Chapter 3.08 OPEN SPACE ASSESSMENT

A. In accordance with the provisions of NRS Chapter 361A, this chapter has as its purpose the establishment of standards, criteria and procedures which will be used in considering an application for open space use assessment in the county.

B. The provisions of this title apply to all requests and applications for deferred or reduced taxation of open space lands located in the county. (Amended during codification; Ord. 1-8-76 § 1(1-2, 1-3))

3.08.020 Authority.

This chapter is adopted pursuant to the Open Space Assessment Act, NRS Chapter 361A as amended, of the State of Nevada and to any other authority provided by law or as such statutes may be amended. The provisions of this chapter are in addition to the provisions of the Open Space Assessment Act and are supplemental to it. (Amended during codification; Ord. 1-8-76 § 1(1-1))

3.08.030 Compliance required.

A. Whenever any person desires consideration for open space use assessment in the county, all applications must be in full compliance with the provisions of the Open Space Assessment Act of the state and with all provisions and regulations contained in this chapter.

B. All open space areas or developments approved by the county commission for reduced or deferred taxation shall conform to all provisions of the general plan and zoning code of the county, except where this chapter imposes higher standards, the requirements of this chapter prevail. (Ord. 1-8-76 § 1(1-4, 1-5))

3.08.040 Definitions.

For the purposes of this chapter, the following terms have the following meanings:

“Assessor” means the county assessor.

“Board of county commissioners” means the governing body of the county.

“General plan” means the general plan of the county as adopted or subsequently amended.

“Open space real property” means:

1. Land.

a. Located within an area classified pursuant to NRS 278.250 and subject to regulations designed to promote the conservation of open space and the protection of other natural and scenic resources from unreasonable impairment,

b. Devoted exclusively to open space use;

2. The improvements on the land use primarily to support the open space use and not primarily to increase the value of surrounding developed property or secure an immediate monetary return.

“Open space use” means the current employment of land, the preservation of which use would conserve or enhance natural or scenic resources, protect streams and water supplies or preserve sites designated as historic pursuant to law.

“Owner” means any person having a legal or equitable freehold estate in open space real property, including a contract vendee of a land sales contract respecting such property.

“Person” means a natural person or partnership, corporation, association or any form of business organization.

“Potential use” means any use of open space real property higher than open space use, conforming to the use for which other nearby property is used.

“Zoning code” means the adopted zoning code of the county, as set forth in Title 17 HCC. (Ord. 1-8-76 § 1(2-1—2-9))

3.08.050 Application—Generally.

Any owner of real property in the county will make application for open space use assessment in the manner provided in this chapter. The information required by HCC 3.08.080 will be submitted at the time of filing. (Ord. 1-8-76 § 1(3-1))

3.08.060 Filing—Refiling.

Any application for open space use assessment will be filed on or before the first Monday in October of any year with the assessor. A new application to continue the assessment is required on or before the first Monday in October following any change in ownership or from approved open space use of any portion of the property. (Ord. 1-8-76 § 1(3-2))

3.08.070 Forms—Content.

A. The application will be made on forms supplied by the assessor and include a description of the property, its current use and such other information as may be required to determine the entitlement of the applicant to open space use assessment.

B. Each application will contain an affidavit or affirmation by the applicant that the statements contained therein are true. (Ord. 1-8-76 § 1(3-3, 3-4))

3.08.080 Information required.

The applicant will provide the information set forth in this section at the time of filing:

A. A statement setting forth the purpose of the designation and why it should be preserved as a benefit to the general public.

B. Evidence that the open space values of the property are in imminent danger of being destroyed or that the property is unable to continue in open space use without an open space designation.

C. Sufficient plans and specifications to clearly show to the commission the location and proposed plan of development of preservation of the property. Plans will include a map showing its relationship to all contiguous properties along with the current land use on these parcels.

D. If the property is proposed as an historic site, one copy of the state and federal certificates of registration or identification will be submitted.

