Current Status Introducing Body:House Bill Number:4721 Primary Sponsor:J. Bailey Committee Number:25 Type of Legislation:GB Subject:Local Government Development Agreement Act Residing Body:House Current Committee:Judiciary Computer Document Number:436/12214.DW Introduced Date:Apr 14, 1992 Last History Body:House Last History Date:May 21, 1992 Last History Type:Recommitted to Committee Scope of Legislation:Statewide All Sponsors:J. Bailey Wilkins Scott Gonzales Huff Rama D. Elliott Fulmer R. Young Holt Type of Legislation:General Bill
Bill Body Date Action Description CMN
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4721 House May 21, 1992 Recommitted to Committee 25
4721 House May 12, 1992 Recalled from Committee 25
4721 House Apr 15, 1992 Referred to Committee 25
4721 House Apr 15, 1992 Recalled from Committee 30
4721 House Apr 14, 1992 Introduced, read first time, 30
referred to Committee
View additional legislative information at the LPITS web site.
RECALLED
May 12, 1992
H. 4721
Introduced by REPS. J. Bailey, Wilkins, Scott, Gonzales, Huff, Rama, D. Elliott, Fulmer, R. Young and Holt
S. Printed 5/12/92--H.
Read the first time April 14, 1992.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 31 TO TITLE 6 SO AS TO ENACT THE "SOUTH CAROLINA LOCAL GOVERNMENT DEVELOPMENT AGREEMENT ACT".
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 6 of the 1976 Code is amended by adding:
Section 6-31-10. (A) This chapter may be cited as the `South Carolina Local Government Development Agreement Act'.
(B) The General Assembly finds:
(1) The lack of certainty in the approval of development can result in a waste of economic and land resources, can discourage sound capital improvement planning and financing, can raise the cost of housing and development to escalate, and can discourage commitment to comprehensive planning.
(2) Assurance to a developer that upon receipt of its development permits it may proceed in accordance with existing laws and policies, subject to the conditions of a development agreement, strengthens the public planning process, encourages sound capital improvement planning and financing, assists in assuring there are adequate capital facilities for the development, encourages private participation in comprehensive planning, reduces the economic costs of development, allows for the orderly planning of public facilities, and services and allows for the equitable allocation of the cost of public services.
(3) Because the development approval process involves the expenditure of considerable sums of money, predictability encourages the maximum efficient utilization of resources at the least economic cost to the public.
(4) Public benefits derived from development agreements may include, but are not limited to, affordable housing, design standards, and on and off-site infrastructure and other improvements. These public benefits may be negotiated in return for the vesting of development rights for a specific period.
(5) Land planning and development involve review and action by multiple governmental agencies, the use of development agreements may facilitate the cooperation and coordination of the requirements and needs of the various governmental agencies having jurisdiction over land development.
(6) Development agreements will encourage the vesting of property rights by protecting such rights from the effect of subsequently enacted local legislation or from the effects of changing policies and procedures of local government agencies which may conflict with any term or provision of the development agreement or in any way hinder, restrict, or prevent the development of the project. Development agreements will provide a reasonable certainty as to the lawful requirements that must be met in protecting vested property rights, while maintaining the authority and duty of government to enact and enforce laws and regulations which promote the public safety, health, and general welfare of the citizens of our State.
(C) It is the intent of the General Assembly to encourage a stronger commitment to comprehensive and capital facilities planning, ensure the provision of adequate public facilities for development, encourage the efficient use of resources, and reduce the economic cost of development.
(D) This intent is effected by authorizing local governments and agencies to enter into development agreements with developers, subject to the procedures and requirements of this article.
(E) This chapter must be regarded as supplemental and additional to the powers conferred upon local governments and other government agencies by other laws and must not be regarded as in derogation of any powers existing on the effective date of this chapter.
Section 6-31-20. As used in this chapter:
(1) `Comprehensive plan' means the master plan adopted pursuant to Sections 6-7-510 et seq., 5-23-490 et seq., or 4-27-600 and the official map adopted pursuant to Section 6-7-1210 et seq.
(2) `Developer' means a person, including a governmental agency, who intends to undertake any development and who has a legal or equitable interest in the property to be developed.
