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HomeMy WebLinkAbout95-438 ~bll /\;~~f"~ ~.~-:: ...., , ~"b !5{ . ,~.' ~.~.. ~ ~\(t,.r~j) 1.-,' l.~;J;':'o,.~ .'0.,"/<1... \:><Y~~~ '...Ji!fi 4 '\\,,'" INDEXED MICROFILMED . . 95056789 BK 2641 PG :126 OFFICIAL RECORDS OF MOHAVE COUNTY, AZ JOAN Me CALL, MOHAVE COUNTY RECORDER 10/30/95 03:55P PAGE 1 OF 9 MOHAVE COUNTY BOARD OF SUPERVISORS REOROING FEE 0.00 BOS RESOLUTION NO. 95-438 A RESOLUTION OF THE MOHAVE COUNTY BOARD OF SUPERVISORS, MOHAVE COUNTY, ARIZONA, ESTABLISHING A HEARING OFFICER FOR APPEALS OF ADMINISTRATIVELY IMPOSED DEDICATION OR EXACTION REQUIREMENTS IN ACCORDANCE WITH A.R.S.11-810 AND 11-811, AND ESTABLISHING POLICIES AND RULES OF PROCEDURE FOR SUCH APPEALS WHEREAS, the State of Arizona has recently enactedA.R.S. 11-810 and 11-811, effective July 13, 1995, mandating the adoption of ordinances, rules and procedures necessary to respond to, and comply with limitations placed on government actions regarding the regulation of real property as articulated by certain United States Supreme Court cases; and WHEREAS, A.R.S. 11-810 and 11-811 require Mohave County to establish procedures for allowing appeals of dedication or exaction requirements which an administrative agency or official ofMohave County has placed on real property in the County as a condition of approval of a use, improvement or development; and WHEREAS, Resolution No. 95-438 meets the requirements of A.R.S. 11-810 and 11-811 by establishing Dedication or Exaction Appeals Rules of Procedure in accordance with the specific mandates set forth in those statutes. NOW THEREFORE BE IT RESOLVED, by the Board of Supervisors of Mohave County, Arizona: SECTION I. The Hearing Officer for Dedication and Exactions Appeals is hereby established, and one or more hearing officer is appointed by the Board of Supervisors and are hereby authorized to act as a Dedications and Exactions Appeal Hearing Officer. The County Planning and Zoning Director is hereby directed to forward for review and potential appointment by the Board the name of one or more qualified individuals to become hearing officers to hear appeals filed pursuant to A.R.S. 11-810 and 11-811. SECTION 2. The Rules of Procedure for appeals of administratively imposed dedication or exaction requirements and Mohave County's Policy and Notice Statement on Appeals of Dedication and Exaction Requirements, which are attached to this Resolution as Appendix A and Appendix B, are incorporated herein by this reference, and are hereby adopted. . . BOS RESOLUTION NO. 95-438 PAGE 2 OF 9 BK 26~1 PG 327 FEE~95056789 Page 2 SECTION 3. Severability. If any provision of this Resolution, or the application thereofto any person or circumstance is invalid, the invalidity shall not affect other provisions or applications of this Resolution which can be given meaning without the invalid provision. PASSED AND ADOPTED by the Board of Supervisors of Mohave County, Arizona this IbM day of I/;?~~ .1995. MORAVE COUNTY BOARD OF SUPERVISORS ATTEST: ~~' e. (;JaAJ/ Joan War Ice Chairman PAGE 3 OF 9 BK 2641 PG 323 FEE~95056739 . . APPENDIX A TO BOARD OF SUPERVISOR RESOLUTION NO. 2.?.:..11ll RULES OF PROCEDURE FOR DEDICATION AND EXACTION APPEALS SCOPE: These rules shall apply in all cases involving decisions of the Dedications and Exaction Appeals Hearing Officer ("Hearing Officer") concerning a dedication or exaction requirement on a use, development or improvement on a parcel of property in Mohave County, as established pursuant to A.R.S. 11-810 and 11-811 and designated by the Board of Supervisors of Mohave County. DEFINITIONS: APPEAL: An application or plea by a property owner to overturn or amend a dedication or exaction requirement imposed by an administrative agency or official of Mohave County as a condition for granting the approval of a use, improvement or development of the property owner's real property in Mohave County, Arizona. Note: A dedication or exaction which is a requirement of a legislative act of the Board of Supervisors and does not give descretion to a County administrative agency or official to determine a dedication or exaction is not subject to appeal under these procedures. AUTHORIZED DESIGNATED REPRESENTATIVE ("Reoresentative"): A person eighteen years of age or older who is not a licensed attorney and is authorized in writing by a property owner to act as a representative on his/her behalf in proceedings before the Hearing Officer. Such written authorization shall be in form sufficient to satisfy the Hearing Officer that the Representative has in fact been authorized to act on the property owner's behalf and that the property owner understands and agrees to be bound by any action taken by the Representative in proceedings before the Hearing Officer. CONTINUANCE: An adjournment of a proceeding to a future day stated prior to the adjournment. COUNSEL: An attorney licensed to practice law in the State of Arizona. .cOUNTY: means Mohave County, Arizona ," . . PAGE 4 OF 9 BK 2641 PG 329 FEE~95056789 COUNTY EX/l,CTION APPEALS REPRESENTATIVE: The County official designated to represent the position of the County at an Appeal hearing with regard to the subject matter of an exaction or dedication appeal. DECISION LETTER: The written and dated document prepared by the Hearing Officer which includes the Hearing Officer's findings of fact and conclusions concerning an appeal brought by a property owner over an