§ 5.06.00. Capacity Encumbrance Letters.

5.06.01 Introduction. A Capacity Encumbrance Letter is a determination by the County Manager or Designee that, for a particular parcel, given a specific proposed Development density or intensity and based on the timing of Development by phase and year, the proposed Development will be concurrent at the time the Capacity Encumbrance Letter is issued and that the County Manager or Designee has encumbered a specified amount of Public Facility or service capacity as specified in the letter. A Capacity Encumbrance Letter is a prerequisite to a Capacity Reservation Certificate. In no event Shall an applicant encumber a greater amount of capacity than that necessary to serve the maximum amount of Development Permitted on the site under its current land use designation on the future land use map and its current Zoning District.

5.06.02 Procedure for Capacity Encumbrance Letter evaluation. After receipt of an application for a Capacity Encumbrance Letter, the County Manager or Designee Shall process the application, conduct a concurrency evaluation, and issue a Capacity Encumbrance Letter or a Capacity Encumbrance Denial Letter. When the County Manager or Designee reviews the application, the basis for the review Shall be to determine whether or not the project, and its resulting demands upon public facilities and services and the resulting impacts upon applicable LOS, will result in degradation in the LOS of any applicable Public Facility or service below the LOS adopted in this Ordinance or the Comprehensive Plan.

For Road concurrency, staff will prepare a general assessment of the project's impacts, using current guidelines and methodologies outlined in a procedure to be adopted by the County Manager, in order to determine whether Roadways are operating below or are projected to operate below the adopted LOS standards. If failing facilities are identified within the area of influence, staff will notify the applicant of options to satisfy concurrency and the applicant will be required to attend a preapplication conference to discuss the options available to mitigate the concurrency deficiencies.

5.06.03 Application for Capacity Encumbrance Letter. An application for a Capacity Encumbrance Letter Shall be accompanied by a fee which Shall be set by resolution of the Board of County Commissioners from time to time. Any application seeking a Capacity Encumbrance Letter Shall submit the following information on a form provided by the County Manager or Designee; no such application Shall be accepted (or deemed accepted) until it is complete:

(1)

Property owner's name, address and telephone number;

(2)

Applicant's name, address and telephone number;

(3)

Parcel Alternate Key number and legal description;

(4)

Land use(s) and Zoning District(s) Permitted for the parcel or parcels under the future land use map;

(5)

Proposed use(s) by land use category, square feet and number and type of units;

(6)

Phasing information by proposed uses, square feet and number of units, if applicable;

(7)

Existing use of property;

(8)

Acreage of property;

(9)

Name of project;

(10)

Site design information, if applicable;

(11)

Potable water needs for the proposed Development (together with a verification of service letter from the service provider);

(12)

Wastewater needs for the proposed Development (together with verification of service letter from the service provider;

(13)

Traffic information as specified within;

(14)

Proposed geographic allocation of capacity by legal description, if applicable; and

(15)

Such other information as deemed necessary by the County.

5.06.04 Action by County Manager or Designee if all Public Facilities and Services Found to be Concurrent. If, during the concurrency evaluation, the County Manager or Designee determines that all public facilities and services are concurrent, or are concurrent with conditions, the County Manager or Designee Shall issue the Capacity Encumbrance Letter, which Shall advise the applicant that capacity is available for reservation or for issuance of a Building Permit. The effective date of encumbrance of capacity Shall be deemed to be the date of the Capacity Encumbrance Letter and the Capacity Encumbrance Letter Shall be valid for a period of one hundred twenty (120) days. If the applicant seeks a reservation during the one-hundred-twenty-day encumbrance period, capacity Shall be reserved by issuance of a Capacity Reservation Certificate in accordance with this Ordinance. If the applicant is not the property owner, a copy of the Capacity Encumbrance Letter Shall also be sent to the property owner. At a minimum, the Capacity Encumbrance Letter Shall include:

(1)

Property owner's name, address and telephone number;

(2)

Applicant's name, address and telephone number;

(3)

Parcel Alternate Key number and legal description;

(4)

Land use(s) and Zoning District(s) Permitted for the parcel or parcels under the future land use map;

(5)

Amount of capacity encumbered for each facility or service;

(6)

The date the Capacity Encumbrance Letter was issued; and

(7)

The date upon which the Capacity Encumbrance Letter expires, unless, prior to such expiration date, either (i) a Building Permit is issued, or (ii) the encumbered capacity is reserved by the issuance of a Capacity Reservation Certificate.

5.06.05 Use of encumbered capacity. If a Capacity Reservation Certificate is issued within the encumbrance period and the capacity encumbered is greater than the capacity reserved, the excess encumbered capacity Shall revert to the available capacity bank on the date the Capacity Reservation Certificate is issued. If a Building Permit is issued within the encumbrance period and the capacity encumbered is greater than the capacity committed to the Building Permit, the excess encumbered capacity Shall revert to the available capacity bank on the date the Building Permit is issued. When a valid Building Permit is issued for a project utilizing encumbered capacity, that capacity Shall become Permitted capacity and Shall not be recaptured unless the Building Permit lapses, is revoked, or expires without the issuance of a Certificate of Occupancy. When a valid Capacity Reservation Certificate is issued for a project utilizing encumbered capacity, that capacity Shall become reserved capacity and Shall not be recaptured unless (i) the Capacity Reservation Certificate lapses or expires without the issuance of a valid Building Permit, or (ii) a Building Permit is issued but lapses, is revoked, or expires without issuance of a Certificate of Occupancy.

