§ 8.7. PUBLIC INFRASTRUCTURE FINANCING PROVISIONS
8.7.1. Off-Site Road Studies, Plans and Impact Assessments
The Cost Recovery for Off Site Improvements section has been replaced by the El Paso County Road Impact Fee Program Resolution (Resolution No. 16-454), or any amendments thereto.
8.7.2. Cost Recovery for Off Site Improvements
(A)
General.
(1)
Purpose. The purpose of this Section is to state the conditions and procedures under which an applicant subdivider may be required to reimburse requestor subdivider for a fair share of the cost of certain improvements that the County required to have installed as part of the development approval, and which improvements would benefit the proposed development.
(2)
Applicability. This section shall apply to applications for divisions of land which fall under the definition of "subdivision" and to development applications and actions that fall within the purview of this Code.
(3)
Retroactive Application. A requestor subdivider may apply for a fair share reimbursement for any plat, including any amendment thereto, approved by the BoCC and recorded on or after August 8, 2001. A request for a fair share reimbursement shall only be applicable, however, to an applicant subdivider's petition for final plat approval that is accepted as a complete submittal by the PCD on or after the date of BoCC approval of the requestor subdivider's plat.
(B)
Eligibility.
(1)
Improvements that May be Eligible for Cost Recovery. An improvement may be eligible for cost recovery if it is adjacent to the applicant subdivider's subdivision or the applicant subdivider's subdivision receives the presumed use of the improvement. An improvement located within the boundary of the requestor subdivider's subdivision may also be eligible for cost recovery.
(2)
Right to Apply for Cost Recovery Approved by PCD Director. Whether a requestor subdivider may apply for cost recovery is an administrative decision to be made by the PCD Director.
(3)
Assignments. Unless the instrument of assignment provides otherwise, the assignee shall have the same rights and obligations as the assignor. The instrument of assignment shall be in writing signed by the assignor and assignee, and each signature shall either be acknowledged or subscribed and sworn before a notary public. The instrument of assignment shall provide a full and complete description in clear and plain language of the rights being assigned. The PCD Director shall have the sole and complete discretion to accept or reject the instrument of assignment.
(4)
Metropolitan Districts, Local Improvement Districts, Regional Transportation Authorities, or Similar Governmental Entities. A metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity may qualify as a requestor subdivider when a document under the subdivision approval process identifies the metropolitan district, local improvement district, regional transportation, or similar type of governmental entity as being responsible for the installation of an improvement. The metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity may seek fair share reimbursement as an assignee of requestor subdivider.
(5)
Limits to Cost Recovery. Under no circumstances may a requestor subdivider recover more than the actual costs incurred for the improvement less the actual costs of improvement attributable to use by the requestor subdivider's subdivision.
(6)
Ineligibility to Pursue Cost Recovery. A requestor subdivider is not eligible to seek fair share reimbursement if the PCD Director determines that there is another procedure under this Code that enables the requestor subdivider to otherwise receive a fair share reimbursement for the cost of an otherwise eligible improvement.
(C)
Approval and Effect of Private Agreements.
(1)
Allowed and Limited Rights to Seek Cost Recovery. Nothing prohibits a requestor subdivider and an applicant subdivider from entering into a private agreement for the recovery of the fair share reimbursement; however, a private agreement renders a requestor subdivider ineligible to seek cost recovery for the relevant improvement with respect to property that is the subject of a private agreement.
(2)
Private Agreement to be Reviewed and Approved by PCD Director. A private agreement considered for review by the PCD shall be in a writing signed by the requestor subdivider and the applicant subdivider, or benefited property, and each signature shall either be acknowledged or subscribed and sworn before a notary public. The private agreement shall provide a full and complete description in clear and plain language of the rights and obligations contained in the private agreement. The PCD Director shall have the sole and complete discretion to accept or reject a private agreement.
(D)
Process for Request and Approval of Fair Share Reimbursement.
