(A) General. If after the submission and decision on the appropriate applications for development approval or permits, a landowner in the city is of the opinion that an economically beneficial use of the landowner's land has been denied by the application of this ZDO, this procedure shall be used by the applicant prior to seeking relief from the courts in order that any denial of economically beneficial use of land may be remedied through a non-judicial forum.
(B) Purpose. The purpose and intent of the beneficial use determination is that every landowner in the city enjoy an economically beneficial use of land. It is also the purpose and intent of this section to provide for relief to the landowner, where appropriate, from the application of this ZDO. The procedure set forth in this section is intended to permit landowners who believe they have been deprived of economically beneficial use of their land to apply to the City Council for relief sufficient to provide an economically beneficial use of the land.
(C) Procedure.
(1) Application for a beneficial use determination. An application for beneficial use determination may be filed by a landowner at any time with the Zoning Administrator, along with an application fee.
(2) Contents of application. The application shall be submitted in a form established by the Zoning Administrator and made available to the public, and shall include the following:
(a) The landowner's name and address;
(b) A legal description and the street address (when a street address is available) of the land;
(c) Documentation of the date of purchase and the purchase price of the land, and any offers to purchase the land made by any person, corporation, or association, within the last three years;
(d) A description of the physical features present on the land, the land's total acreage, the present use of the land, and the use of the land at the time of the adoption of this ZDO;
(e) Evidence of any investments made by the landowner to improve the land, the date the improvements were made, and the costs of the improvements;
(f) A description of what uses of land were available when the land was purchased by the landowner;
(g) A description of the regulations and uses permitted which are alleged to result in an elimination of economically beneficial use of the land;
(h) All appraisals, studies, and any other supporting evidence, and any actions taken by the city related to the land;
(i) A description of the use which the landowner believes represents the minimum legally required economically beneficial use of the land and all documentation, studies, and other supporting evidence thereof.
(3) Determination of completeness.
(a) The Zoning Administrator shall determine, within seven days, if the application is complete and includes data in sufficient detail to evaluate the application to determine if it complies with the appropriate substantive requirements of this section.
(b) If the Zoning Administrator determines the application is not complete, a written notice shall be mailed to the applicant specifying the application's deficiencies. No further action shall be taken on the application until the deficiencies are remedied. If the applicant fails to correct the deficiencies within 30 days, the application shall be considered withdrawn, and the application fee shall be refunded.
(c) When the application is determined complete, the Zoning Administrator shall notify the applicant, in writing, of the application's sufficiency, and forward the application to a Hearing Officer for the scheduling of a hearing.
(4) Establishment of date for hearing by hearing officer and notice. Within 60 days after the date the application has been determined complete by the Zoning Administrator, the City Council shall appoint a Hearing Officer to schedule and conduct a hearing on the application in accordance with the procedures and standards of this section.
(5) Hearing by Hearing Officer. At the hearing, the applicant or the applicant's representative shall present the applicant's case and the City Attorney shall represent the city. All evidence presented shall be under oath, and the parties involved shall be permitted to cross-examine witnesses. The sworn testimony and evidence shall pertain to whether the applicant has been deprived of an economically beneficial use of the land and the standards in § 162.03-16(E), Granting of Relief, pertaining to the degree of relief needed to provide the landowner with an economically beneficial use of the land.
(6) Findings of the Hearing Officer. Within 45 days of the close of the hearing, the Hearing Officer shall prepare recommended findings of fact and a proposed order for the consideration of the City Council. The findings and recommendations of the Hearing Officer as to whether the land is provided economically beneficial use shall be based on the evidence submitted and the standards in § 162.03-16(D), Beneficial Use Standards. If the Hearing Officer finds that the applicant has been denied economically beneficial use of the subject land, then the Hearing Officer shall recommend a use that permits an economically beneficial use and results in a minimum change from the regulations of these codes as they apply to the subject land, in accordance with the standards set forth in § 162.03-16(D), Beneficial Use Standards, and § 162.03-16(E), Granting of Relief, or other relief as is determined appropriate. The Hearing Officer's recommended findings of facts and proposed order shall be in writing and shall detail the basis of the conclusions from the record of the hearing.
(7) Action by City Council. The Zoning Administrator shall schedule a hearing before the City Council within 45 days of the date the Hearing Officer issues the recommended findings of fact and proposed order. At the hearing, the City Council shall approve the findings of fact and proposed order of the Hearing Officer, or may attach conditions, modify, or reverse the findings of fact or proposed order of the Hearing Officer, based on the standards of § 162.03-16(D), Beneficial Use Standards, and § 162.03-16(E), Granting of Relief. If the City Council attaches conditions, modifies or reverses the findings of fact or proposed order, it shall do so only where the record of the hearing indicates that the Hearing Officer is unsupported by the record, or that the proposed order is not in conformance with the standards of § 162.03-16(D), Beneficial Use Standards, and § 162.03-16(E), Granting of Relief.