(3) `Development' means the carrying out of a building activity or mining operation, the making of a material change in the use or appearance of any structure or property, or the dividing of land into three or more parcels. `Development', as designated in a law or development permit, includes all other development customarily associated with it unless otherwise specified. When appropriate to the context, `development' refers to the act of developing or to the result of development. Reference to a specific operation is not intended to mean that the operation or activity, when part of other operations or activities, is not development. Reference to particular operations is not intended to limit the generality of this item.
(4) `Development permit' includes a building permit, zoning permit, subdivision approval, rezoning certification, special exception, variance, or any other official action of local government having the effect of permitting the development of property.
(5) `Governing body' means the county council of a county, the city council of a municipality, or any other chief governing body of a unit of local government, however designated.
(6) `Land development regulations' means ordinances and regulations enacted by governing bodies for the regulation of any aspect of development and includes a local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of property.
(7) `Laws' means all ordinances, resolutions, regulations, comprehensive plans, land development regulations, policies and rules adopted by a local government affecting the development of property and includes laws governing permitted uses of the property, governing density, and governing design, improvement, and construction standards and specifications.
(8) `Property' means all real property subject to land use regulation by a local government and includes the earth, water, and air, above, below, or on the surface, and includes any improvements or structures customarily regarded as a part of real property.
(9) `Local government' means any county, municipality, special district, or governmental entity of the State, county, municipality, or region established pursuant to law which exercises regulatory authority over, and grants development permits for land development or which provides public facilities.
(10) `Local planning commission' means any planning commission established pursuant to Sections 4-27-510, 5-23-410, or 6-7-320.
(11) `Person' means an individual, corporation, business or land trust, estate, trust, partnership, association, two or more persons having a joint or common interest, state agency, or any legal entity.
(12) `Public facilities' means major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities.
Section 6-31-30. A local government may establish procedures and requirements, as provided in this chapter, to consider and enter into development agreements with developers. A development agreement must be approved by the governing body of a county or municipality by the adoption of an ordinance.
Section 6-31-40. (A) A local government may enter into a development agreement with a developer for the development of property as provided in this chapter provided the property contains one hundred fifty acres or more of highland and the development will be over a time frame of five years or more.
(B) A municipality may enter into a development agreement with any developer having an interest in property outside the jurisdiction of the municipality as provided in this chapter provided the property contains one hundred fifty acres or more of highland and the development will be over a time frame of five years or more. However, the agreement may not become operative unless annexation proceedings annexing the property to the municipality are completed within the time specified by the agreement. If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement is null and void.
(C) A development agreement entered into by a municipality and a developer for property in the unincorporated area of a county to be annexed in the future by a municipality must have the approval, by written resolution, of the governing body of the county in which the property is located.
Section 6-31-50. (A) Before entering into a development agreement, a local government shall conduct at least one public hearing. At the option of the governing body, the public hearing may be held by the local planning commission.
(B) (1) Notice of intent to consider a development agreement must be advertised in a newspaper of general circulation in the county where the local government is located. The day, time, and place at which the second public hearing will be held must be announced at the first public hearing.
(2) The notice must specify the location of the property subject to the development agreement, the development uses proposed on the property, and must specify a place where a copy of the proposed development agreement can be obtained.
Section 6-31-60. (A) A development agreement must include:
(1) a legal description of the property subject to the agreement and the names of its legal and equitable property owners;
(2) the duration of the agreement. However, the parties are not precluded from extending the termination date by mutual agreement or from entering into subsequent development agreements;
(3) the development uses permitted on the property, including population densities and building intensities and height;
(4) a description of public facilities that will service the development, including who provides the facilities, the date any new facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development;
(5) a description, where appropriate, of any reservation or dedication of land for public purposes and any provisions to protect environmentally sensitive property as may be required or permitted pursuant to laws in effect at the time of entering into the development agreement;
(6) a description of all local development permits approved or needed to be approved for the development of the property together with a statement indicating that the failure of the agreement to address a particular permit, condition, term, or restriction does not relieve the developer of the necessity of complying with the law governing the permitting requirements, conditions, terms, or restrictions;
(7) a finding that the development permitted or proposed is consistent with the local government's comprehensive plan and land development regulations;
(8) a description of any conditions, terms, restrictions, or other requirements determined to be necessary by the local government for the public health, safety, or welfare of its citizens;
(9) a description, where appropriate, of any provisions for the preservation and restoration of historic structures; and
(10) any conditions, terms, restrictions, and requirements for the annexation of the property by the municipality and the phasing or timing of the annexation of the property by the municipality.