(1)
Application for Fair Share Reimbursement. A requestor subdivider seeking fair share reimbursement for the costs of an improvement shall file a cost recovery statement, which shall include the submittals required below, with the PCD no earlier than the date of final plat approval and no later than one year after the date of completion of the improvement. Different improvements in a subdivision may have different application dates and different application deadlines. Furthermore, there may be multiple applications per subdivision, but under no circumstances shall a requestor subdivider be entitled to submit more than one application for a particular improvement. The requestor subdivider shall submit the following with the cost recovery statement:
• A clear description and drawing of the improvement together with an itemized statement of the total actual costs of the improvement together with copies of paid receipts or other evidence of payment of the costs. This does not preclude preparation of a cost recovery statement based upon estimated costs;
• A statement, report, or study, including supporting data, prepared or certified by a professional engineer or other professional in the relevant field, that expresses the maximum and net remaining capacity of the improvement in quantitative terms generally accepted by professionals in the relevant area of expertise and consistent with any procedures maintained by the County;
• A calculation that relates the quantitative measurement derived per the requirements of the above-stated paragraph to a dollar cost per the quantitative measurement. For example, in the case of a road the amount should generally be expressed in terms of dollar cost per ADT or similar terms; and
• A list of all properties, identified by address (if available), legal description, and tax parcel number, to which the requestor subdivider may desire to make a request for fair share reimbursement, any of which hereinafter shall be referred to as a potential benefited property, together with a scaled drawing or survey establishing the location of the relevant improvement in relation to these properties. For all properties, a list of the names and mailing addresses of the property owners, any of which may be referred to as a potential benefited property owner. For purposes of determining a property owner's address, the requestor subdivider may use the most current records of the El Paso County Assessor's Office.
(2)
Request Based on Estimated Cost of Improvement. A requestor subdivider may submit a request for fair share reimbursement based only upon the estimated costs of an improvement. The estimated costs of an improvement shall be the those established for the improvement in the surety estimate associated with the SIA, exclusive of any percentage of overage (i.e. contingency) required by the County.
A requestor subdivider that has selected the estimated cost approach may change that selection to actual cost approach; however, in changing the selection, the requestor subdivider shall follow the procedures as if submitting a new request for fair share reimbursement. Furthermore, in changing the selection, the requestor subdivider shall not be entitled to seek fair share reimbursement from an applicant subdivider who received a final determination of fair share reimbursement or from the owner of any property that is no longer subject to cost recovery due to the passage of time.
(3)
Review of Cost Recovery Statement. The PCD Director shall review the cost recovery statement. The review shall include, but is not limited to, an analysis of the following: the accuracy and veracity of the costs, the reasonableness and appropriateness of the costs; a comparison of the costs to prevailing rates; consistency of the cost recovery statement with technical and professional standards, in order to generally assure that the cost recovery statement does not disproportionately or inequitably attempt to shift the cost of constructing the improvement to other property owners; and general conformance with the requirements of this Section. The PCD Director may request additional information from the requestor subdivider. A request for additional information shall be made within 30 days after submission of the cost recovery statement and the requestor subdivider shall have 30 days following the date of the request to submit the additional material requested.
(4)
Initial Notice to Potential Benefited Property Owners. Within 10 days after submission of the cost recovery statement to the PCD, the PCD Director shall prepare a notification to potential benefited property owners.
(5)
Approval or Denial of Cost Recovery Statement. Within 60 days after submission of the cost recovery statement, or within 30 days after the receipt of the requested additional materials, whichever is later, the PCD Director shall prepare and issue a written determination, which includes a description of the reasons for the determination, to: (1) approve the cost recovery statement as submitted, or (2) approve the cost recovery statement with adjustments, or (3) deny the cost recovery statement because of failure to produce required or requested materials or because the improvements do not provide benefits to other property owners.
(6)
Notice of PCD Director Decision. As soon as practicable after making its determination, the PCD Director shall send the written determination to the requester subdivider and to each potential benefited property owner. The PCD Director shall include with the written determination a notice of right to appeal to both the requester subdivider and any benefited property owner.
(7)
Notice of Fair Share Reimbursement Recorded. As soon as practicable after the issuance of the BoCC's final determination upon appeal, or, if no appeal is taken, after the expiration of the period for appeal from the determination of the PCD Director, the PCD shall prepare and record a Notice of Fair Share Reimbursement in the chain of title for each benefited property. The PCD shall mail a copy of the recorded notice to the requester subdivider and each benefited property owner.
