EL PASO COUNTY
LAND DEVELOPMENT CODE

Chapter V - Section 49.3 E
FAIR SHARE REIMBURSEMENT (Cost Recovery) FOR IMPROVEMENTS

1. Purpose

The purpose of this section is to state the conditions and procedures under which these Subdivision Regulations may require that applicants for subdivision approval reimburse another subdivider for a fair share reimbursement of the Cost of certain improvements that the County required to have installed under the subdivision approval process, and which improvements would benefit said other subdivision.

2. Authority

Authority to allow and require fair share reimbursement, which may also be referred to herein as Cost Recovery, is specifically conferred by CRS 30-28-133 (12) and more generally by CRS §§ 30?28?101 et. Seq. (Planning, Zoning, and Subdivision) and CRS §§ 29?20?101, et Seq. (Local Land Use Control Enabling Act), among others.

3. General Definitions

a. Requestor Subdivider: A subdivider who requests a fair share reimbursement of the Cost of certain improvements that the County requires to have installed under the subdivision approval process. A Requestor Subdivider may be an assignee or successor in interest to the initial applicant for a subdivision under the subdivision approval process.

b. Applicant Subdivider: A subdivider that may be required by an approved Cost Recovery Statement issued under these regulations to reimburse a Requestor Subdivider for a fair share of the Cost of certain improvements that the County required to have installed under the subdivision approval process. An Applicant Subdivider is also referred to in these Regulations as a Benefited Property Owner.

c. Benefited Property: Any property identified in a pending or an approved Cost Recovery Statement (pursuant to Section 49.3.E of this Code as being potentially benefited by adjacent or off-site Improvements constructed by a Requestor Subdivider.

d. Costs: Any monetary expense incurred and paid for the installation of an Improvement that the County required to have installed under the subdivision approval process and that is directly related to the construction, inclusive of design and planning, of an Improvement eligible for a fair share reimbursement under these Regulations. The cost may be incurred by the Requestor Subdivider or by any metropolitan district, local improvement district, transportation authority, or similar type of governmental entity. These expenses may include but are not limited to, land acquisition, materials, labor, engineering, survey, title, management, supervision, consulting, legal, and other professional matters. Under no circumstances may costs include the expenses incurred in preparing or processing a Cost Recovery Statement.

e. Date of Completion of an Improvement: The earlier of the date that the County accepts dedication of the Improvement that is the subject of the Cost Recovery Statement or, in the case of Improvements to which the County does not require dedication, the earlier of the date of the County's release of the collateral for the construction of the relevant Improvement or the date that any building permit is issued for the subdivision.

f. Improvement: The word Improvement or Improvements includes, but is not limited to, any street or road and any facilities related to streets or roads, water distribution systems, sewage collection systems, storm drainage facilities, and/or any other type of structure of facility that that County requires as a condition or requirement of final plat approval of a subdivision, and which is determined by the County to have excess capacity which will benefit one or more Applicant Subdividers. The Improvement may be internal as well as adjacent to or outside of the legal description of the Requester Subdivider's subdivision.

g. Fair Share Reimbursement: A reimbursement to the Requestor Subdivider not to exceed the Costs of the Improvement, plus interest, for that share of the Costs related to excess capacity not needed to meet the demands of the Requestor Subdivider. Under no circumstances may a Requester Subdivider recover more than the its actual Costs incurred for the Improvement less the actual Costs of Improvement attributable to use by the Requester Subdivider's subdivision.

4. Retroactive Application

A Requestor Subdivider may apply for a fair share reimbursement under this Regulation for any final subdivision plat, including any amendment thereto, approved by the Board of County Commissioners and recorded, whichever occurs later, on, but not before, or after August 8, 2001. However, any request for a fair share reimbursement under this Regulation shall only be applicable to an Applicant Subdivider's petition for Final Plat Approval that is accepted as a complete submittal by the Development Services Department, on or after the effective date of this Regulation, which effective date shall be the date of approval of this Regulation by the Board of County Commissioners.

