H 4721 Session 109 (1991-1992)
H 4721 General Bill, By J.J. Bailey, Elliott, R.C. Fulmer, S.E. Gonzales,
D.N. Holt, T.E. Huff, J. Rama, Scott, Wilkins and R.M. Young
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".
04/14/92 House Introduced and read first time HJ-8
04/14/92 House Referred to Committee on Ways and Means HJ-8
04/15/92 House Recalled from Committee on Ways and Means HJ-42
04/15/92 House Referred to Committee on Judiciary HJ-42
05/12/92 House Recalled from Committee on Judiciary HJ-31
05/21/92 House Recommitted to Committee on Judiciary HJ-58
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.
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".
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:
"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 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.
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