exaction or dedication requirement of the County and articulating the Hearing Officer's decision to affirm, modify or deny the County's exaction or dedication requirement. DEDICATION: The conveyance of a fee simple or an easement interest in private real property to the County for public use. DEDICATIONS AND EXACTIONS APPEALS HEARING OFFICER ("HEARING OFFICER"): A person or persons appointed by the Mohave County Board of Supervisors to hear appeals brought by real property owners in the County concerning exactions and dedications placed on a use, improvement or development on a property. DESIGNATED STAFF REPRESENTATIVE: The County official designated to represent the position of the County at an appeal hearing regarding exaction and dedication requirements on a parcel of real property brought by the owner. DETERMINATION LETTER: The written and dated document sent by the County to a property owner, by first class mail, or personally obtained by the property owner, or owner's representative, which officially informs the property owner of the County's final determination regarding the imposition of a dedication or exaction requirement as a condition of granting approval of the use, improvement or development of the owner's real property. EXACTION: A requirement to: 1. Construct a public improvement or facility; and/or 2. Pay money in lieu of construction of a public improvement or facility. PARTiES: A real property owner in Mohave County and the County. COMMENCEMENT OF APPEAL: Eve:y appeal brought before the Hearing Officer shall be in wri'ing and filed with or mailed to the Hearing Officer within thirty (30) days after receipt by the property owner of the Determination Letter. The appeal shall state with detail the dedication or exaction requirement being appealed. No fee s:'all be charged for fiiing an appeal. After receip: of an appeal, the Hearing Officer shall schedule an appeal hearing within thir.y (30) days after receipt. The Parties shall be given at least ten (10) days prior written notice of the date and time of the appeal . . PAGE 5 OF 9 BK ~6~1 PG 330 FEE~95056789 hearing unless the Party not receiving such notice agrees to a shorter notice period. APPEAL HEARING REPRESENTATION: The property owner (appellant) shall have the right to be represented by legal Counsel or by an Authorized Designated Representative at the appeal hearing. In addition to the County Exaction Appeals Representative, the County shall have the right to be represented by Counsel at the appeal hearing. The Parties waive the right to be rep- resented by Counsel at the appeal hearing unless actual written notice of such representation is provided to the Hearing Officer by either or both Parties at least five (5) working days prior to the hearing. DISCOVERY: No pre-hearing discovery shall be permitted absent extraordinary circumstances as determined by the Hearing Officer. Immediately prior to the appeal hearing, the Parties shall produce for inspection by the opposing Party any prepared exhibits and written or recorded statements of any witness which may be offered at the hearing. Failure to comply with the above statement may result, at the Hearing Officer's discretion, in the granting of a recess or continuance to permit such inspection, or denying admission of any evidence not so exchanged. CONTINUANCE: Upon the Hearing Officer's own motion, or a motion by either Party, the Hearing Officer may continue the appeal hearing for a period of not to exceed thirty (30) days, if it appears that the interests of justice may be served. !n the event of a granted continuance the Hearing Officer shall notify the Parties in writing of the new appeal hearing date. O/-l.TH: All testimony at the appeal hearing shall be given under oath or affirmation. WITNESSES: On the motion of the Hearing Officer he may cali and examine any witness including the property owner appellant. Examination or cross-examination of any witness shall be limited to the Hearing Officer. the property owner appellant, either Party's Counsel, property owners' Representative, or County Representative. p.1I witnesses for the prop- erty owner's case in chief, other than the County Representative, shall be required to testify prior to the County Representative being required to testify or to produce any evidence. A witness not Galled to testify in the property owner's case in chief may be called in rebuttal to testify to an issue raised by the County. '. . . P~GE 6 OF 9 ell, 2641 PG 331 FEE~95056739 RULES OF EVIDENCE: The Arizona Rules of Evidence shall not apply to a case before the Hearing Officer. Any evidence offered may be admitted subject to a determination by the Hearing Officer that the offered evidence is relevant and material to the case at hand and has some probative value to a fact at issue. Nothing in this requirement is to be construed as abrogating any statutory provision relating to privileged communications. REQUIREMENT OF ESSENTIAL NEXUS AND ROUGH PROPORTIONALITY: Mohave County has the burden of establishing connectivity between the dedication or exaction placed on a use, development or improvement on real property from a discretionary determination by County, and a legitimate governmental inte~est. Any discretionarily determined dedication or exaction placed on any real property by County shall be roughly proportional to the impact of the proposed use, development or improvement on the public. If it is determined that County established essential nexus and rough proportionality, the Hearing Officer shall affirm the reqUirement of dedication or exaction under appeal. If the County fails to establish an essential nexus and rough proportionality, the Hearing Officer shall modify or deny the requirement of the dedication or exaction. If more than a single parcel is involved, the burden of establishing an essential nexus and rough proportionality applies to the entire property that is subject to the dedication or exaction. ORDER OF PROCEEDINGS: The order of proceedings at an appeal hearing shall be as follows: 1. Testimony of property owner witnesses. 