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Section 1210.05    Economic Hardship/Taking Relief Procedures: Determination of Substantial Economic Hardship

  1. Preliminary Determination of Substantial Economic Hardship
    1. Prior to the appointment of a Hearing Officer, and based on a review of documents submitted by the petitioner, the City Council, upon advice of the City Manager and the City Attorney, shall make a determination whether the petitioner has made a prima facie case that the subject property has suffered a serious diminution of value or a denial of all reasonable use that amounts to a substantial economic hardship.

    2. Such preliminary determination shall be made within thirty (30) days of the filing of a Hardship Relief Petition and submission of all information required by the City Manager and City Attorney necessary to make such determination.  Upon such showing of a prima facie case, a Hearing Officer may be appointed and a full review of the hardship petition may proceed.

    3. If upon the advice of the City Manager and the City Attorney, the City Council finds that the petitioner has not made a prima facie case of economic hardship as defined above, the petition for hardship relief shall be denied and no Hearing Officer shall be appointed.

  2. Appointment of Hearing Officer
    The City Manager shall, within thirty (30) days following a preliminary determination of hardship by the City Council, appoint a Hearing Officer to review information by the petitioner, to hold a public hearing to determine whether there is an affected property interest and whether a substantial economic hardship has been created as a result of the final action on the application, and to make a recommendation to the City Council concerning approval or denial of the Hardship Relief Petition.

  3. Qualifications of the Hearing Officer
    Every appointed Hearing Officer shall have demonstrated experience in either development, real estate finance, real estate analysis, real estate consulting, real estate appraisal, planning, real estate or zoning law, or in other real estate related disciplines sufficient to allow understanding, analysis, and application of the economic hardship standard.  Prior to appointment, the Hearing Officer shall submit a statement of no potential or actual conflict of interest.

  4. Notice of Public Hearing
    Within ten (10) days following appointment of the Hearing Officer, written notice of a public hearing shall be published and posted in accordance with Section 1203.12(a) of this Code.  The hearing shall be held within thirty (30) days following the final date of written notice, unless a reasonable extension of time is agreed to by both the City Manager and the petitioner.

  5. Rules for Conduct of the Hearing
    All public hearings conducted by the Hearing Officer to consider an economic hardship petition shall be conducted in accordance with any rules and administrative procedures adopted by the City Council to govern such actions.

  6. Application of the Economic Hardship Taking Standard
    In applying the economic hardship standard in Section 1210.03 above, the Hearing Officer shall consider among other items the following information or evidence:
    1. Any estimates from contractors, appraisers, architects, real estate analysts, qualified developers, or other competent and qualified real estate professionals concerning the feasibility, or lack of feasibility, of construction or development on the property as of the date of the application, and in the reasonably near future;

    2. Any evidence or testimony of the market value of the property both under the uses allowed by the existing regulations and any proposed use; and

    3. Any evidence or testimony concerning the value or benefit to the petitioner from the availability of opportunities to transfer density or cluster development on other remaining contiguous property owned by the petitioner eligible for such transfer as in this Code.

  7. Burden of Proof
    The petitioner shall have the burden of proving that the denial of the application created a substantial economic hardship under the standard provided in Section 1210.03 above.

  8. Findings of the Hearing Officer
    The Hearing Officer shall, on the basis of the evidence and testimony presented, make the following specific findings as part of his report and recommendations to the City Council:
    1. Whether the petitioner has complied with the requirements for presenting the information to be submitted with a Hardship Relief Petition;

    2. Whether the petitioner has a protectable interest in the property;

    3. The market value of the property considering the existing zoning regulations;

    4. The market value of the property under the proposed use;

    5. Whether there exists a feasible alternative use that could provide a reasonable economic use of the property;

    6. The market value of, or benefit accruing from opportunities to transfer density or cluster development on other remaining contiguous property owned by the petitioner eligible for such transfer as provided for in this Code;

    7. Whether it was feasible to undertake construction on or development of the property as of the date of the application, or in the reasonably near future thereafter; and

    8. Whether, in the opinion of the Hearing Officer, the denial of the application would create a substantial economic hardship as defined in Section 1210.03.

  9. Report and Recommendations of the Hearing Officer
    1. The Hearing Officer, based upon the evidence and findings, shall make a report to the City Council concerning the Hardship Relief Petition, which may include a recommendation for steps to be taken to offset any substantial economic hardship.

    2. If the Hearing Officer recommends that the City Council approve the Hardship Relief Petition, then the Hearing Officer=s report shall discuss the type and extent of incentives necessary, in the opinion of the Hearing Officer, to provide an appropriate increase in market value or other benefit or return to the petitioner sufficient to offset the substantial economic hardship.  The types of incentives that the Hearing Officer may consider include, but are not limited to, the following:
      1. A rezoning of the property to a more appropriate classification, issuance of a variance, approval of a development plan, or other appropriate land-use regulatory action that will enable the petitioner to realize a reasonable economic return on the property;
      2. An opportunity to transfer density or cluster development on other property owned by the petitioner within the same zone;
      3. A waiver of permit fees;
      4. Approval of development on some portion of the property; or
      5. Acquisition of all or a portion of the property at market value.

    3. Recommendations for transfer of density or clustering either within the boundaries of the subject property or for transfer of density from the subject property to other property owned by the petitioner shall require a written finding by the Hearing Officer that such transfer and the resulting increase in development density will be compatible with existing developments and land use patterns on properties surrounding the subject property or other property receiving the transferred density.
      1. For purposes of such Acompatibility@ finding, the Hearing Officer shall compare the petitioner's development incorporating the increased transfer density with existing development on surrounding properties, and take into consideration the following factors:
        1. Architectural character;
        2. Building size, height, bulk, mass, and scale;
        3. Building orientation;
        4. Privacy considerations in terms of privacy for prospective residents within the petitioner's development and in terms of privacy protection for adjoining land uses;
        5. Building materials;
        6. Building color; and
        7. When applicable, operations of the petitioner's development project, including but not limited to hours of operation; activities that may generate adverse impacts on adjacent land uses such as noise or glare; location of loading/delivery zones; and light intensity and hours of full illumination.

    4. The report and recommendation shall be submitted to the City Council and mailed to petitioner within thirty (30) days following the conclusion of the public hearing.

  10. City Council Review and Consideration
    1. The City Council shall review the report and recommendations of the Hearing Officer and approve or disapprove the Hardship Relief Petition within sixty (60) days following receipt of the Hearing Officer's report.  Provided, however, that the City Council may extend this period upon a finding that due to the size and complexity of the development or proposal and similar factors that additional review time is necessary.

    2. The City Council may hold a public hearing and provide notice as set forth in Section 1203.12(a) of this Code. Only new testimony and evidence shall be presented at any public hearing held by the City Council.

    3. The City Council may adopt any legally available incentive or measure reasonably necessary to offset any substantial economic hardship as defined in Section 1210.03 and may condition such incentives upon approval of specific development or site plans.

    4. The decision of the City Council shall not become final until it determines the provision of any such relief.

  11. Time Limits/Transferral of Relief or Incentives
    Any relief or incentives adopted by the City Council pursuant to this chapter may be transferred and utilized by successive owners of the property or parties in interest, but in no case shall the incentives be valid after the expiration date of a specific development approval.