Section 9.7. COMPLETION OF NONCONFORMING PROJECTS.  

9.7.1. All nonconforming projects on which construction was begun at least 365 days before the effective date of this Ordinance as well as all nonconforming projects that are at least 25 percent completed in terms of the total expected cost of the project on the effective date of this Ordinance may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

9.7.2. Except as provided in subsection 9.7.1, and except to the extent that a developer has a vested right as set forth in Section 4.7, all work on any nonconforming project shall cease on the effective date of this Ordinance, and all permits previously issued for work on nonconforming projects shall be revoked unless the developer requests an appeal to the Board of Adjustment to overturn the UDO Administrator's decision. An appeal shall stay any revocation. The UDO Administrator shall issue such a permit if he/she finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changes his position in some substantial way in reasonable reliance on the Ordinance as it existed before the effective date of this Ordinance and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed. In considering whether these findings may be made, the UDO Administrator shall be guided by the following, as well as other relevant considerations:

9.7.2.1. All expenditures made to obtain or pursuant to a building, zoning, sign, or special or conditional use permit that was validly issued and that remains unrevoked shall be considered as evidence of reasonable reliance on the land use law that existed before this Ordinance became effective.

9.7.2.2. Except as provided in subdivision 9.7.2.1, no expenditures made more than 365 days before the effective date of this Ordinance may be considered as evidence of reasonable reliance on the land use law that existed before this Ordinance became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

9.7.2.3. To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditures to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old.

9.7.2.4. To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

9.7.2.5. A person shall be considered to have acted in good faith if the person (i) had actual knowledge of a proposed change in the Ordinance affecting the proposed development site which could not be attributed to him, or (ii) should have known of the proposed change in the Ordinance.

9.7.2.6. Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the UDO Administrator may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the requirements of the proposed Ordinance. The UDO Administrator may find that the developer did not proceed in an attempt to avoid requirements of the proposed Ordinance if he/she determines that (i) at the time the expenditures were made it was not clear that the proposed Ordinance would prohibit the intended development, and (ii) the developer had legitimate business reasons for making expenditures.

9.7.2.7. In deciding whether a permit should be issued under this section, the UDO Administrator shall not be limited to either denying a permit altogether or issuing a permit to complete the project (or phases, sections, or stages thereof) as originally proposed or approved. Upon proper submission of plans by the applicant, the UDO Administrator may also issue a permit authorizing a development that is less nonconforming than the project as originally proposed or approved but that still does not comply with all the provisions of the Ordinance making the project nonconforming. The UDO Administrator shall not allow the nonconforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to allow the developer to recoup and obtain a reasonable rate of return on the expenditures he has made in connection with that nonconforming project.

9.7.3. When it appears from the developer's plans or otherwise that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under subsection 9.7.2 and obtain permits. In addition to the matters and subject to the guidelines set forth in subdivisions 9.7.2.1 through 9.7.2.7, the UDO Administrator shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

9.7.3.1. Whether any plans prepared or approved regarding incompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural, or engineering work.

9.7.3.2. Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

9.7.3.3. Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or on such a scale, in anticipation of connection to or interrelationship with approved but incompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but incompleted phases are constructed in conformity with existing regulations.

9.7.3.4. The UDO Administrator shall not consider any application for the permit authorized by subsection 9.7.2 that is submitted more than 60 days after the effective date of this Ordinance. The UDO Administrator may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.

(Ord. of 10-9-2018)