5.06.06 Action by County Manager or Designee if one (1) or more Public Facilities Does Not Meet Concurrency. If the County Manager or Designee determines that one (1) or more public facilities or services lacks sufficient available capacity to accommodate the applicant's request, he/she Shall issue a Capacity Encumbrance Denial Letter that Shall advise the applicant that capacity is not available for one (1) or more public facilities or services. The applicant Shall have sixty (60) days from the issuance of the letter to submit an application to:

(i)

Be placed on the capacity waiting list,

(ii)

Pursue the concurrency appeal/mitigation process outlined herein (Section 5.09.00), and/or

(iii)

Pursue the Proportionate Fair-Share Contribution (to remedy a Transportation facilities deficiency only) as outlined herein. At a minimum, the Capacity Encumbrance Denial Letter Shall include:

(1)

Property owner's name, address and telephone number;

(2)

Applicant's name, address and telephone number;

(3)

Parcel Alternate Key number and legal description;

(4)

Proposed use(s) by land use category and Zoning District, square feet and number of units;

(5)

The public services or facilities determined not to be concurrent, including the level of the deficiency, if known;

(6)

Status of any applicable waiting lists; and

(7)

The options available to the applicant including, but not necessarily limited to submitting an application:

(i)

To be placed on the capacity waiting list;

(ii)

To enter the concurrency appeal/mitigation process pursuant to Section 5.09.00 of this Ordinance; and

(iii)

To propose a Proportionate Fair-Share contribution (to remedy a Transportation facilities deficiency only).

5.06.07 Capacity waiting list.

1.

Applicants who receive a Capacity Encumbrance Denial Letter due to insufficient capacity within an applicable service area may elect to be placed on the capacity waiting list. Placement on the capacity waiting list will serve to confirm a valid application for a Capacity Encumbrance Letter and will serve to ensure an equitable "first come-first served" processing of applications. Projects on the capacity waiting list Shall be offered capacity as it becomes available on a first come-first served basis. Applicants will be notified by certified mail that capacity is available for allocation to their specific project and advised as to any additional information or documentation required to facilitate updating and final review of their application. If the available capacity is insufficient to accommodate the project as a whole, the County Manager or Designee Shall offer the available capacity to the applicant. The applicant may:

A.

Reserve the available capacity by payment of the required fee to obtain issuance of a Capacity Encumbrance Letter as respects the then available capacity, and either:

(i)

Remain in place on the waiting list and continue waiting for additional capacity; or

(ii)

For Transportation facilities deficiencies only, utilize the Proportionate Fair-Share contribution for the additional capacity required for the specific parcel.

B.

Reject the offer of capacity within thirty (30) days, in which event the available capacity Shall be offered to the next applicant on the waiting list. The applicant's failure to respond within the thirty-day timeframe Shall be considered a rejection of the offer of capacity.

2.

Within thirty (30) days following receipt of an application of a written offer of capacity, the applicant Shall (i) supply such additional information or otherwise finalize the pending application as required by the County Manager or Designee, (ii) pay the required fee for issuance of the Capacity Encumbrance Letter, and (iii), if applicable, submit a request to pursue the Proportionate Fair-Share contribution for the provision of Transportation facilities only.

3.

Failure to accept the offered capacity by timely providing the updating information requested by the County Manager or Designee and paying the applicable capacity encumbrance fee Shall be deemed a withdrawal of the application and the applicant Shall be removed from the capacity waiting list.

5.06.08 Transfer of Encumbered Capacity. Encumbered capacity Shall not be transferred to property not included in the legal description provided by the applicant in the application for the Capacity Encumbrance Letter. However, if during the encumbrance period the applicant submits an application for a Building Permit or an application for a Capacity Reservation Certificate, the applicant may, as a part of such application, designate the amount of capacity allocated to portions of the property, such as Lots, blocks, parcels or tracts, included in the application. Moreover, a Capacity Encumbrance Letter Shall be deemed in all respects appurtenant to the real property described therein and to which it applies. A Capacity Encumbrance Letter may not be sold, assigned, transferred or conveyed separate or apart from the real property to which it relates and which is described in the Capacity Encumbrance Letter.

Notwithstanding the preceding sentence, a Capacity Encumbrance Letter, and all rights and obligations appertaining thereto, may be collaterally assigned as security for a loan encumbering the real property described in, and which is the subject of, the Capacity Encumbrance Letter. The collateral assignment Shall vest in the collateral assignee as security interest in the Capacity Encumbrance Letter, but the collateral assignee Shall not be deemed to have acquired title to the Capacity Encumbrance Letter until and unless the collateral assignee acquires fee title in and to the property described in the Capacity Encumbrance Letter and the County receives written notice from the collateral assignee that it has acquired such fee simple interest, together with copies of such legal documents evidencing the acquisition of such fee title by the collateral assignee, at which time, the County Manager or Designee Shall reissue the Capacity Encumbrance Letter to the collateral assignee as fee simple title holder of the property. However, in no event Shall such reissuance to a collateral assignee extend the original encumbrance period, and the reissued Capacity Encumbrance Letter Shall expire on the same date as the original letter would have expired. The County Manager or Designee Shall not be required to furnish any written notices to the collateral assignee; specifically, but not by way of limitation, the County Manager or Designee Shall not be required to notify the collateral assignee of the expiration of a Capacity Encumbrance Letter, notwithstanding that the effect of the expiration of the one-hundred-twenty-day encumbrance period would be termination of the Capacity Encumbrance Letter and return of the capacity to the available capacity bank.

5.06.09 Expiration of Capacity Encumbrance Letter. If the Capacity Encumbrance Letter expires prior to issuance of either a Capacity Reservation Certificate in accordance with this Ordinance or a Building Permit using the encumbered capacity, the capacity Shall revert to the available capacity bank as described in this Ordinance. A Capacity Encumbrance Letter Shall be valid for a period of one hundred twenty (120) days following the date of the letter (the "encumbrance period").

(Ord. No. 2009-39, § 2, 7-21-09)