H*3372 Session 110 (1993-1994)
H*3372(Rat #0248, Act #0150) General Bill, By J.J. Bailey, H. Brown,
R.C. Fulmer, S.E. Gonzales, H.M. Hallman, Harrell, Harrison, J.H. Hodges,
D.N. Holt, T.E. Huff, Jennings, Quinn, Scott, J.W. Tucker, Wilkins and
R.M. Young
Similar(S 521)
A Bill 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".
02/03/93 House Introduced and read first time HJ-14
02/03/93 House Referred to Committee on Judiciary HJ-15
04/13/93 House Committee report: Favorable with amendment
Judiciary HJ-4
04/20/93 House Amended HJ-28
04/20/93 House Read second time HJ-29
04/21/93 House Read third time and sent to Senate HJ-22
04/22/93 Senate Introduced and read first time SJ-6
04/22/93 Senate Referred to Committee on Judiciary SJ-6
05/26/93 Senate Committee report: Favorable Judiciary SJ-23
05/27/93 Senate Amended SJ-26
05/27/93 Senate Read second time SJ-34
05/27/93 Senate Unanimous consent for third reading on next
legislative day SJ-34
05/28/93 Senate Read third time and returned to House with
amendments SJ-105
06/02/93 House Concurred in Senate amendment and enrolled HJ-36
06/10/93 Ratified R 248
06/14/93 Signed By Governor
06/14/93 Effective date 06/14/93
07/07/93 Copies available
(A150, R248, H3372)
AN ACT 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:
South Carolina Local Government Development Agreement
Act
SECTION 1. Title 6 of the 1976 Code is amended by adding:
"CHAPTER 31
South Carolina Local Government
Development Agreement Act
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 cause 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 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 the appropriate local
governments and agencies to enter into development agreements with
developers, subject to the procedures and requirements of this chapter.
(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 planning for or 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 the planning for and all other activity customarily
associated with it unless otherwise specified. When appropriate to the
context, `development' refers to the planning for or 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, the governing body of a consolidated political
subdivision, or any other chief governing body of a unit of local
government, however designated.
(6) `Land development regulations' means ordinances and regulations
enacted by the appropriate governing body 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, except as provided in Section 6-31-140 (A).
(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 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 twenty-five acres or more of
highland. Development agreements involving property containing no more
than two hundred fifty acres of highland shall be for a term not to exceed
five years. Development agreements involving property containing one
thousand acres or less of highland but more than two hundred fifty acres of
highland shall be for a term not to exceed ten years. Development
agreements involving property containing two thousand acres or less of
highland but more than one thousand acres of highland shall be for a term
not to exceed twenty years. Development agreements involving property
containing more than two thousand acres may be for such term as the local
government and developer shall elect.
Section 6-31-50. (A) Before entering into a development agreement, a
local government shall conduct at least two public hearings. 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. If more than one hearing is to be held, 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.
(C) In the event that the development agreement provides that the local
government shall provide certain public facilities, the development
agreement shall provide that the delivery date of such public facilities will
be tied to defined completion percentages or other defined performance
standards to be met by the developer.
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 public 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; and
(9) a description, where appropriate, of any provisions for the
preservation and restoration of historic structures.
(B) A development agreement may provide that the entire development
or any phase of it be commenced or completed within a specified period of
time. The development agreement must provide a development schedule
including commencement dates and interim completion dates at no greater
than five year intervals; provided, however, the failure to meet a
commencement or completion date shall not, in and of itself, constitute a
material breach of the development agreement pursuant to Section 6-31-90,
but must be judged based upon the totality of the circumstances. The
development agreement may include other defined performance standards
to be met by the developer. If the developer requests a modification in the
dates as set forth in the agreement and is able to demonstrate and establish
that there is good cause to modify those dates, those dates must be modified
by the local government. A major modification of the agreement may
occur only after public notice and a public hearing by the local
government.
(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) Subject to the provisions of Section 6-31-140 and
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) Subject to the provisions of Section 6-31-140, 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 preserved by Section
6-31-140 herein or 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 a provision for requiring periodic review by the
zoning administrator, or, if the local government has no zoning
administrator, by an appropriate officer of the local government, 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 and subject to the provisions of Section 6-31-140, 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 regarding matters addressed in the
development agreement as if the property had remained in the
unincorporated territory of the county.
(B) After incorporation or annexation 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 Chapter
1 or 3 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 register 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 6-31-140. (A) The provisions of this act are not intended nor
may they be construed in any way to alter or amend in any way the rights,
duties, and privileges of suppliers of electricity or natural gas or of
municipalities with reference to the provision of electricity or gas service,
including, but not limited to, the generation, transmission, distribution, or
provision of electricity at wholesale, retail or in any other capacity.
(B) This chapter is not intended to grant to local governments or
agencies any authority over property lying beyond their corporate
limits.
Section 6-31-145. In the event that any of the obligations of the local
government in the development agreement constitute debt, the local
government shall comply at the time of the obligation to incur such debt
becomes enforceable against the local government with any applicable
constitutional and statutory procedures for the approval of this debt.
Section 6-31-150. If Section 6-31-140 or any provision therein or the
application of any provision therein is held invalid, the invalidity applies to
this chapter in its entirety, to any and all provisions of the chapter, and the
application of this chapter or any provision of this chapter, and to this end
the provisions of Section 6-31-140 of this chapter are not severable.
Section 6-31-160. Notwithstanding any other provision of law, a
development agreement adopted pursuant to this chapter must comply with
any building, housing, electrical, plumbing, and gas codes subsequently
adopted by the governing body of a municipality or county as authorized by
Chapter 9 of Title 6. Such development agreement may not include
provisions which supersede or contravene the requirements of any building,
housing, electrical, plumbing, and gas codes adopted by the governing
body of a municipality or county."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.
Approved the 14th day of June, 1993. |