City attorney outlines limits and risks of development agreements; urges specific record-building

Brian Jones, Provo City Attorney, gave an extended presentation explaining what development agreements are, why Provo uses them and when they can create legal risk.

Jones said state law permits municipalities to enter written development agreements that contain terms needed to accomplish land-use purposes but also imposes limits. He explained development agreements historically addressed multi-phase projects and vesting concerns — guaranteeing rights for future phases — and warned agreements should not be used to circumvent exaction law or to grant spot zoning privileges that conflict with code.

Jones reviewed court standards for exactions and vesting, citing the need for reasonable nexus and proportionality between required developer contributions and project impacts. He warned that using development agreements to impose requirements that the code could not lawfully impose risks legal challenge, and he emphasized that a development agreement must be voluntary: “the development agreement is voluntary,” Jones said, explaining the city must document that the developer proffered the agreement rather than the city coercing terms.

Practically, Jones advised the planning commission to articulate specific concerns in its reports of action and to prefer recommending denial “unless your concern is addressed” rather than recommending approval subject to future negotiation. He argued that recommending denial unless a concern is resolved builds a clearer record that the project would not be approved absent those assurances and therefore supports the voluntary nature of any later development agreement.

Jones outlined common uses in Provo: attaching a project plan exhibit that limits what may be built; capping density within an otherwise higher-permitted zone; and guaranteeing that a particular design or program will be built. He said Provo’s template often ties development agreement obligations to recorded exhibits and deed restrictions to prevent later change without council review.

Council members and commissioners discussed alternatives: many agreed that when a permanent citywide policy is appropriate (for example, a buffer along the river), the preferable remedy is to amend the zoning code rather than rely repeatedly on ad hoc development agreements. Jones echoed that code changes are the superior long-term solution where politically and administratively feasible.

The session also covered process cautions: commissioners should avoid ex parte private meetings with applicants; the planning commission should not be directed by the council on how to frame recommendations; and where a developer has already proffered a development agreement, that fact should be made explicit in the recommendation and preserved in the record.