(b) For purposes of this section, a breach is material if, on a parcel under contract, both of the following conditions are met:

1. (1) A commercial, industrial, or residential building is constructed that is not allowed by this chapter or the contract, local uniform rules or ordinances consistent with the provisions of this chapter, and that is not related to an agricultural use or compatible use.

2. (2) The total area of all of the building or buildings likely causing the breach exceeds 2,500 square feet for either of the following:

   1. (A) All property subject to any contract or all contiguous property subject to a contract or contracts owned by the same landowner or landowners on January 1, 2004.

   2. (B) All property subject to a contract entered into after January 1, 2004, covering property not subject to a contract on January 1, 2004.

      For purposes of this subdivision any additional parcels not specified in the legal description that accompanied the contract, as it existed prior to January 1, 2003, including any parcel created or recognized within an existing contract by subdivision, deed, partition, or, pursuant to Section 66499.35, by certificate of compliance, shall not increase the limitation of this subdivision.

(i) If the city or county determines that a material breach exists, the city or county shall do one of the following:

1. (1) Order the landowner to eliminate the conditions that resulted in the material breach within 60 days.

2. (2) Assess the monetary penalty pursuant to subdivision (j) and terminate the contract on that portion of the contracted parcel that has been made incompatible by the material breach.

   If the landowner disagrees with the determination, he or she may pursue any other legal remedy that is available.

(k) In determining the amount of a lesser penalty, the negotiators shall consider:

1. (1) The nature, circumstances, extent, and gravity of the material breach.
2. (2) Whether the landowner’s actions were willful, knowing, or negligent with respect to the material breach.
3. (3) The landowner’s culpability in contributing to the material breach and whether the actions of prior landowners subject to the contract contributed to the material breach.
4. (4) Whether the actions of the city or county contributed to the material breach.
5. (5) Whether the landowner notified the city or county that the landowner would eliminate the conditions that resulted in the material breach within 30 days, but failed to do so.
6. (6) The willingness of the landowner to rapidly resolve the issue of the material breach.
7. (7) Any other mitigating or aggravating factors that justice may require.

(n) The assessment of a monetary penalty pursuant to subdivision (i) shall be secured by a lien payable to the county treasurer of the county within which the property is located, in the amount assessed pursuant to subdivision (j) or (k). Once properly recorded and indexed, the lien shall have the force, effect, and priority of a judgment lien. The lien document shall provide both of the following:

1. (1) The name of the real property owner of record and shall contain either the legal description or the assessor’s parcel number of the real property to which the lien attaches.
2. (2) A direct telephone number and address that interested parties may contact to determine the final amount of any applicable assessments and penalties owing on the lien pursuant to this section.

(r)

1. (1) The department may carry out the responsibilities of a city or county under this section if any of the following occurs:

   1. (A) The city or county fails to determine whether there is a material breach within 210 days of the discovery of the breach.
   2. (B) The city or county fails to complete the requirements of this section within 180 days of the determination that a material breach exists.
2. (2) The city or county may request in writing to the department, the department’s approval for an extension of time for the city or county to act and the reasons for the extension. Approval may not be unreasonably withheld by the department.
3. (3) The department shall notify the city or county 30 days prior to its exercise of any responsibility under this subdivision.
4. (4) This section shall not be construed to limit the authority of the Secretary of the Resources Agency under Section 16146 or 16147.

(s)

1. (1) This section does not apply to any of the following:

   1. (A) A building constructed prior to January 1, 2004, or a building for which a permit was issued by a city or county prior to January 1, 2004.
   2. (B) A building that was not a material breach at the time of construction but became a material breach because of a change in law or ordinance.
   3. (C) A building owned by the state.

2. (2) Subject to paragraphs (4) and (5), this section does not apply when a board or council cancels a contract pursuant to Article 5 (commencing with Section 51280), or a city terminates a contract pursuant to Section 51243.5, or when a public agency, as defined by subdivision (a) of Section 51291, acquires land subject to contract by, or in lieu of, eminent domain pursuant to Article 6 (commencing with Section 51290) unless either of the following occurs:

   1. (A) The action terminating the contract is rescinded.
   2. (B) A court determines that the cancellation or termination was not properly executed pursuant to this chapter, or that the land continues to be subject to the contract.
3. (3) On the motion of any party with standing to bring an action for breach, any court hearing an action challenging the termination of a contract entered into under this chapter shall consolidate any action for breach, including the remedies for material breach available pursuant to this section.

4. (4) Paragraph (2) shall not be applicable for a cancellation or termination occurring after January 1, 2004, unless the affected landowner provides to the administering board or council and to the department, within 30 days after the cancellation or termination, a notarized statement, in a form acceptable to the department, signed under penalty of perjury and filed with the county recorder, acknowledging that the breach provisions of this section may apply if any of the following conditions are met:

   1. (A) The action by the local government is rescinded.
   2. (B) A court permanently enjoins, voids, or rescinds the cancellation or termination.
   3. (C) For any other reason, the land continues to be subject to the contract.
5. (5) Paragraph (2) does not apply for a cancellation or termination occurring before January 1, 2004, unless the landowner provides the statement required in paragraph (4) prior to the approval of a building permit necessary for the construction of a commercial, industrial, or residential building.