The purpose of division 16-80 is to ensure that the town applies its general plan, ordinances, resolutions, and other measures that regulate land use for the protection and promotion of the public health, safety, general welfare, and the environment (collectively, "land use regulations") in a manner that treats property owners fairly and in a manner consistent with state and federal law. Division 16-80 authorizes the town to grant an economic exception relaxing the application of the town's land use regulations to the extent necessary to avoid an unconstitutional taking in compliance with the United States or California Constitutions.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

If any applicant believes that strict application of the town's land use regulations would not permit an economically viable use of his or her property, or would otherwise effect an unconstitutional taking of property, the applicant may apply for an economic exception. The application for an economic exception shall include the entirety of all lots that are geographically contiguous in which the applicant holds an interest at the time of the application.

B.

The applicant shall be required to fund all costs associated with independent peer review studies and reports commissioned by the town of any information submitted by the applicant, or the independent preparation of such information by the town or its consultants, and may be required to submit an advance deposit upon application to cover such costs.

C.

Any applicant that does not submit a request for an economic exception as set forth in section 16-80.030 (time for filing application) shall be deemed to have waived any objections based on the takings clauses of the United States and California Constitutions to the strict application of the town's land use regulations, including, without limitation, any condition of approval, mitigation measure, or other measure imposed to implement such regulations.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

Economic exception requests should be filed as early as possible in the planning and/or permit process.

1.

If the economic exception request is based on the facial application of the town's land use regulations, the applicant shall apply for the economic exception before or in conjunction with the first land development application submitted for the property.

2.

The applicant shall apply for an economic exception in conjunction with the first land development application submitted for the property if it is reasonably foreseeable that the town's land use regulations will require a denial or a condition of approval, mitigation measure, or other measure to be imposed which the applicant believes will effect an unconstitutional taking of property.

B.

Notwithstanding subsection A.1 above, if the council is the review authority for the land development application and the applicant's economic exception request is based on a denial or on a condition of approval, mitigation measure, or other measure imposed by the council, the applicant shall submit the application for an economic exception within thirty days of the council's action on the land development application. The council shall retain jurisdiction over the project after its initial decision on the application for the sole purpose of considering a request for an economic exception, which jurisdiction shall expire at the end of the thirty-day period if no such request is filed. This subsection shall not apply if the denial, condition of approval, mitigation measure, or other measure was reasonably foreseeable when the applicant filed his first land development application for the property.

C.

Notwithstanding Subsection A.1 above, if the commission, board, or town official is the review authority for the land development application and the applicant's economic exception request is based on a denial or on a condition of approval, mitigation measure, or other measure imposed by the commission, board, or town official, the applicant shall submit the application for an economic exception within ten days of the review authority's action on the land development application. The request for an economic exception shall be submitted in conjunction with an appeal filed in compliance with the town's regular appeal process for contesting zoning permit decisions as set forth in division 16-66 (appeals). Council will be the review authority for the appeal as referenced in section 16-80.050 (economically viable use determination-economic exception). The applicant may submit supporting information for the economic exception request for a period of thirty days following the decision being appealed. Scheduling of the council hearing on the appeal and the request for economic exception shall be at a date that the director determines will allow sufficient time for the town to analyze the issues raised by the appeal and the economic exception application. This subsection shall not apply if the denial, condition of approval, mitigation measure, or other measure was reasonably foreseeable when the applicant filed his first land development application for the property.

D.

For purposes of this section, "first land development application" means the first land development application filed in connection with a particular project.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

The applicant shall provide all of the following information within thirty days of the decision on which the economic exception request is being filed:

1.

The date the applicant purchased or otherwise acquired the property, and from whom;

2.

The purchase price paid by the applicant for the property and a description of any consideration that the applicant received for that purchase price in addition to the property;

3.

The fair market value of the property at the time the applicant acquired it, describing the basis upon which the fair market value is derived, including any appraisals done at the time;

4.

The general plan, zoning, or similar land use designations applicable to the property at the time the applicant acquired it, as well as any changes to these designations that occurred after acquisition;

5.

A description of any development restrictions or other restrictions on use, other than government regulatory restrictions described in Subsection A.4 above, that applied to the property at the time the applicant acquired it, or which have been imposed after acquisition;

6.

A description of any change in the size of the property since the time the applicant acquired it, including a discussion of the nature of the change, the circumstances, and the relevant dates;

7.

A statement as to whether the applicant has sold or leased a portion of, or interest in, the property since the time of purchase, indicating the relevant dates, sales prices, rents, and nature of the portion or interests in the property that were sold or leased;

8.

A title report for the property, as well as copies of any underlying documents referenced therein, and copies of any litigation guarantees or similar documents that affect or limit the use of all or a portion of the property;

9.

A statement describing any offers to buy all or a portion of the property which the applicant solicited or received within the last five years, including the approximate date of the offer and offered price;

10.

An accounting of the applicant's costs associated with the ownership of the property, annualized for each of the last five calendar years, including property taxes, property assessments, debt service costs (such as mortgage and interest costs), and maintenance, operation and management costs;

11.

Apart from any rent received from the leasing of all or a portion of the property, an accounting of any income generated by the use of all or a portion of the property over the last five calendar years. If there is any such income to report, it should be listed on an annualized basis along with a description of the uses that generate or have generated such income; and

12.

A brief written explanation why the application is necessary to avoid an unconstitutional taking.

B.

The director may, in his reasonable discretion, not require information from the list above or require the submittal of additional information that he determines is necessary to analyze the application.

C.

The director may, in his reasonable discretion, grant additional time for the applicant to submit the required information.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)

A.

The council shall hold a public hearing on any application for an economic exception. The council shall grant an economic exception from strict application of the town's land use regulations if the council makes the following findings:

1.

Based on the economic information provided by the applicant or consultants, and considering any other relevant evidence, strict application of the town's land use regulations would not provide an economically viable use of the applicant's property or would otherwise constitute an unconstitutional taking of the applicant's property.

2.

The economic exception granted will result in a project which, to the maximum extent possible while avoiding an unconstitutional taking:

a.

Complies with the general plan and zoning ordinance; and

b.

Minimizes significant environmental impacts.

B.

The council's findings shall identify the evidence supporting the findings.

(Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010)