E. Any other information or materials that may be deemed necessary by the commission in order for them to review the proposal in terms of the criteria found in HCC 3.08.180. (Ord. 1-8-76 § 1(4-1—4-6))

3.08.090 Application—Signature.

A. The application may be signed by:

1. The owner of the open space real property, including tenants in common or joint tenants.

2. Any person of lawful age authorized by a duly executed power of attorney to sign an application on behalf of any person described in subsection (A)(1) of this section.

3. The guardian or conservator of an owner or the executor or administrator of an owner’s estate.

B. The county assessor shall not accept an application unless the application is signed by each owner of record or his representative as specified in subsection (A) of this section. The assessor may require additional information of the applicant as is necessary to evaluate his application. (Ord. 1-8-76 § 1(3-5, 3-6))

3.08.100 Application—Referral.

The county assessor will refer each application for open space use assessment to the board of county commissioners and, if any part of the property is located within an incorporated city, to the governing body of the city within ten days after its filing. (Ord. 1-8-76 § 1(3-7))

3.08.110 Public hearings—County—City.

A. The board of county commissioners will consider the application in a public hearing. The board shall use the applicable procedures and criteria found in HCC 3.08.180 in considering the application and shall weigh the benefits to the general welfare of preserving the current use of the property against the potential loss in revenue which may result from approving the application. The board may set such conditions as it reasonably may require upon its approval of the application.

B. The governing body of the city will consider the application in a public hearing. The governing body will use the applicable procedures and criteria found in HCC 3.08.180 and recommend its approval or denial to the board of county commissioners no later than ninety days after receipt of the application. (Ord. 1-8-76 § 1(3-8, 3-9))

3.08.120 Hearing—Notice.

At least ten days’ notice of the time and place of any public hearing held pursuant to this chapter will be published in a newspaper of general circulation in the county. (Ord. 1-8-76 § 1(3-10))

3.08.130 Partial approval—Withdrawal.

The board may approve the application with respect to only part of the property, but if any part of the application is denied, the applicant may withdraw the entire application. (Ord. 1-8-76 § 1(3-11))

3.08.140 Approval—Timeframe.

The board will approve or deny an application no later than March 31st of each year. An application on which action by the board is not completed by March 31st is approved. (Ord. 1-8-76 § 1(3-12))

3.08.150 Order of approval—Notice—Recordation.

Within ten days after the board approves an application for open space use assessment, it will:

A. Send copies of the order of approval to the county assessor and the applicant;

B. Record the order of approval with the county recorder. (Ord. 1-8-76 § 1(3-13))

3.08.160 Order of denial—Notice.

When the board denies an application, it will, within ten days after denial, send an order of denial to the applicant listing its reasons for denial. (Ord. 1-8-76 § 1(3-14))

3.08.170 Valuation—Assessments.

A. If the property is found by the board of county commissioners to be open space real property, the county assessor will determine its value for open space use and assess it at thirty-five percent of that value.

B. The entitlement of open space real property to open space use assessment will be determined as of December 15th in each year. If the property becomes disqualified for such assessment before that date, it will be assessed as all other real property is assessed and taxed in the ensuing fiscal year upon the basis of taxable value. (Amended during codification; Ord. 1-8-76 § 1(3-15, 3-16))

3.08.180 Determination of use.

In consideration of any application for deferred or reduced taxation, the board of county commissioners will determine that the application complies with all provisions of this section.

A. The preservation of the current land use would conserve and enhance natural or scenic resources, protect streams and water supplies or preserve sites designated as historic pursuant to law.

B. The property is currently devoted to open space use and will remain in open space use for as long as the designation is in effect.

C. The benefit to the general welfare of the public is greater than the amount of tax revenue lost by such approval.

D. The proposed parcel is zoned in the A-1 and/or OS-MU zones, or those zones designated for open space use.

E. The proposed parcel has direct vehicular access onto a dedicated public street or that provision is made by the applicant to provide public access in some other manner acceptable to the board of county commissioners.