(B) A development agreement may provide that the entire development or any phase of it be commenced or completed within a specific period of time. The development agreement may provide commencement dates and completion dates. However, these dates, as may be set forth in the agreement, may be extended at the discretion of the local government at the request of the developer upon good cause shown.
(C) If more than one local government is made party to an agreement, the agreement must specify which local government is responsible for the overall administration of the development agreement.
(D) The development agreement also may cover any other matter not inconsistent with this chapter not prohibited by law.
Section 6-31-70. A development agreement and authorized development must be consistent with the local government's comprehensive plan and land development regulations.
Section 6-31-80. (A) Unless otherwise provided by the development agreement, the laws applicable to development of the property, subject to a development agreement, are those in force at the time of execution of the agreement.
(B) A local government may apply subsequently adopted laws to a development that is subject to a development agreement only if the local government has held a public hearing and determined:
(1) The laws are not in conflict with the laws governing the development agreement and do not prevent the development set forth in the development agreement;
(2) They are essential to the public health, safety, or welfare and the laws expressly state that they apply to a development that is subject to a development agreement;
(3) The laws are specifically anticipated and provided for in the development agreement;
(4) The local government demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of the development agreement which changes, if not addressed by the local government, would pose a serious threat to the public health, safety, or welfare; or
(5) The development agreement is based on substantially and materially inaccurate information supplied by the developer.
(C) This section does not abrogate any rights that may vest pursuant to common law or otherwise in the absence of a development agreement.
Section 6-31-90. (A) Procedures established pursuant to Section 6-31-40 must include provision requiring periodic review by the zoning administrator at least every twelve months, at which time the developer must be required to demonstrate good faith compliance with the terms of the development agreement.
(B) If, as a result of a periodic review, the local government finds and determines that the developer has committed a material breach of the terms or conditions of the agreement, the local government shall serve notice in writing, within a reasonable time after the periodic review, upon the developer setting forth with reasonable particularity the nature of the breach and the evidence supporting the finding and determination, and providing the developer a reasonable time in which to cure the material breach.
(C) If the developer fails to cure the material breach within the time given, then the local government unilaterally may terminate or modify the development agreement; provided, that the local government has first given the developer the opportunity:
(1) to rebut the finding and determination; or
(2) to consent to amend the development agreement to meet the concerns of the local government with respect to the findings and determinations.
Section 6-31-100. A development agreement may be amended or canceled by mutual consent of the parties to the agreement or by their successors in interest.
Section 6-31-110. (A) Except as otherwise provided in Section 6-31-130, if a newly incorporated municipality or newly annexed area comprises territory that was formerly unincorporated, any development agreement entered into by a local government before the effective date of the incorporation or annexation remains valid for the duration of the agreement, or eight years from the effective date of the incorporation or annexation, whichever is earlier. The parties to the development agreement and the municipality may agree that the development agreement remains valid for more than eight years; provided, that the longer period may not exceed fifteen years from the effective date of the incorporation or annexation. The parties to the development agreement and the municipality have the same rights and obligations with respect to each other as if the property had remained in the unincorporated territory of the county. The developer and the municipality also must comply with the provisions of Section 6-31-40(C).
(B) The municipality may modify or suspend the provisions of the development agreement if the municipality determines that the failure of the municipality to do so would place the residents of the territory subject to the development agreement, or the residents of the municipality, or both, in a condition dangerous to their health or safety, or both.
(C) This section applies to any development agreement which meets all of the following:
(1) The application for the development agreement is submitted to the local government operating within the unincorporated territory before the date that the first signature was affixed to the petition for incorporation or annexation or the adoption of an annexation resolution pursuant to Article 1 or 2 of Title 5; and
(2) The local government operating within the unincorporated territory enters into the development agreement with the developer before the date of the election on the question of incorporation or annexation, or, in the case of an annexation without an election before the date that the municipality orders the annexation.
Section 6-31-120. Within fourteen days after a local government enters into a development agreement, the developer shall record the agreement with the registrar of mesne conveyance or clerk of court in the county where the property is located. The burdens of the development agreement are binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.
Section 6-31-130. In the event state or federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one or more provisions of the development agreement, the provisions of the agreement must be modified or suspended as may be necessary to comply with the state or federal laws or regulations."
SECTION 2. This act takes effect upon approval by the Governor.