5. Ineligibility to Pursue Cost Recovery

a. A Requestor Subdivider is not eligible to seek said fair share reimbursement if the Development Services Director and/or the Director of the El Paso County Department of Transportation, which may hereinafter be referred to as the Transportation Department or the Department of Transportation, determine that there is another procedure under this Code that enables the Requestor Subdivider to otherwise receive a fair share reimbursement for the Cost of any of any otherwise eligible Improvement.

b. Nothing in these Regulations prohibits a Requester Subdivider and an Applicant Subdivider from entering into a private agreement for the recovery of said Fair Share Reimbursement. However, any such Agreement renders a Requester Subdivider ineligible to seek Cost Recovery for the relevant Improvement with respect to any property that is the subject of a private agreement. Any private agreement considered for review by the Development Services Department or the Transportation Department 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 an 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 said private agreement. The Transportation Department and the Development Services Department shall have the sole and complete discretion to accept or reject any such private agreement as an administrative decision of the relevant Department. Any person or entity so aggrieved by the administrative determination of the relevant Department may appeal the administrative determinate pursuant to the provisions of Paragraph 15, Appeal, in these Regulations.

c. Whether a Requester Subdivider may apply for Cost Recovery under these Regulations is an administrative decision to be made by either the Development Services Department or Department of Transportation. In the event that either Department determines that a Requester Subdivider is not able to apply for Cost Recovery under these regulations, the Requester Subdivider may file a written request for appeal in accordance with Chapter V., Section 46 K. of the El Paso County Land Development Code, excepting that on appeal from the Department of Transportation, the Department of Transportation shall be substituted for the Development Services Department.

6. Improvements that may be Eligible for Cost Recovery

An Improvement may be eligible for Cost Recovery under these regulations if it is adjacent to the Applicant Subdivider's Subdivision and/or if the Applicant Subdivider's subdivision receives the presumed use of said Improvement. An Improvement located within the boundary of the Requester Subdivider's subdivision may also be eligible for Cost Recovery under these Regulations.

7. Estimated Costs

A Requester 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 finally determined by the Transportation Department and/or the Development Services Department at the amount necessary to guaranty funds for the completion of the Improvement at the time of approval of the final plat for the Requester Subdivider's subdivision, exclusive of any percentage of overage (i.e. contingency) required by the County. The County and the Requestor Subdivider shall ordinarily use the Estimate of Guaranteed Funds recorded with the Subdivision Improvements Agreement (IGA) for the purpose of determining the applicable estimated Costs. A Requester Subdivider that has selected the estimated cost approach as set forth above may change that selection in order to proceed to seek fair share reimbursement on an actual cost approach. However, in so changing the selection, the Requester Subdivider shall follow all procedures as if submitting a new Request for Fair Share Reimbursement. Furthermore, in so changing the selection, the Subdivider shall not be entitled to seek Fair Share Reimbursement from any Applicant Subdivider who received a final determination of fair share reimbursement under Paragraph 14 herein or from the owner of any property that is no longer subject to cost recovery due to the passage of time under Paragraph 15 herein.

8. Assignments

Unless the instrument of assignment provides otherwise, the Assignee of any person or entity under these Regulations shall have all rights and obligations under these Regulations as the Assignor. Any instrument of assignment shall be in a 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 in said instrument. The Development Services Department or the Transportation shall have the sole and complete discretion to accept or reject any such instrument of Assignment as an administrative decision of the Development Services Department or the Transportation. Any person or entity so aggrieved by the administrative determination of the relevant Department may appeal the administrative determinate pursuant to the provisions of Paragraph 15, Appeal, in these Regulations.

9. Metropolitan Districts, Local Improvement Districts, Regional Transportation Authorities, or Similar Governmental Entities

These Regulations accept that a metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity may qualify as under the definition of a subdivider in the event that any 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 any improvement required under the subdivision approval process. In addition, any metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity may seek fair share reimbursement under these regulations as an assignee of Requestor Subdivider. Any metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity may seek fair share reimbursement as an assignee even if any documents under subdivision approval process identified the metropolitan district, local improvement district, regional transportation authority, or similar type of governmental entity as being responsible for the installation of the improvement for which fair share reimbursement is sought under the subdivision approval process.