2. Testimony of County witnesses. 3. Testimony of any rebuttal witnesses for the property owner, if any. 4. Testimony of any County surrebuttal witnesses, if any. 5. Testimony and argument of the Parties andior their Counsel, or other desig- nated representative, as permittee by the Hearing Officer. 6. Decision on appeal, continuance of the case, or case taken under advise- ment by the Hearing Officer. DECISION BY THE HEARING O,,"FICER: TIME PERIOD FOR APPEAL If the Hearing Officer d,"cides the appeal in the presence of the Parties immediately after the conclusion of the appeal hearing, sJch decis:on shall also be provided to the Parties in the form of a Decision Letter as soon as practicable after the appeal hearing. In such cases, an aggrieved property owner's thirty (30) day time period for appeaiing the Hearing Officer's decision to Superior Court pursuant to A.R.S. 11-810 (G). shall begin on the first working day after the date of tile appeal hearing. If the Hearing '" . . PAGE 7 OF 9 BK 2641 PG 332 FEE~950567B9 Office: d81ays decisl::!l: of tr.e oppec:: by l<lking the matter under advisement, the Hearing Officer shali issue a Decision Letter to the Parties within five (5) working days after the appeal hearing. In such cases. an aggrieved property owner's time period for zppealing the Hearing Officer's decision shall begin on the first working day after the cate of the Decision Letter. RECORD OF EVENT: All appeal hearing proceedings shall b8 recorded by audiotape. A record of the appeal hearing may be made by a court reporter if provided by the property owner at his/her expense. '. .- . . P~GE 8 OF 9 BK 2641 PG 333 FEE~95056789 APPENDIX B To Board of Supervisors Resolution NO.9 5 - 438 MOHAVE COUNTY POLICY AND NOTICE STATEMENT ON APPEALS OF ADMINISTRATIVELY REQUIRED DEDICATIONS OR EXACTIONS RIGHTS OF A REAL PROPERTY OWNER IN MOHAVE COUNTY In addition to other rights granted to you by the United States and Arizona Constitutions, federal and state law and Mohave County ordinances and regulations, you are hereby notified of your right to appeal any dedication or exaction which is required of you by an administrative agency or official of Mohave County as a condition of granting approval of your request to use, improve or develop your property. A dedication or exaction required in a legislative act of the Mohave County Board of Supervisors that does not give discretion to a County administrative agency or official to determine the nature or extent of the dedication or exaction is not subject to appeal under these procedures. DEFINITIONS DEDICATION: The conveyance of a fee simple or easement interest in private real property to Mohave County for public use. EXACTION: A requirement to: 1. Construct a public improvement or facility; and/or 2. Pay money in lieu of construction of a public improvement or facility. APPEAL PROCEDURE If you wish to appeal a discretionary decision placed on the establishment of a use, development or improvement by an administrative agency or official of Mohave County, the fo!lowing procedures will apply to your appeal: .. The appeal must be in writing and filed with or mailed to the Hearing Officer for Exaction Appeals within 30 days after the administrative agency or officia! has made the determination reauiring the dedication or exaction. The address of the Hearing Officer is as follows: '. ' .- . . PAGE 9 OF 9 BK 26~1 PG 334 FEE~95056789 Hearing Officer for Exaction Appeals Mohave County Planning and Zoning Director's Office P.O. Box 7000 Kingman, AZ 86402-7000 · No fee is required or charged for filing an appeal. · Your hearing will be scheduled before a Hearing Officer within 30 days of receipt by the Planning and Zoning Director's Office of your request. The COUl'lt\! will bear the burden of proving that the dedications or exactions to be imposed on your property have an essential connection between the requirement and a legitimate governmental interest, and that the proposed dedication or exaction is roughly proportional to the impact of the use, improvement or development proposed. o Ten days notice will be given to you of the date, time and place of the hearing unless you indicate to the Hearing Officer in your request that less notice is acceptable to you. · The Hearing Officer must render a decision within five (5) working days after the appeal is heard. · The Hearing Officer can affirm the dedication or exaction, modify it, or deny the requirement. · If you are dissatisfied with the decision of the Hearing Officer, you may file a complaint for a trial de novo with the Superior Court-within thirty (30) days of the Hearing Officer's decision. QUESTIONS? If you have any questions about this appeal process, you may contact the Deput)' Mohave County Attorney at 520-757-0903, extension 5869.