12.1.1.
The purpose of these provisions is to ensure that a denial of an
Oil and Gas Overlay Zoning District Classification application or
of a subsequent Special Use and Development Permit application does
not result in an unconstitutional deprivation of private property.
12.1.2.
The intent of the Board is to provide through this Section an administrative
variance process to resolve any claims that the application of this
Ordinance has had an unconstitutional effect on property. This Section
is not intended to provide relief related to regulations or actions
promulgated or undertaken by agencies other than the County. The provisions
of this Section are not intended to, nor do they, create a judicial
cause of action.
12.2.1.
Generally.
An application for a beneficial use and or
value determination shall be made to the County by filing an application
and paying an application fee as established by the Board within one
year subsequent to the Board’s final development order with
respect to denying or modifying an application for development approval
of an Oil and Gas Overlay Zoning District Classification, or within
one year from the denial or modification of an application for Special
Use and Development Permit, if an Oil and Gas Overlay Zoning District
Classification has previously be [been] approved.
12.2.2.
Contents of application.
The application shall be submitted
in a form established by the Administrator and shall include the following:
12.2.2.1.
Contact information.
The name, address, and telephone
number of the applicant; the name, address and telephone number of
the owner of the subsurface mineral estate and/or the oil and gas
lessee, if applicable.
12.2.2.2.
Legal description.
A legal description and the
real estate or parcel number for the subsurface and surface property
in the same ownership.
12.2.2.3.
Letter of agency.
If a person other than the applicant
is requesting relief pursuant to this division, a notarized letter
of agency from the owner of the subsurface mineral estate and/or oil
and gas lessee (“Owner”) authorizing the person to represent
them with respect to the application. Except as specifically provided
herein, the owner or lessee will be bound by the representations,
obligations, and agreements made by the owner’s or lessee’s
agent in the course of the beneficial use and value determination
process. The term “applicant” as used in this division
refers to the owner or lessee, or the owner’s and lessee’s
agent, as applicable.
12.2.2.4.
Date of acquisition, offers to purchase, and attempts to sell.
Documentation of the date of acquisition of all land acquired
in the same ownership, the price incurred to acquire the property,
the date and amount of any offers by any person, corporation, governmental
entity, or association to acquire the property, and any attempts by
the owner or lessee to sell or assign the subsurface mineral estate
or oil and gas lease, or to purchase or sell transferable development
rights.
12.2.2.5.
Land development code regulation or General Plan policy.
A statement describing the land development code regulation,
general or area plan policy, or other final developmental order or
action of the County, which the applicant believes necessitates relief
under this Section, including the effective date of the land development
code regulation or general or area plan policy and/or the date of
the final action by the County related to the property. The application
shall identify the land development code regulations or general plan
or area plan policies of the County by section and number.
12.2.2.6.
Description of land.
A description of the property’s
physical and environmental features, total acreage, and use presently
at the time of acquisition, and upon the effective date of the development
order, the applicant asserts requires relief under this section.
12.2.2.7.
Improvements to land.
Evidence of any investments
made to improve the property, the date the improvements were made,
and the cost of the improvements.
12.2.2.8.
Description of allowable uses.
A description of
the type and extent of land uses allowed on the surface and subsurface
of property, from the time the applicant acquired the property until
the date of application under this section, including allowable density,
permitted and special uses, number and location of oil and gas wells,
transfer of development rights permitted, opens space ratios, and
other factors affecting the property’s development potential.
12.2.2.9.
Requested relief.
A statement regarding the form
of relief requested by the owner, pursuant to Section 9.6.2.7, Granting
of Relief [sic].
12.2.2.10.
Maps.
Maps shall be included in the application,
which show the property presently, at the time of acquisition, and
upon the effective date of the development order of the County the
applicant asserts requires relief under this Section. Maps shall indicate
the land use designation, future land use designation, aerial photography,
and environmental conditions and habitat, cultural, historical or
archaeological artifacts or sites on the property.
12.2.2.11.
Previous development applications and appeals.
A description of all efforts to seek approval to develop the property
for oil and gas exploration, including date of application; name of
the local, state, or federal agency; nature of approval, denial, or
appeal sought; disposition; and the date of disposition.
12.2.2.12.
Agency approvals.