10. Request for Fair Share Reimbursement (Cost Recovery)

A Requester Subdivider desiring to seek fair share reimbursement for the Costs of any Improvement shall file a Cost Recovery Statement (Statement), which shall be inclusive of the submittals required below, with the Transportation Department together with a copy to the Development Services Department no earlier than the date of Final Plat Approval and no later than one (1) year after the date of completion of and Improvement. Accordingly, the Regulation contemplates the possibility that different improvements in a subdivision may have different application dates and different application deadlines. Furthermore, this Regulation contemplates the possibility that there may be multiple applications per subdivision, but under no circumstances shall a Requester Subdivider be entitled to submit more than one application for a particular Improvement. The Requester Subdivider shall submit the following with the Cost Recovery Statement:

a. 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 and/or other evidence of payment of said Costs. This subparagraph does not preclude preparation of a Cost Recovery Statement based upon estimated costs.

b. A statement, report, or study, including any data in support thereof, prepared and/or certified by a professional in the relevant field, preferably a professional engineer, 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.

c. A calculation that relates the quantitative measurement derived per the requirements of the above-stated paragraph to a dollar cost per said quantitative measurement. For example, in the case of street or road the amount should generally be expressed in terms of dollar cost per average daily trip (ADT) or similar terms.

d. A list of all properties, identified by street address (if available), legal description, and El Paso County Tax Parcel Number, to which the Requester Subdivider may desire to subject to these Regulations, 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.

e. For all such properties identified in paragraph (d) above, a list of the names and mailing addresses of the property owners, any of which may be referred to in these Regulations as a potential Benefited Property Owner or BPO. For purposes of determining a property owner's address, the Subdivider Requester may use the most current records of the El Paso County Assessor's Office for the property.

11. Review of Cost Recovery Statement

The Department of Transportation shall review the Cost Recovery Statement for several purposes. These include, but are not limited to, an analysis for the accuracy and veracity of the Costs, the reasonableness and appropriateness of the Costs, comparison of the Costs to prevailing rates, consistency of the Statement with technical and professional standards, in order to generally assure that the Statement does not disproportionately or inequitably attempt to shift the cost of constructing the relevant improvements to other property owners, and general conformance to the requirements of the above-stated Paragraph 8. In so analyzing the Statement, the Transportation Department may request additional information from the Requester Subdivider so as to enable it to confirm or better understand the information presented. Any request for additional information from the applicant shall be made within 30 days after submission of the Statement, and the applicant shall have 30 days following the date of such request to submit the additional material requested.

12. Notification by Mail/Burden to Keep County Informed of Current Address

a. Whenever these Regulations require notice or a mailing to any person or entity, said notice shall always be sent to said person or entity both by first class mail, postage prepaid, return receipt requested, and by first class mail, postage prepaid. Any such notice shall be deemed received when mailed. In the case of notice to any potential Benefited Property, the notice shall be sent to the address stated in most current record for the property in the records of the El Paso County Assessor's Office. In the case of notice to any Requester Subdivider, the notice shall be sent to the last known address of the Requester Subdivider as stated in the file of the Department of Transportation for the request for fair share reimbursement. In the case of notice to any Applicant Subdivider, the notice shall be sent to the last known address as stated in the files of the Development Services Department for the relevant subdivision. In the event the last day for giving or receiving notice falls on a day when either the Department of Transportation or the Development Services Department is not open for business, the last day shall be deemed to extend to the next business day in which the Department of Transportation or the Development Services Department is open for business.

b. It is the obligation of any Requester Subdivider and any Applicant Subdivider to keep the County informed of a current mailing address. The sole and exclusive method to so keep the County informed is to mail an address notification to the Department of Transportation and the Development Services Department, which notice shall reference the relevant file number for the Requester Subdivider or Applicant Subdivider. The absence of any notification in the Requester Subdivider's and/or Applicant Subdivider's file at the Department of Transportation or the Development Services Department shall be conclusive proof that the notice was so received by either the Department of Transportation or the Development Services Departmen.

13. Initial Notice to Potential Benefited Property Owners

Within ten (10) days after submission of the Cost Recovery Statement to the Department of Transportation, the Department of Transportation shall prepare a notification to all potential Benefited Property Owners by using the form attached to these Regulations as Appendix A.

