Development agreements have become a popular tool for California municipalities regulating commercial cannabis activities. We’ve talked a bit about development agreements in the cannabis context here. In a nutshell, a development agreement is a contract between a municipality and developer that freezes applicable rules, regulations, and policies pertaining to a property at the time of execution. Our California cannabis real estate and land use lawyers have come across quite a few of them lately. Unfortunately, many times local jurisdictions are misusing them at the industry’s expense.
Development agreement laws were enacted to provide assurances to developers faced with uncertainty in government approval processes for complex and long-term development projects. A development agreement should provide developers with assurances that the developer will see a return on investment by providing vested rights to engage in a particular use on a property. The rights are locked in so that if local laws change in the future (e.g., the voters or legislative body prohibit a particular use), the uses permitted in the agreement can continue for the remaining term of the agreement.
The scant authority dealing with development agreements focuses on the broad purpose of the statute to provide assurances to developers as soon as project commitments must be made. Santa Margarita Area Residents Together v. San Luis Obispo County (2000) 84 Cal.App.4th 221, 230.
Development agreements allow municipalities to impose fees without having to deal with the uncertainty and expense of putting the matter before voters (as required with the imposition of a tax), and to negotiate community benefits and public improvements to be provided by developers. They also put municipalities in privity of contract with developers, providing an additional degree of control and remedies for each party that would not otherwise exist.
In the context of cannabis, we are seeing a perversion of the intent of California’s development agreement statutes. Many municipalities require development agreements for commercial cannabis activity regardless of whether there is actual land development involved. The terms are incredibly short (often only 1 to 5 years), the fees are substantial, and developers are not expressly provided with vested rights to operate. In other words, most of the cannabis-related development agreements fail to provide developers with assurances that they will see a return on their investment.
Further, the vast majority of municipalities do not allow any negotiation of commercial cannabis development agreements, which calls into question the validity of any associated fees. After all, the justification for exempting development agreements from the constitutional and statutory requirements applicable to municipal fees and taxes is that the terms are bargained for between the parties.
Stay tuned for the next two parts of this series on demystifying development agreements. In part two, I’ll break down the basics of development agreement laws, and what they mean for the marijuana industry. In part three, I’ll cover some key terms to fight for in development agreement negotiations related to California cannabis use.
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