S 521 Session 110 (1993-1994)
S 0521 General Bill, By McConnell, Courtney, Ford, Land, Martin, Passailaigue and
G. Smith
Similar(H 3372)
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".
03/09/93 Senate Introduced and read first time SJ-8
03/09/93 Senate Referred to Committee on Judiciary SJ-8
04/07/93 Senate Committee report: Favorable with amendment
Judiciary SJ-21
04/08/93 Senate Amended SJ-80
04/08/93 Senate Read second time SJ-81
04/08/93 Senate Ordered to third reading with notice of
amendments SJ-81
05/05/93 Senate Debate adjourned SJ-17
05/25/93 Senate Debate interrupted SJ-36
05/27/93 Senate Amended SJ-22
05/27/93 Senate Read third time and sent to House SJ-25
05/31/93 House Introduced and read first time HJ-5
05/31/93 House Referred to Committee on Judiciary HJ-5
AS PASSED BY THE SENATE
May 27, 1993
S. 521
Introduced by SENATORS McConnell, Ford, Courtney, Greg Smith,
Martin, Passailaigue and Land
S. Printed 5/27/93--S.
Read the first time March 9, 1993.
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".
Amend Title To Conform
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 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 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 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 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 act in its entirety, to any and all provisions of the act, and
the application of this act or any provision of this act, and to this end the
provisions of Section 6-31-140 of this act 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."
SECTION 2. This act takes effect upon approval by the Governor.
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