14. Approval or Denial

a. Within sixty (60) days after the Cost Recovery Statement was submitted (or thirty (30) days after the date on which any requested additional materials were received, whichever is later), the Department of Transportation shall prepare and issue written findings that state its determination and its reasons for so making its determination to: (1) approve the Statement as submitted, or (2) approve the Statement with adjustments, or (3) deny the Statement because of the applicant's failure to produce required or requested materials or because the Improvements do not provide benefits to other property owners. In making its decision, the Department of Transportation shall consider, but shall not be limited to, the factors set forth in Paragraph 8 above.

b. As soon as practicable after making its determination, the Department of Transportation shall send its written determination to the Requester Subdivider and to each potential Benefited Property Owner. The Department of Transportation shall include with its written determination a notice of right to appeal to both the Requester Subdivider and any Benefited Property Owner by using the form attached to these Regulations as Appendix B.

15. Appeal

a. The Requester Subdivider or any Benefited Property may appeal the decision of the Department of Transportation to the Board of County Commissioners by filing a written request for appeal in accordance with Chapter V., Section 46 K. of the Land Development Code, excepting that the Department of Transportation shall be substituted for the Development Services Department. The instructions to the appellant for filing the written request for an appeal shall be as set forth in the form attached to these Regulations as Appendix B. In order to be considered for appeal, the notice of appeal must received by the Department of Transportation no later than thirty (30) calendar days after the date of mailing of notice of the Notice of Appeal.

b. The Department of Transportation shall set the matter for hearing before the Board of County Commissioners, which hearing shall be held in an open and public meeting no later than forty five (45) calendar days after the Department of Transportation receives a copy of the first notice of appeal. The Department of Transportation shall send notice of the hearing, which notice of hearing shall be as set forth in the form attached to these Regulations as Appendix C, to the Requester Subdivider and each potential Benefited Property Owner.

c. The hearing shall be de novo. At the hearing the Department of Transportation, the Requester Subdivider, and any Benefited Property shall be entitled to present any evidence or comments to the Board of County Commissioners. The Board of County Commissioners shall make its findings and determinations on the public record. No later than thirty (30) calendar days after said hearing, the Board of County Commissioners shall issue its written findings and determinations as found on the record. In making its determination the Board of County Commissioners shall generally consider the factors set forth in Paragraph 8 above.

d. The Department of Transportation shall send a copy of the Board of County Commissioner's final determination to the Requester Subdivider and each Property Owner who was originally noticed.

e. The Benefited Property Owner's and the Requester's sole and exclusive remedy concerning the Board of County Commissioner's final determination shall be to seek a judicial review of the decision.

f. As soon as practicable after the earlier of the Board of County Commissioner's issuance of its final determination or in the event that the Requester Subdivider or any Benefited Property Owner does not appeal the determination of the Department of Transportation, the Department of Transportation shall prepare and record a Notice of Fair Share Reimbursement in the chain of title for each Benefited Property. The Notice shall be in a format consistent with Appendix D. The Department of Transportation shall mail a copy of the recorded Notice to the Requester Subdivider and each Benefited Property Owner.

16. Payments, Interest and Duration of Cost Recovery Obligations

a. A Requester Subdivider is only entitled to receive a fair share reimbursement as established under these Regulations from an Applicant Subdivider for a period not to exceed 15 years from the date of completion of the relevant Improvement.

b. 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 Requester Subdivider shall be entitled to interest on this amount at the rate of eight percent (8%) per annum, simple interest, calculated from the date of recording of the above-stated Notice of Fair Share Reimbursement.

c. As a condition of allowing a proposed subdivision to proceed to a hearing on final plat approval, the Development Services Department shall require the Applicant Subdivider to submit a statement, report, or study, including any data in support thereof, which should be prepared and/or certified by a professional in the relevant field, preferably a professional engineer, concerning the proposed subdivision's anticipated use of the relevant 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.

d. In a request for final plat approval, the County and the Applicant Subdivider shall determine whether the relevant subdivision uses the relevant Improvement and the quantity of such usage. Accordingly, the Board of County Commissioners shall have the right to make findings, if supported by the evidence that the Applicant Subdivider's subdivision does not make any use of the improvements and, therefore, is not under an obligation to pay a fair share reimbursement to the Requester Subdivider. At least fourteen (14) days before the date of any hearing before the Planning Commission and the Board of County Commissioners, the Development Services Department shall send notice of the hearing to the Requester Subdivider.