(E)
Notification.
(1)
Notification by Mail. Whenever a notice or a mailing is required, the notice shall always be sent to the person or entities both by first class mail, postage prepaid return receipt requested, and by first class mail, postage prepaid. Notice shall be deemed received when mailed. In the event the last day for giving or receiving notice falls on a day when PCD is not open for business, the last day shall be deemed to extend to the next business day in which the PCD is open for business.
(2)
Address to be Used for Notice. Notice to a potential benefited property owner shall be sent to the address in the El Paso County Assessor's Office current property records. Notice to a requestor subdivider shall be sent to the last known address of the requestor subdivider provided with the request for fair share reimbursement. Notice to any applicant subdivider shall be sent to the address in the PCD files for the relevant subdivision.
(3)
Burden to Keep County Informed of Current Address. It is the obligation of the requestor subdivider and applicant subdivider to keep the PCD informed of a current mailing address. The sole and exclusive method to keep the PCD informed is to mail an address notification to the PCD. The notice shall reference the relevant file number for the requestor subdivider or applicant subdivider. The absence of address notification in a requestor subdivider or applicant subdivider file at the PCD shall be conclusive proof that the notice was not received.
(F)
Appeal.
(1)
Notice of Appeal. The requestor subdivider or any benefited property owner may appeal the decision of the PCD to the BoCC by filing a written request for appeal in accordance with the Procedures Manual and this Code. In order to be considered for appeal, the notice of appeal shall be received by the PCD no later than 30 calendar days after the date of mailing of notice of the PCD Director's determination.
(2)
Notice of Hearing. The PCD Director shall set the matter for hearing before the BoCC, which hearing shall be held in an open and public meeting no later than 45 calendar days after the PCD receives a copy of a notice of appeal. The PCD shall send notice of the hearing to the requestor subdivider and each potential benefited property owner.
(3)
BoCC Hearing Procedure. The hearing shall be de novo. At the hearing, the PCD, the requestor subdivider, and any benefited property owner shall be entitled to present evidence or comments to the BoCC. The BoCC shall make its findings and determinations on the public record. No later than 30 calendar days after the hearing, the BoCC shall issue its written findings and determinations as found on the record. In making its determination, the BoCC shall generally consider the factors set forth in the review of cost recovery statement.
(4)
Notice of BoCC Determination. The PCD shall send a copy of the BoCC's final determination to the requestor subdivider and each property owner who was originally noticed.
(5)
Review of BoCC Determination. The benefited property owner and the requestor subdivider's sole and exclusive remedy concerning the BoCC's final determination shall be to seek a judicial review of the decision.
(6)
Limit of Effect of Request for Judicial Review. Although a regulation enacted by the BoCC cannot generally bind a court of competent jurisdiction, it is the intent of the BoCC in the adoption of this Section that disputes concerning the amount of fair share reimbursement should not result in an order prohibiting final plat approval or recording of the final plat; disputes should only result in the applicant subdivider depositing a sum certain or other security in the registry of the relevant court in the approximate amount of the disputed fair share reimbursement. The purpose of these provisions is to assure that the applicant subdivider receives the protections guaranteed to it by the United States Constitution, and specifically the protections guaranteed by the decisions of the United States Supreme Court.
(G)
Payments, Interest and Duration of Cost Recovery Obligations.
(1)
Reimbursement Limited to 15 years. A requestor subdivider is only entitled to receive a fair share reimbursement from an applicant subdivider for a period not to exceed 15 years from the date of completion of the improvement.
(2)
Amount Due for Fair Share Reimbursement.
(a)
Calculation of Fair Share Reimbursement. In the final plat approval process for the applicant subdivider's subdivision, the extent of the applicant subdivider's usage of the relevant improvement shall be determined. The extent of this usage shall be multiplied by the rate determined and stated in the Notice of Fair Share Reimbursement. The requestor subdivider shall be entitled to simple interest on this amount at the rate of 8% per annum, calculated from the date of recording of the Notice of Fair Share Reimbursement.
