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.