Evidence of whether the applicant
has received necessary approvals from governmental agencies other
than the County, which are required in order to undertake development
of the property for oil and gas exploration and drilling.
12.2.2.13.
Signature of owner and agent.
The signature of
landowner(s) and agent(s), attesting to the accuracy of the statements
and representations made in the application.
12.2.2.14.
Additional materials.
Appraisals, studies, or
evidence supporting the applicant’s contention that relief under
this division is appropriate, including appraisals related to any
alleged diminution of all or substantially all fair market value of
the property.
12.2.2.15.
The Board’s development orders and the findings on all
of the assessments, plans, reports and studies required for the application
for an Oil and Gas Overlay Zoning District Classification, or for
the application for the Special Use and Development Permit.
12.3.1.
The owner or lessee and the owner’s or lessee’s representative
shall file a memorandum setting forth the legal basis asserted for
relief under this Section.
12.3.2.
The signature upon the application by the owner or lessee and the
owner’s or lessee’s representative shall constitute a
certification that the owner’s or lessee’s representative
have undertaken due diligence in the filing of the application, that
to the best of their joint and individual knowledge the application
is supported by good grounds under applicable laws, and that the application
has been filed in good faith, consistent with the purpose and intent
of this Section.
12.3.3.
The owner or lessee and owner’s or lessee’s representative
shall have a continuing obligation throughout the proceedings to correct
any statement or representation found to have been incorrect when
made or which becomes incorrect by virtue of changes [changed] circumstances.
12.3.4.
If a claim for relief pursuant to this Section is based upon facts
the owner or lessee or the owner’s or lessee’s representative
knew or should have known were not correct or upon assertions of law
that were frivolous, the hearing officer shall dismiss the application.
Within fifteen (15) calendar days of accepting the application,
the Administrator shall determine if the application is complete and
includes the materials and information listed in subsection (b)(1)-(14)
[sections 12.2.2.1.–12.2.2.14.] above. The Hearing Officer may
require the owner or lessee to provide additional information in order
to hold a public hearing under this section and may conduct a public
hearing on whether the application should be dismissed for failure
to include information necessary to make a recommendation, based on
the standards set forth in this division.
12.4.1.
Determined insufficient.
If the Administrator determines
the application is not complete, a written notice shall be mailed
to the applicant specifying the application’s deficiencies.
No further action shall be taken on the application until the deficiencies
are remedied. If the applicant fails to correct the deficiencies within
thirty (30) calendar days of a notice of deficiencies, the application
shall be considered withdrawn.
12.4.2.
Determined sufficient.
When the application is determined
to be complete, the Administrator shall notify the applicant in writing
and, within thirty (30) calendar days, forward the application to
the Hearing Officer to set a hearing date.
12.5.1.
Designation of Hearing Officer.
The Board of County
Commissioners shall designate a panel of hearing officers. The Board
of County Commissioners shall select a Hearing Officer from that panel
for the beneficial use or value determination process.
12.5.2.
Establishment of date for hearing and notice.
The Hearing
Officer shall schedule and hold a hearing on a beneficial use or value
determination application within sixty (60) calendar days of receipt
of the complete application from the Administrator.
12.5.3.
Hearing.
At the hearing, the mineral estate owner or
oil or gas lessee or owner’s or lessee’s representative
shall present the owner’s or lessee’s case and the County
Attorney or County Attorney’s representative shall present the
County’s case. The Hearing Officer may accept briefs, evidence,
reports, or proposed recommendations from the parties. Interested
parties other than the owner or lessee shall be permitted to intervene
in the proceedings provided: the intervenor shall be an organization
or association registered to receive notice under this Ordinance;
any public or governmental agency; or any owner of a surface or subsurface
estate or lessee of an oil and gas lease within one (1) mile of the
site perimeter, or any person aggrieved or with standing to intervene.
12.5.4.
Findings of the Hearing Officer.
Within sixty (60) calendar
days of the close of the hearing, the Hearing Officer shall prepare
and transmit in writing to the Administrator, County Attorney, owner,
lessee, and owner’s and lessee’s representatives, and
all other represented parties, a summary of all the evidence, testimonial
or documentary submitted, rulings on objections to evidence, and a
written recommendation regarding the relief to be granted based on
the evidence submitted and the standards set forth in Section 12.7
[sic].
12.5.4.1.
