement may include, but is not limited to, the provisions whereby a Qualified Applicant agrees to provide certain benefits which contribute to one or more of the following:
06.1.1 infrastructure;
06.1.2 public capital facilities;
06.1.3 land dedication and/ or preservation;
06.1.4 affordable housing, either on or off-site;
06.1.5 employment opportunities;
06.1.6 community facilities;
06.1.7 recreational facilities;
06.1.8 any other benefit intended to serve the proposed development, municipality or county, including site design standards to ensure preservation of community character and natural resources.
06.2 Proffers by a Lead Community: A development agreement may include the provisions whereby a Lead Community and other municipality agree to provide certain protection from future changes in applicable local regulations and assistance in streamlining the local regulatory approval process. Streamlining may include, where not in conflict with existing local, state or federal law, holding of joint hearings, coordination of permit applications and, where possible, accelerated review of permit approvals. A development agreement may also provide for extensions of time within which development approvals under state, regional and local laws may be extended to coincide with the expiration of the development agreement established in Section 09.0, below. When the Cape Cod Commission is not a party to the development agreement, the land use development rights shall not vest with respect to Cape Cod Commission regulations and designations and the property shall be subject to subsequent changes in the Commission's regulations and designations.
Commentary: Development agreements are a popular tool precisely because all the parties to the contract can achieve their relative objectives. The Lead Community can negotiate for a host of public benefits, an abutting community can ensure that its interests are protected, the Cape Cod Commission can guard against regional impacts and the land owner/developer can be assured of protection against changes to the rules affecting the project as well as be assured of a streamlined regulatory review process and extension of the time period within which the project can be built-out.
07.0 Procedural Requirements for Development Agreements Where the Cape Cod Commission is a Party to the Agreement:
07.1 Where the Cape Cod Commission is to be a party to a development agreement, a Qualified Applicant shall complete a Development Agreement Application Form and comply with the specific requirements set forth in Section 5 of Chapter D of the Code of Cape Cod Commission Regulations of General Application, as revised.
07.2 Where the Cape Cod Commission is to be a party to a development agreement, the procedural requirements established in Section 5 of Chapter D of the Code of Cape Cod Commission Regulations of General Application, as revised, shall be followed and no such development agreement shall be valid unless and until the requirements of said Section 5 of Chapter D have been complied with in full.
Commentary: Development agreements that include the Cape Cod Commission as a party must follow a set of specific rules established in Section 5 of Chapter D of the Code of Cape Cod Commission Regulations of General Application, as revised. These rules are available from the Cape Cod Commission.
08.0 Procedural Requirements for Development Agreements Where the Cape Cod Commission is Not a Party to the Agreement:
08.1 Where the Cape Cod Commission is not to be a party to a development agreement, a Qualified Applicant shall complete a Development Agreement Application Form. The Development Agreement Application Form shall include:
(a) A fully completed Development of Regional Impact Application Form, including a certified list of abutters;
(b) A legal description of the land subject to the agreement and the names of its legal and equitable owners;
(c) The proposed duration of the agreement;
(d) The development uses currently permitted on the land, and development uses proposed on the land including population densities, and building densities and height;
(e) A description of public facilities that will service the development, including who shall provide such facilities, the date any new facilities will be constructed, and a schedule to assure public facilities adequate to serve the development are available concurrent with the impacts of the development;
(f) A description of any reservation or dedication of land for public purposes;
(g) A description of all local development permits approved or needed to be approved for the development of the land;
(h) A statement indicating that the failure of the agreement to address a particular permit, condition, term, or restriction shall not relieve the Qualified Applicant of the necessity of complying with the law governing said permitting requirements, conditions, term or restriction;
(i) A Final Environmental Impact Report, certified as adequate by the Secretary of Environmental Affairs, if required under sections 61-62h of chapter 30 of the general laws;
(j) Additional data and analysis necessary to assess the impact of the proposed development, as determined by the Lead Community.
08.2 All Qualified Applicants seeking to enter into a development agreement without the Cape Cod Commission as a party shall submit the proposed development to the Cape Cod Commission for a Jurisdictional Determination. If the Cape Cod Commission determines that the proposed development is not a Development of Regional Impact, then the Qualified Applicant may pursue a development agreement without the Cape Cod Commission as a party. If the Cape Cod Commission determines that the proposed development is a Development of Regional Impact, then the Cape Cod Commission must be a party to the development agreement, in which case, the provisions of Section 5 of Chapter D of the Code of Cape Cod Commission Regulations of General Application, as revised, shall apply. If the Commission determines that the proposed development is not a Development of Regional Impact, then the provisions of Sections 08.3 through 08.10 below, shall apply.
08.3 The municipality which is a party, or when more than one municipality is a party, then the Lead Community shall assume the responsibility for overseeing the development agreement process. The Lead Community shall hold a public hearing after receipt of a fully completed application from a Qualified Applicant for consideration of a proposed development agreement. At least one public hearing shall be held in at least one of the municipality(ies) in which the proposed development is located. The public hearing regarding review of a development agreement shall not exceed ninety (90) days, unless extended by mutual agreement of the parties. Failure to close the public hearing within ninety (90) days shall not result in a constructive grant of the proposed development.
