§ 134-125. Administrative procedures for review of takings claims.

(a)

Filing and documentation of takings claims.

(1)

All takings claims must be filed with the takings administrator and be accompanied by such fee as the board of county commissioners, or its designee, may require.

(2)

Any person filing a takings claim must affirmatively demonstrate the validity of the claim alleged by submitting a sworn statement setting forth the facts upon which the takings claim is based. The sworn statement should include any information the applicant considers necessary. As such, a statement may contain attachments, appendices or exhibits that substantiate those facts supporting the claim. The guide for inclusion of information should be whether the information would constitute competent, substantial evidence in a quasi-judicial or judicial proceeding.

(3)

In addition to a demonstration of a potential taking claim, the applicant's evidence should also provide that information necessary to fashion a remedy, should a potential taking claim be found to exist. As part of a typical claim package, the sworn statement required by this subsection (a) should support the claim for a remedy by including any affidavits, copies of drawings, contracts, recordings, reports, letters, appraisals, or any other form of documentation or information that may apply, including, but not limited to:

a.

The transcript or record of any previous hearing where the claim is alleged to have arisen.

b.

Evidence of the expenditure of funds for land, the acquisition of which provides the basis of the taking claim.

c.

Evidence of expenditures of funds for planning, engineering, environmental, and other consultants for site plan preparation, site improvement or other preparation, or construction.

d.

Evidence of expenditures for construction of actual buildings in accordance with an existing or prior development order or development permit issued by the county.

e.

Any relevant donations or dedications of real property or any other property interest made to the county for the following purposes:

1.

Roads or other transportation facilities;

2.

Access (ingress/egress) or rights-of-way;

3.

Drainage easements;

4.

Parks or recreation/open space;

5.

Retention/detention areas;

6.

Conservation areas;

7.

Any other purpose consistent with the provision of services for any element of the county plan; which are either on- or off-site with respect to the property involved in the claim.

f.

Evidence of costs of construction of any roads, sidewalks, stormwater detention/retention or drainage facilities, sewer or water facilities, parks, etc., which would be either on- or off-site, and part of a plan permitting development on the subject property.

g.

Other development orders or development permits issued by the county with respect to the property involved in the takings claim, and any related federal, state or regional permits.

(4)

As part of a sworn statement, the claimant is required to provide a list of the names and addresses of any witnesses which the claimant shall present in support of the claim and a summary of the testimony of each witness.

(5)

Additionally, the claimant should consider submitting as part of its sworn statement information which:

a.

Demonstrates that the claimant has acted in good faith and without knowledge that changes to applicable ordinances, resolutions, or regulations might affect his development expectations.

In establishing "good faith," the claimant should consider submitting information which affirmatively states that the claimant:

1.

Has not waived, abandoned, or substantially deviated from related prior county development approvals;

2.

Has not, by act or failure to act, consented or assented to changes in related prior county development approvals;

3.

Has, at all times relevant, conformed with the applicable laws, rules, and regulations of the state and the county.

b.

If applicable, details the specific governmental act, ordinance, resolution, regulation or comprehensive plan provision that the claimant believes gave rise to the takings claim.

(6)

The signature of the claimant, or any attorney for the claimant, upon any document submitted as part of a sworn statement shall constitute certification that the person signing has read the document and that to the best of the person's knowledge it is supported by good grounds and that it has not been submitted solely for purposes of delay. Further, the claimant and any attorney for the claimant shall have a continuing obligation to amend or correct any document submitted which is incorrect because of changed circumstances or was found to have been incorrect.

(7)

If the board of county commissioners makes a determination and finding that the sworn statement submitted as part of a taking claim is:

a.

Based on facts that the claimant or any attorney for the claimant knew or should have known was not correct or true; or

b.

Frivolous or filed solely for the purposes of delay; then the board of county commissioners, in addition to the penalties set forth in section 134-8, may pursue any remedy or impose any penalty provided for by law or ordinance.

(b)

Review, hearing and standards for takings claims.

(1)

Within ten working days of filing a sworn statement (and any accompanying information) as part of a takings claim, the takings administrator or his designee shall determine whether the statement received is complete. If the statement is deficient, then the claimant shall be notified, in writing, of the deficiencies.

(2)

Once a statement is complete, or the claimant has informed the takings administrator that no further information is forthcoming, the takings administrator or his designee shall timely review the application, provide requisite public notice, and schedule a public hearing before the board of county commissioners on the takings claim.

(3)

At the scheduled public hearing, sworn testimony and evidence which meets the criteria of subsection (a) of this section should be offered into the record to support the claimant's position. The takings administrator, county staff and county attorney personnel may offer testimony and evidence relevant to the hearing.

(4)

No later than 30 days after the board of county commissioners closes the public hearing, the board shall make and report a conclusive, final decision based upon the record presented. Nothing in this subsection shall prevent the board's decision to continue the hearing to give staff the opportunity to prepare alternatives, in consultation with the applicant, or to give staff or the applicant the opportunity to prepare responses to questions which the board may have regarding information presented at the hearing.

(5)

Because the law in the area of takings is constantly changing in both substance and interpretation, the board of county commissioners shall be guided by advice from the office of the county attorney regarding interpretations of appropriate considerations in its deliberations. In evaluating whether a valid taking claim is presented by the record, and what the measure of relief to be provided to the claimant should be, if any, the following factors shall be taken into consideration:

a.

Whether and to what degree the challenged regulation or combination of regulations has resulted in any physical invasion of the claimant's property by the county or others;

b.

Whether the challenged regulation, or combination of regulations, has resulted in a denial of all beneficial use of the claimant's property by the county and, if so, whether the logically antecedent inquiry into the nature of the owner's estate shows that the prescribed use interests were not part of his title to begin with;

c.

Whether and to what degree the claimant's expectations of use were investment-backed;

d.

Whether and to what degree the claimant's expectations of use were reasonable in light of the following circumstances as they may apply:

1.

The logically antecedent inquiry into the nature of the owner's estate shows that the prescribed use interests were not part of his title to begin with;

2.

The existing land use and zoning classification of the subject and nearby properties, as may be relevant;

3.

The development history of the subject property and nearby properties;

4.

The suitability of the subject property for the intended or challenged development or use;

e.

Whether and to what degree the intended or challenged development or use has or would cause any diminution in value of the subject properties, or any relevant properties arising from section 134-124(a)(3);

f.

Whether and to what degree any such diminution of property values has promoted the public health, safety, morals, aesthetics or general welfare, and was consistent with the county plan; and

g.

To what extent the public would gain from the intended or challenged development or use compared to any resulting hardship upon the claimant alone.

(6)

Any relief to be provided a claimant shall be limited to the minimum necessary to provide a reasonable, beneficial use of the subject property and may be in the form of alternative uses of additional development intensity which may be severed and transferred, or other such nonmonetary relief as is deemed appropriate by the board of county commissioners. Any relief granted shall be presumed abandoned and expire if not utilized for its proper purpose within one year from the date it was granted. Subsequent applications under this article may review the expired decision for possible reinstatement, with or without modification as deemed necessary under then existing conditions.

(c)

Appeal of takings claim. Any claimant aggrieved by the final decision of the board of county commissioners may seek judicial review of the board's decision by timely filing an action in a court of competent jurisdiction.

(Ord. No. 18-36 , § 3(Att. A), 10-23-18)