e. At the hearing the Department of Transportation shall present its recommendation pursuant to the fair share reimbursement obligation of the Applicant Subdivider. The Applicant Subdivider and the Requester Subdivider shall also have an opportunity to present evidence and comment concerning the proposed subdivision's anticipated use of the relevant improvement.

f. The Board of the County Commissioners shall make a finding concerning the proposed subdivision's anticipated use of the relevant improvement and the Applicant Subdivider's fair share assessment at the hearing on the Applicant Subdivider's final plat. The Board of County Commissioners finding shall be final on the matter. The Applicant Subdivider's and the Requester Subdivider's sole and exclusive remedy concerning the Board of County Commissioner's final determination shall be to seek a judicial review of the decision.

g. The County shall not permit the final plat of the Applicant Subdivider to be recorded unless and until the Applicant Subdivider shall tender good funds in full to the Department of Transportation in the amount established by the Board of County Commissioners. Upon receipt of the funds, the Director of the Department of Transportation shall record a Notice of Release of Claim for Fair Share Reimbursement in the chain of title for each relevant Benefited Property, which Notice of Release shall be as set forth in form attached to these Regulations as Appendix E. The Department of Transportation shall send a copy of the recorded Notice of Release to the Applicant Subdivider and the Requester Subdivider. The Department of Transportation shall then mail the amount received to the Requester Subdivider. Upon Mailing of the amount received, the Department of Transportation shall record in the chain of title for the relevant property a Release of Notice of Fair Share Reimbursement as such Notice is set forth in Appendix ___ of these Regulations. In the event that the Release is only for a partial release of a property, the Department of Transportation shall consult with the County Attorney's Office before preparing or recording any such Release. In the event that a title company, etc. requests a different release than as set forth in the Appendix, the Department of Transportation hall consult with the County Attorney's Office before preparing, executing, or recording any such other release. The Department of Transportation shall provide a copy of the recorded release to the Requester Subdivider and the relevant Applicant Subdivider.

h. Although a regulation enacted by the Board of County Commissioners cannot generally bind a court of competent jurisdiction, it is the intent of this Regulations that any dispute concerning the amount of fair share reimbursement should not result in a order prohibiting final plat approval or recording of the final plat; any dispute 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 in {Nolan/Dolan---state formal case names and citations}.

i. In the event said mailing is returned to the Department of Transportation, the Director of the Department of Transportation shall have the discretion to either deposit the funds to the Great Colorado Payback Program, Section 30-13-110, et seq., C.R.S, 2001, as amended, or to interplead the funds in the Registry of the El Paso County District Court.

17. Release of Notice of Fair Share Reimbursement after Expiration of 15-Year Period

Upon the expiration of the 15-year period following the date of completion of a particular Improvement, the Department of Transportation shall prepare and record in the chain of title for the relevant property a Release of Notice of Fair Share Reimbursement as such Notice is set forth in Appendix ___ of these Regulations. The Department of Transportation shall mail a copy of the recorded release the Requester Subdivider and any Benefited Property Owner not previously released from any obligation related to that Improvement.

18. Erroneously Recorded Release

In the event any Release of Notice of Fair Share Reimbursement is erroneously recorded, such erroneous release shall not exempt said property from performance of its obligations as stated under these Regulations. Said 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; said Notice is thus not a lien or any other type of encumbrance on the chain of title for said property.

19. Effect of Release Upon Re-Subdivision/More Intensive Development

As stated in this Regulation, the Notice 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.

"Subdivider See Section 30-28-101(9), C.R.S., 2001, as amended. In addition, any person, along with their heirs or assigns, who holds title to a property which has been previously or is in the process of being subdivided in unincorporated El Paso County pursuant to C.R.S. Title 30-28-133 et. seq. and/or the El Paso County Subdivision Regulations. "In addition, this term is specifically inclusive of any person who does not yet hold title to the pertinent property, but who has the lawful capacity by or through a contract or any other lawful means from the person holding title to the property to apply for subdivision of the pertinent property".

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