If the Hearing Officer’s recommendation is that relief is not
appropriate, the recommendation shall specify the factual and legal
basis for the recommendation.
12.5.4.2.
If the Hearing Officer’s recommendation is that some form of
relief is appropriate, the recommendation shall:
(a)
Recommend a form of relief, pursuant to Section 12.9 (“Granting
of Relief”).
(b)
Indicate the basis for the recommendation, including, as applicable:
(1)
identification of the County land development code regulation,
general or area plan policy, development order or other action that
resulted in the recommendation for relief;
(2)
the date the land development code regulation, general or area
plan policy, or other final action of the County affected the property
so as to necessitate relief; and
(3)
determine whether the oil and gas project proposed for the site,
taking into account all of the findings and development order of the
Board, constitutes an as applied public nuisance or creates adverse
public nuisance effects or impacts, for which no relief can be recommended.
Based on the recommendations of the Hearing Officer, the Administrator
shall prepare the item for consideration by the Board. Within thirty
(30) calendar days of receipt of the recommendations of the Hearing
Officer, the Administrator shall forward the Hearing Officer’s
recommendation to the Board to set a public hearing on the matter.
Following receipt of the matter from the Administrator, the
Board shall within thirty (30) days set the matter for a public hearing.
The County shall provide the same notice as required on the Application
for the Oil and Gas Overlay Zoning District Classification and the
applicant and any other interested party shall be provided an opportunity
to be heard prior to the decision of the Board. The recommendation
of the Hearing Officer is not binding on the Board. At the hearing,
the Board shall grant a development order by resolution, approving,
modifying, reversing, or approving with conditions, the recommendations
of the Hearing Officer, based on the standards of this Section. The
development order shall:
(a)
state a date, if any, upon which a development order granting relief
will cease to be in effect;
(b)
state that neither the Board’s development order nor any process
or evidence constitutes an admission of a taking of property, or other
unconstitutional deprivation;
(c)
direct County staff to undertake any additional steps necessary to
implement the development order; and
(d)
address other matters necessary to implement the purpose and intent
of this section.
12.8.1.
Standard.
In furtherance of the purpose and intent of
this section relief under this section may be granted where a court
of competent jurisdiction likely would determine that a final action
by the County has caused a regulatory taking of property and a judicial
finding of liability would not be precluded by a cognizable defense,
including public nuisance, lack of distinct reasonable investment-backed
expectations, failure to establish all or substantially all loss of
economic use and value of the property in the same ownership taking
into account the available property interest in transfers of development
rights granted by this Ordinance, whether utilized or not, statutes
of limitation, laches, or other preclusions to relief. Whether such
liability, at the time of application under this section is likely
to be established by a court shall be determined based on applicable
statutory and case law at the time an application is considered under
this Section.
12.8.2.
Burden.
The applicant shall have the burden of showing
that relief under this Section is appropriate.
12.9.1.
General.
If the Board determines that relief is appropriate
under this division, relief may be granted, as provided in this section
and consistent with the general plan, or applicable area plan.
12.9.2.
Forms of relief.
In order to avoid an unconstitutional
result and to provide a owner with an economically viable use and
value of property pursuant to this section, the Hearing Officer may
recommend and the Board may allow for the minimum additional use(s),
density, or relief necessary to alleviate any unconstitutional taking
or deprivation as set forth in Section 12.7, including:
12.9.2.1.
Eligibility for real property tax relief, reduction of property assessment
or adequate public facility incentives;
12.9.2.2.
Authorization of additional oil or gas well sites or further collocation
of oil and gas drill sites;
12.9.2.3.
Granting of an Overlay Zoning Oil and Gas District Classification
for a future time or phase, especially where adequacy of public facilities
and services require[d] are not fully available for the entire project
at the time of Overlay Zone approval;
12.9.2.4.
Transferable development rights (TDRs);
12.9.2.5.
Eligibility for donation of the property;
12.9.2.6.
Repeal or amendment of the land development code regulation or general
plan or area plan policy or development order applied to the subject
property;
12.9.2.7.
Any other economically beneficial use or value of the property or
relief the Board determines appropriate; or
12.9.2.8.
Any combination of the above.
12.9.3.
Minimum increase.
Relief granted pursuant to this Section
shall be the minimum necessary to comply with the law.