F. The proposed parcel must have a greater value for another use than for open space use.

G. The improvements on the land are used primarily to support the open space use and not primarily to increase the value of surrounding developed property or secure an immediate monetary return.

H. Other than the tax savings to be gained, the approval of the proposed parcel would not result in the securing of a monetary return to the applicant, either immediately or future.

I. The parcel designated would not be used for commercial purposes by the applicant.

J. It must be shown that a public benefit will be derived through designation of the property as open space, and the property will be open to the public use on a regular basis throughout the year; the frequency to be determined by the board of county commissioners on an individual basis.

K. Any other conditions which the board of county commissioners may establish from time to time to determine that the public benefit is greater than the loss in revenue therefrom.

L. There will be no degradation to the subject parcel nor to surrounding parcels of property in terms on lessening the quality of air, water or land anywhere in the county. (Ord. 1-8-76 § 1(5-1—5-12))

3.08.190 Continuation of use—Timeframe.

The entitlement of open space real property to open space use assessment will be determined as of December 15th in each year. If the property becomes disqualified for such assessment prior to that date, it will be assessed as all other real property is assessed and taxed in the ensuing fiscal year upon the basis of taxable value. (Amended during codification; Ord. 1-8-76 § 1(6-1))

3.08.200 Disqualification.

The county assessor will enter on the assessment roll the valuation based on open space use until the property becomes disqualified for open space use assessment by:

A. Notification by the applicant to the assessor to remove open space use assessment;

B. Sale or transfer to an ownership making it exempt from ad valorem property taxation;

C. Removal of the open space use assessment by the assessor, with the concurrence of the board, upon discovery that the property is no longer in the approved open space use;

D. Failure to file a new application as provided in HCC 3.08.050 through 3.08.070 and HCC 3.08.090 through 3.08.170. (Amended during codification; Ord. 1-8-76 § 1(6-2))

3.08.210 Sale or death not vehicle for disqualification.

Except as provided in HCC 3.08.200(B), the sale or transfer by reason of death of a former owner does not operate to disqualify open space real property from open space use assessment so long as the property continues to be used exclusively for an approved open space use, if the new owner applies for open space use assessment in the manner provided in HCC 3.08.050 through 3.08.070 and HCC 3.08.090 through 3.08.170. (Ord. 1-8-76 § 1(6-3))

3.08.220 Disqualification—Notice.

Whenever open space real property becomes disqualified under HCC 3.08.200, the county assessor will send a written notice of the disqualification by certified mail with return receipt requested to each owner of record. (Ord. 1-8-76 § 1(6-4))

3.08.230 Appeal—Generally.

The determination of use, the open space use assessment and the potential use assessment in each year are final unless appealed. (Ord. 1-8-76 § 1(7-1))

3.08.240 Appeal—Entitlements.

The applicant for open space assessment is entitled to:

A. Appeal the determination made by the board of county commissioners to the district court in the county where the property is located, or if located in more than county, in the county in which the major portion of the property is located, as provided in NRS 278.0235;

B. Equalization of both the open space use assessment and the potential use assessment in the manner provided in this chapter for complaints of overvaluation, excessive valuation or undervaluation. (Amended during codification; Ord. 1-8-76 § 1(7-2))

3.08.250 Appeal—Contents.

Any person claiming that any open space real property is no longer in the approved open space use may file a complaint and proof of his claim with the board of county commissioners of the county or counties in which the property is located. The complaint and proof will show the name of each owner of record of the property, its location, description and the use in which it is claimed to be. (Ord. 1-8-76 § 1(7-3))

3.08.260 Appeal—Notice of hearing.

The board will hear the complaint after ten days’ notice of the time to the complainant and each owner of the property. (Ord. 1-8-76 § 1(7-4))

3.08.270 Appeal—Notice of determination.

A. The board will examine the proof and all data and evidence submitted by the complainant, together with any evidence submitted by the county assessor or any other person.