08.4 When more than one municipality is a party to the agreement, then the Lead Community shall be responsible for overseeing the development agreement process as specified in these regulations. Conflicts between the Lead Community and other municipality(ies) which are a party to the agreement shall be resolved through negotiation conducted by the relevant parties. Because a development agreement is a voluntary process, unresolved disputes may result in one or more parties making a determination not to remain a party to the proposed development agreement.
08.5 The municipality or Lead Community shall provide notice of the public hearing to consider a development agreement by publication as required by Sections 5(a) and (d) of the Cape Cod Commission Act and shall also provide notice to the Cape Cod Commission at least fourteen (14) days prior to such hearing.
08.6 The qualified applicant shall bear the cost of providing notice of the public hearing to consider the proposed development agreement.
08.7 The municipality or Lead Community shall review proposed development agreements for their consistency with the Cape Cod Commission Act and with the Regional Policy Plan and Local Comprehensive Plans. The municipality or Lead Community shall obtain a determination from the Cape Cod Commission or its designee that a proposed development agreement is consistent with the Act, the Regional Policy Plan, and Local Comprehensive Plans prior to executing a development agreement.
08.8 The municipality or Lead Community shall file its development agreement with the Clerk of the Cape Cod Commission and with the town clerk(s) of the municipality(ies) in which the development is located. Notices of development agreements shall be published in a newspaper of general circulation in the municipality(ies) in which the development is located, including a brief summary of the contents of the development agreement and a statement that copies of the development agreement are available for public inspection at the town clerk's office during normal business hours of any municipality which is a party to the agreement. In addition, the Lead Community shall provide the Cape Cod Commission with a summary of the development agreement which the Cape Cod Commission shall publish in its official publication pursuant to section 5(i) of the Cape Cod Commission Act.
08.9 Development agreements shall be issued in a form suitable for recording in the Barnstable County Registry of Deeds. The Lead Community shall record the development agreement in the Barnstable County Registry of Deeds and shall submit proof of such recording to the Town Clerk and the Cape Cod Commission Clerk within 14 days of such recording. The qualified applicant shall bear the expense of recording.
08.10 The cost for filing and processing of each development agreement shall be as established by the Board of Selectmen or Town Manager. Said filing and processing fees shall be reviewed and if appropriate, revised annually.
Commentary: Development agreements that do not include the Cape Cod Commission as a party must follow the procedural rules noted above. Please note that the establishment of fees for filing and recording development agreements is permissible provided that the fee structure be adopted as a separate resolution, independent of this bylaw/ordinance. Please also note that the Cape Cod Commission is willing to mediate negotiations between potential parties to a development agreement if asked.
09.0 Limitations on Development Agreements:
09.1 Nothing in this bylaw/ordinance may be construed to permit a municipality to require a Qualified Applicant to enter into a development agreement.
09.2. A development agreement will commence and terminate as agreed by the parties, in writing, except as otherwise provided in this Section. Where the Cape Cod Commission is not a party, a development agreement shall not exceed ten (10) years, however, provisions in the development agreement pertaining to the preservation of open space and park areas, and agreement to pay for maintenance of utilities and other infrastructure may exceed such ten year limitation. Where the Cape Cod Commission is a party, a development agreement may extend for a longer period of time than that noted above, as set forth in Section 7 of the Code of Cape Cod Commission Regulations of General Application, as revised.
09.3 A development agreement may not be used to prevent a Lead Community or other governmental agency from requiring a Qualified Applicant to comply with the laws, rules and regulations and policies enacted after the date of the development agreement, if the Lead Community or governmental agency determines that the imposition and compliance with the newly effective laws and regulations is essential to ensure the public health, safety or welfare of the residents of all or part of the jurisdiction.
Commentary: This section lists the limitations of development agreements, including the fact that a development agreement must be voluntary. A mandated development agreement, as with any contract that a party is forced or coerced to sign, violates public policy and is illegal.
10.0 Amendments and Rescission:
10.1 Where the Cape Cod Commission is not a party to the development agreement, any party to the agreement may petition the Lead Community to amend or rescind the development agreement. The petitioning party shall provide notice to all parties to the agreement and to the Cape Cod Commission of its intention to amend or rescind the agreement by providing such parties and the Cape Cod Commission with a copy of the petition seeking such amendment or rescission. When the Lead Community initiates an amendment or rescission, it shall provide notice, in writing, to all other parties to the agreement and to the Cape Cod Commission. The process for amendment or rescission shall follow the procedures for adoption outlined above.
10.2 When the Cape Cod Commission is a party to the development agreement, any other party to the development agreement may petition the Commission to amend or rescind the development agreement. Such petition shall be made in writing, on a form provided by the Cape Cod Commission. The petitioning party shall provide notice to all parties to the development agreement and to the Commission of its intention to amend or rescind the agreement by providing such parties and the Commission with a copy of the petition seeking such amendment or rescission. When the Commission initiates an amendment or rescission, it shall provide notice, in writing, to all other parties to the agreement. The process for amendment or rescission shall follow the procedures for adoption outlined above.
Commentary: Development agreements are freely amendable and can be rescinded, provided that the guidelines noted above are followed.
11.0 Enforcement:
11.1 A development agreement is a binding contract which is enforceable in law or equity by a Massachusetts court of competent jurisdiction.
Commentary: Development agreements are contracts, the breach of which gives rise to the potential for damages and other relief that a court deems appropriate. All parties to the agreement should be clear on their roles and responsibilities and advice from competent counsel should be solicited before the agreement is executed.
12.0 Severability:
0.12.1 If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections.
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