17.57.200 Economic hardship relief provisions

17.57.200 Economic hardship relief provisions.

1. Hardship relief petition. Any applicant for development, after a final decision on its development application is taken by the city council, may file a hardship relief petition with the city recorder seeking relief from all or part of the hillside protection overlay zone regulations on the basis that the denial of the application has created a substantial economic hardship to the extent of depriving the applicant of all reasonable use of its property.

2. Affected property interest. The hardship relief petition must provide information sufficient for the planning commission and the city council to determine that the petitioner possesses a protectable interest in property under Article I, Section 22 of the Constitution of Utah and/or the Fifth Amendment to the United States Constitution.

3. Economic hardship standard. For purpose of this ordinance, a substantial economic hardship shall be defined as a denial of all reasonable use of the property. Upon a finding that the denial of the application has resulted in a denial of all reasonable use of the property, the Lindon City Council may provide the petitioner with relief from all or part of the hillside protection overlay zone regulations.

4. Time for filing notice of petition and petition. No later than ten (10) calendar days from final action by the city council on any development application, the applicant shall file a notice of petition in writing with the city recorder. Within thirty (30) days of filing of a notice of petition, the applicant shall file a hardship relief petition with the city recorder.

a. The hardship relief petition must be submitted on a form acceptable to the city, shall be signed by the applicant and verified, and must be accompanied at a minimum by the following information:

i. Name of the petitioner;

ii. Name and business address of the current owner of the property, form of ownership, whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture, limited liability company, or other, and if owned by a corporation, partnership, joint venture, or limited liability company, the name and address of all principal shareholders, members, or partners.

iii. Price paid and other terms of purchase of the property, the date of purchase, and the name of the party from whom purchased, including the relationship, if any, between the petitioner and the party from whom the property was acquired;

iv. Nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership, leasehold interest;

v. Terms (including sale price) of any previous purchase or sale of a full or partial interest in the property in the five years prior to the date of application;

vi. All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the five years prior to the date of application;

vii. The assessed value of and ad valorem taxes on the property for the previous five years;

viii. All information concerning current mortgages or other loans secured by the property, including name of the mortgagee or lender, current interest rate, remaining loan balance an term of the loan and other significant provisions, including but not limited to, rights of purchasers to assume the loan;

ix. All listings of the property for sale or rent, price asked and offers received, if any, within the previous five years;

x. All studies commissioned by the petitioner or agents of the petitioner within the previous five years concerning feasibility of development or utilization of the property;

xi. For income producing property, itemized income and expense statements from the property for the previous five years;

xii. Information from a title report or other source showing all recorded liens or encumbrances affecting the property as of the date of the petition;

xiii. A specific description of the exact hillside protection zone regulations the application economic hardship to the extent of depriving the petitioner of all reasonable uses of its property, together with the factual basis for said assertion; and

xiv. A specific description of the modifications from the hillside protection zone regulations which petitioner asserts are necessary, to the minimal extent necessary, to prevent the petitioner from sustaining a substantial economic hardship to the extent of depriving the petitioner of all reasonable use of its property, together with the factual basis for said assertion.

b. The planning commission or the city council may request additional information reasonably necessary, in their opinion, to arrive at a conclusion concerning whether there has been a denial of all reasonable use constituting a substantial economic hardship.

6. Failure to submit information. In the event that any of the information required to be submitted by the petitioner is not reasonably available, the petitioner shall file with the petition a statement of the information that cannot be obtained and shall describe the reasons why such information is unavailable.

7. Hearing by the planning commission. Within thirty (30) days of the filing of a completed hardship relief petition, together with all required and requested supporting information and documentation required by the city council or the planning commission, the planning commission shall schedule a public hearing with notice consistent with the provision of Section 17.02.010 of the Lindon City Code. The public hearing shall be held on or before thirty (30) days from the date of notice, unless a reasonable extension of time is agreed to by both the planning commission and the petitioner. At the public hearing, the petitioner shall be entitled to testify and to call witnesses and present facts and evidence. The petitioner shall be entitled to cross examine witnesses. All witnesses shall be sworn and testify under oath.

8. Application of the economic hardship standard. In applying the economic hardship standard, the planning commission shall consider among other items the following information or evidence:

a. Any estimates from contractors, 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 petition, and in the reasonably near future;

b. Any evidence or testimony of the market value of the property both considering and disregarding all or portions of the hillside protection zone requirements; and

c. Any evidence or testimony deemed relevant by the planning commission.

9. Burden of proof. The petitioner shall have the burden of proving that the denial of the application creates a substantial economic hardship as defined herein.

10. Findings of the planning commission. The planning commission shall, on the basis of the evidence and testimony presented, make specific findings as part of its report and recommendations to the city council, which may including the following:

a. Whether the petitioner has complied with the requirements for presenting the information to be submitted with a hardship relief petition;

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

c. The market value of the property considering the hillside protection zone requirements;

d. The market value of the property disregarding all or specific provisions of the hillside protection zone requirements;

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

f. Whether, in the opinion of the planning commission, the denial of the application would create a substantial economic hardship as defined herein.

a. The planning commission, based upon the evidence and findings, shall make a report and recommendation to the city council concerning the hardship relief petition.

b. If the planning commission recommends that the city council approve the hardship relief petition, then the report of the planning commission shall discuss the type and extent of incentives necessary, in the opinion of the planning commission, 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 planning commission may consider include, but are not limited to, the following:

i. Modification or waiver of specific requirements of the hillside protection zone requirements to the minimal extent necessary to offset the substantial economic hardship.

ii. A waiver of permits fees;

iii. Approval of development on some portions of the property within the hillside protection zone; and

iv. Acquisition of all or a portion of the property at market value.

c. The report and recommendation shall be submitted to the city council and mailed to the petitioner within thirty (30) days following conclusion of the public hearing.

12. City council review and consideration. Within sixty (60) days following receipt of the planning commission's report, the city council shall hold a public hearing and provide notice as provided in Section 17.02.010 of the Lindon City Code to review the report and recommendations of the planning commission. At the public hearing, the petitioner shall be entitled to testify and to call witnesses and present facts and evidence. The petitioner shall be entitled to cross examine witnesses. All witnesses shall be sworn and testify under oath. At the public hearing the city council may limit the testimony and evidence to new testimony and evidence not presented to the planning commission. The city council shall approve, in whole or in part, or disapprove the hardship relief petition. The city council may modify or waive the requirements of the hillside protection zone, or may adopted any incentive, to the extent reasonably necessary to offset any substantial economic hardship as defined herein and may condition such incentives upon approval of specific development plans. The city council may take such action without the necessity of resubmission of the petition to the planning commission.

13. Findings of the city council. The city council shall, on the basis of the report and recommendation of the planning commission and the evidence and testimony presented, make specific findings as part of its decision. The findings may adopt, change, or modify the findings of the planning commission.

14. Decisions of the city council. The decision of the city council shall be mailed to the petitioner within thirty (30) days following conclusion of the public hearing.

15. Time limits/transferral of incentives. Any modifications, waivers, or incentives adopted by the city council pursuant to this section may be transferred and utilized by successive owners of property or parties in interest, but in no case shall the incentives be valid after the expiration date of the development approval.

16. Decisions final. The decisions of the city council shall be final.