B. The board will notify the complainant, each owner of the property and the county assessor of its determination within ten days after the hearing. It will direct the county assessor to appraise, value and tax the property in the following assessment period in a manner consistent with its determination and the provisions of this chapter, and in appropriate cases, order the tax receiver to collect any amounts due under HCC 3.08.310. (Ord. 1-8-76 § 1(7-5))

3.08.280 Appeal of board decision.

The determination of the board may be appealed to the district court by the complainant or the owner of the property. (Ord. 1-8-76 § 1(7-6))

3.08.290 Change of use—Notification.

Within thirty days after any property which has received open space use assessment ceases to be used exclusively for the approved open space use, the owner will notify the county assessor in writing of the date of cessation of the use. (Ord. 1-8-76 § 1(8-1))

3.08.300 Change of use—Liability.

If the owner fails to file the notice required by HCC 3.08.290, he shall be liable for the penalty provided in HCC 3.08.310 in addition to the deferred taxes and interest. (Ord. 1-8-76 § 1(8-2))

3.08.310 Payment of deferred tax and penalty—Lien for amounts owed.

A. Upon the filing of a timely notice pursuant to HCC 3.08.290 of the cessation of the exclusive agricultural or approved open space use of a parcel or any portion of a parcel of agricultural land or open space real property the county assessor will add to the tax extended against that portion of the property on the next property tax statement the deferred tax, which is the difference between the taxes which would have been paid or payable on the basis of the agricultural or open space use valuation and the taxes which would have been paid or payable on the basis of the taxable value calculated pursuant to NRS 361.227, for each year in which agricultural or open space use assessment was in effect for the property during the current fiscal year and the preceding six fiscal years.

B. Upon discovery by a county assessor or receipt of notice pursuant to HCC 3.08.290, after thirty days following the date on which a parcel or any portion of a parcel of real property which has received agricultural or open space use assessment ceases to be used exclusively for agricultural use or the approved open space use, the county assessor will add to the tax extended against that portion of the property on the next property tax statement the deferred tax, which is the difference between the taxes that would have been paid or payable on the basis of the agricultural or open space use valuation and the taxes which would have been paid or payable on the basis of the taxable value calculated pursuant to NRS 361.227, for each year in which agricultural or open space use assessment was in effect for the property during the fiscal year in which the property ceased to be used exclusively for agricultural use or approved open space use and the preceding six fiscal years and any subsequent years up to and including the current year and, in addition thereto, assess a penalty equal to twenty percent of the total accumulated deferred tax for each of the years in which the owner failed to give the notice required in HCC 3.08.290.

C. The deferred tax assessed pursuant to subsection (A) or (B) of this section and penalty assessed pursuant to subsection (B) of this section are a perpetual lien until paid as provided in NRS 361.450; but if the property continues to be used exclusively for agricultural use or approved open space use for seven fiscal years after the date of attachment, the lien for that earliest year then expires. The lien is for an undetermined amount until the property is converted and the amount is determined pursuant to subsection (A) or (B) of this section. Any liens calculated and recorded before July 1, 1989, for property that had not been converted will have expired on that date.

D. If agricultural or open space real property receiving agricultural or open space use assessment is sold or transferred to an ownership making it exempt from taxation ad valorem, any such liens for deferred taxes must be canceled.

E. The provisions of this section do not apply to any portion of agricultural or open space real property if the deferred tax and any penalty have been paid pursuant to NRS 361A.265.

F. If there are deferred taxes that have not been paid under the provisions of NRS 361A.265 or this section at the time real property is sold or transferred, the seller must notify the buyer in writing that there is a lien for deferred taxes on the property.

G. The owner of the property as of the date on which the deferred taxes become due pursuant to this chapter is liable for the deferred taxes. (Amended during codification; Ord. 1-8-76 § 1(8-3))