(b)
Studies Required to Determine Usage of Improvement. As a condition of allowing an applicant subdivider's subdivision to proceed to a hearing on final plat approval, the PCD Director shall require the applicant subdivider to submit a statement, report, or study, including data in support thereof, which should be prepared or certified by a professional engineer or other professional in the relevant field, concerning the applicant subdivider's subdivision's anticipated use of the improvement, which proposed use shall be stated in a quantity consistent with the rate established in the Notice of Fair Share Reimbursement for the relevant Improvement.
(3)
BoCC May Limit Obligation. If supported by the evidence provided by the applicant subdivider, the BoCC shall have the right to make a determination that the applicant subdivider's subdivision does not make use of the improvements and is therefore not under an obligation to pay a fair share reimbursement to the requestor subdivider,.
(4)
Hearing Concerning Requestor Subdivider's Request for Reimbursement.
(a)
Notice of Hearing. At least 14 days before the date of the hearing before the Planning Commission and the BoCC, the PCD shall send notice of the hearing to the requestor subdivider.
(b)
PCD Director's Recommendation Presented. At the hearing, the PCD shall present the PCD Director's recommendation pursuant to the fair share reimbursement obligation of the applicant subdivider. The applicant subdivider and the requestor subdivider shall also have an opportunity to present evidence and comment concerning the proposed subdivision's anticipated use of the relevant improvement.
(c)
BoCC Findings and Determination. The BoCC shall make a findings and determination concerning the applicant subdivider's subdivision's anticipated use of the improvement and the applicant subdivider's fair share assessment at the hearing on the applicant subdivider's final plat. The BoCC findings and determination shall be final on the matter. The applicant subdivider's and the requestor subdivider's sole and exclusive remedy concerning the BoCC's final determination shall be to seek a judicial review of the decision.
(5)
PCD Director Actions Upon Receipt of Funds. Upon receipt of the funds, the PCD Director shall record a Notice of Release of Claim for Fair Share Reimbursement in the chain of title for each relevant benefited property. The PCD Director shall send a copy of the recorded Notice of Release to the applicant subdivider and the requestor subdivider. The PCD Director shall then mail the amount received to the requestor subdivider. After mailing the amount received, the PCD shall record in the chain of title for the relevant property a Release of Notice of Fair Share Reimbursement. In the event that the release is only for a partial release of a property, the PCD Director shall consult with the OCA before preparing or recording a release. In the event that a title company, etc. requests a different release than as set forth in the Procedures Manual, the PCD Director shall consult with the OCA before preparing, executing, or recording any other release. The PCD Director shall provide a copy of the recorded release to the requestor subdivider and the applicant subdivider.
(6)
Return of Funds. In the event the mailing is returned to the PCD, the PCD Director shall have the discretion to either deposit the funds to the Great Colorado Payback Program, C.R.S. §§ 30-13-110, et seq., as amended, or to interplead the funds in the Registry of the El Paso County District Court.
(H)
Release of Notice of Fair Share Reimbursement After Expiration of 15-Year Period.
(1)
Filing of Release. Upon the expiration of the 15-year period following the date of completion of a particular improvement, the PCD Director shall prepare and record in the chain of title for the relevant property a Release of Notice of Fair Share Reimbursement. The PCD Director shall mail a copy of the recorded release to the requester subdivider and any benefited property owner not previously released from any obligation related to that improvement.
(2)
Erroneously Recorded Release. In the event a Release of Notice of Fair Share Reimbursement is erroneously recorded, erroneous release shall not exempt the property from performance of its obligations. The property shall perform its obligations as the recording of the Notice of Fair Share Reimbursement is merely a statement that a unique government land use regulation may apply to a property; the Notice is thus not a lien or any other type of encumbrance on the chain of title for the property.
(3)
Effect of Release Upon Re-Subdivision/More Intensive Development. The Notice of Fair Share Reimbursement recorded in the chain of title is not an encumbrance upon real estate; it is merely a notice that the property may be subject to a local land use regulation. Accordingly, the fact that a Release of Notice of Fair Share Reimbursement may have been recorded for a particular property, shall not preclude the particular property from being subject to obligation to participate in a fair share reimbursement upon a re-subdivision of the particular property to a higher density or more intensive development.