(D) Beneficial use standards. In determining if a landowner has been deprived of an economically beneficial use of land, the Hearing Officer and City Council shall take into account the following factors:
(1) Economically viable use. In making the determination of whether the land is provided an economically beneficial use, the Hearing Officer/City Council shall first evaluate the uses of the land as provided by this ZDO, and the uses of land in relation to the uses provided similarly situated lands. For the purposes of this section, ECONOMICALLY BENEFICIAL USE means the opportunity to make a return equivalent to that which would have been received from a conservative financial investment. Transitory economic issues shall not be relevant to this determination.
(2) Diminution in value. The market value of the land, as established by the comparable sales approach, prior to adoption this ZDO, which caused the landowner to apply for relief shall be compared to the market value of the land, as established by the comparable sales approach, with the regulations of this ZDO as applied. Market value of the land prior to the adoption of this ZDO, or any amendment thereto, shall constitute its highest and best use on the date of purchase of the land, and a date prior to the application of these regulations, and any other land value/appraisal information that the applicant would like to be considered. All appraisals shall be proposed by qualified licensed appraisers, and shall follow the best professional practices as established by the profession. A mere diminution in market value is not sufficient to support a determination of denial of economically beneficial use.
(3) External costs. The amount or nature of any subsidy that may be required by the city, neighbors, purchasers, tenants, or the public-at-large if the uses allowed under these Codes are modified; or any other adverse effects on the city and its residents.
(4) Current state of the law. The state of the law established by the United States Supreme Court, the federal Circuit Courts of Appeals, and the South Carolina Supreme Court, and all other courts of competent jurisdiction, relevant to these standards.
(E) Granting of relief.
(1) Relief. If the finding is that a landowner has been deprived economically beneficial use of land, or is otherwise entitled to relief in accordance with the standards of this section, relief shall be granted.
(2) General. In granting relief, the Hearing Officer may recommend and the City Council may adopt any legally available incentive or measure reasonably necessary to offset any substantial economic hardship, and may condition such incentives or measures upon approval of specific development plans. If there is a finding that the denial of the application would create a substantial economic hardship, the Hearing Officer may recommend and the City Council may consider additional relief to provide an appropriate increase in market value or other benefit or return to the applicant sufficient to offset the substantial economic hardship. The types of incentives that the Hearing Officer may recommend and the City Council may consider include, but are not limited to, the following:
(a) An opportunity to transfer density or cluster development on other land;
(b) A waiver of permit fees;
(c) Development finance assistance;
(d) Approval of development on some portion of the land; or
(e) Acquisition of all or a portion of the land at market value.
(3) Minimum increase. In granting relief, the landowner shall be given the minimum increase in use density/intensity or other possible concessions from this ZDO in order to permit an economically beneficial use of the land or a use that is determined to be required by law. The highest use, or even an average or generally reasonable expectation, is not required or intended as the appropriate remedy. The following guidelines shall be used for determining the minimum economically beneficial use of land and, therefore, the amount of relief to be granted a landowner in order to reach that minimum.
(a) A minimum economically beneficial use of the land should be one that does not have any governmental subsidy attached to the long-term safe occupation of the land, if such a subsidy is needed, then that should be reflected by lowering the use intensity that is considered a minimum economically viable use on a market valuation basis.
(b) A use common to the city, although it may not involve further development of the land, is considered an economically viable use. Attention shall also be given to land uses that are considered to be the lowest intensity in the city but which uses still provide for occupation and living within the city. These land uses, as well, shall be considered economically viable uses.
(c) The actual condition of the land shall be considered. The reality of limited development potential, given the natural condition of the land, shall not be attributed to the regulations applied to the land. If the land is such that it cannot safely accommodate development with normal grading and clearing practices, this fact shall lower the intensity of use that is considered a minimum economically beneficial use.
(d) The potential for damages to either residents or land shall be assessed in determining economically viable use. The need for a governmental subsidy to future landowners shall be considered, and the cost of such subsidies shall be deducted from the otherwise established minimum economically beneficial use.
(e) Expectations shall, in general, not be considered. Only reasonable expectations backed by investments as required by the current state of the law, shall be considered.
(f) The current state of law established by the United States Supreme Court, the federal Circuit Court of Appeals, and the South Carolina Supreme Court, relevant to the granting of relief.
(F) Appeal. The decision of the City Council may be appealed to a court of law.
(Ord. 05-10, passed 3-23-10)