CMA Deed Modification Policy Issue Date: TBD Version Number: 1.0 Page 1 Clark County Cooperative Management Area (CMA) Deed Modification Policy Policy Number: CMA-1.0 Effective Date: 5/7/13 Revised: New Subject: CMA Deed Modification Policy SUMMARY Previous CMA land that was conveyed to private parties contained certain covenants, conditions and restrictions (CC&Rs) to prohibit development of uses considered incompatible with aircraft noise exposure in those areas. Incompatible and compatible uses were defined by both the Cooperative Management Agreement (BLM Agreement) between Clark County and The United States Department of Interior - Bureau of Land Management (BLM), dated November 4, 1992, and the Federal Aviation Regulations Part 150 – Airport Noise Compatibility Planning program (FAR Part 150). On October 19, 1998, a new public law, The Southern Nevada Public Land Management Act of 1998 (SNPLMA), provided for the transfer of the CMA lands to Clark County with requirements that (1) any lands sold, leased, or otherwise conveyed be restricted to compatible uses as defined in both the BLM Agreement and FAR Part 150; and (2) fair market value (FMV) be received; and (3) gross proceeds from all conveyances be distributed as follows: 85% to the BLM Special Account, 5% to the State of Nevada for the general education program, and 10% to Clark County Department of Aviation for airport development and the noise compatibility program. Subsequently, the following changes in circumstances occurred: 1. Noise contours surrounding McCarran International Airport changed and were codified into the Clark County Development Code on June 4, 2008. 2. BLM terminated the BLM Agreement effective October 1, 2011. 3. The list of incompatible and compatible uses for the CMA was modified on November 30, 2011 and February 6, 2013 in accordance with FAR Part 150. As a result of the termination of the BLM Agreement, Clark County is now only required to follow FAR Part 150 with regard to the definition of incompatible and compatible uses by noise contour versus those listed in the BLM Agreement. This policy enables CMA landowners to apply for a modification to the CC&Rs originally recorded against eligible property to match the current approved compatible uses established for each noise contour within the CMA.
Previous CMA land that was conveyed to private parties contained certain covenants, conditions and restrictions (CC&Rs) to prohibit development of uses considered incompatible with aircraft noise exposure in those areas. Incompatible and compatible uses were defined by both the Cooperative Management Agreement (BLM Agreement) between Clark County and The United States Department of Interior - Bureau of Land Management (BLM), dated November 4, 1992, and the Federal Aviation Regulations Part 150 – Airport Noise Compatibility Planning program (FAR Part 150).
On October 19, 1998, a new public law, The Southern Nevada Public Land Management Act of 1998 (SNPLMA), provided for the transfer of the CMA lands to Clark County with requirements that (1) any lands sold, leased, or otherwise conveyed be restricted to compatible uses as defined in both the BLM Agreement and FAR Part 150; and (2) fair market value (FMV) be received; and (3) gross proceeds from all conveyances be distributed as follows: 85% to the BLM Special Account, 5% to the State of Nevada for the general education program, and 10% to Clark County Department of Aviation for airport development and the noise compatibility program.
Subsequently, the following changes in circumstances occurred:
1. Noise contours surrounding McCarran International Airport changed and were codified into the Clark County Development Code on June 4, 2008.
2. BLM terminated the BLM Agreement effective October 1, 2011.
3. The list of incompatible and compatible uses for the CMA was modified on November 30, 2011 and February 6, 2013 in accordance with FAR Part 150.
As a result of the termination of the BLM Agreement, Clark County is now only required to follow FAR Part 150 with regard to the definition of incompatible and compatible uses by noise contour versus those listed in the BLM Agreement.
This policy enables CMA landowners to apply for a modification to the CC&Rs originally recorded against eligible property to match the current approved compatible uses established for each noise contour within the CMA.
This policy becomes effective upon the date of approval by the Board of County Commissioners. CMA landowners will be eligible to apply for a modification for a limited period of time as defined under the below section entitled “Definitions.”
Policy
POLICY STATEMENT This document describes the responsibilities, policies, and procedures to be followed by Clark County as it relates to requests received from owners of CMA land to modify their subject property CC&Rs to match the currently approved compatible uses for each noise contour within the CMA. Clark County is not obligated to remove any restrictions. Any modified CC&Rs are not intended to promise or guarantee that the proposed use will be allowed. Any CMA landowner obtaining a modification of a parcel's CC&Rs must still apply for and obtain all land use and zoning approvals by making the normal applications and following the established procedures applicable to all Clark County landowners. Any CMA land sold or otherwise conveyed with an appraisal date of February 6, 2013 or later will have CC&Rs recorded against it which contain the current definition of “Compatible Uses.”
BACKGROUND
Pursuant to the SNPLMA, Clark County received over 5,000 acres from the BLM located within the CMA. The CMA boundaries were based upon the forecasted 1992 60 DNL and higher noise contours as determined by the FAR Part 150 noise study, adopted in 1989. An updated noise study forecasted new noise contours for 2017 which were codified into the Clark County Development Code on June 4, 2008. The 2017 noise contours are significantly smaller than the 1992 noise contours, due in large part to advances in aircraft technology. The smaller noise contours resulted in approximately 3,604 acres of CMA land falling outside the new 60 DNL noise contour (Exhibit “A”). Approximately 1,111 of these acres were conveyed with the original CC&Rs. Overall, roughly 571 parcels (totaling 2,241 acres) have been conveyed with the original CC&Rs throughout the entire CMA. Of those conveyed parcels, records show that approximately 216 of the parcels (totaling 1,194 acres) are still vacant land. In compliance with the current FAR Part 150 noise study, the compatible and incompatible uses for each noise contour have been updated. SNPLMA requires Clark County to receive fair market value for property rights sold, tranferred, or otherwise conveyed. It is a requirement of SNPLMA that Clark County manage the CMA lands in accordance with FAR Part 150.
APPLICABILITY This policy pertains to qualifying CMA property that was sold, transferred, or otherwise conveyed with an appraisal date of February 5, 2013 or earlier. Previously imposed restrictions may only be modified to permit uses now defined as “Compatible Uses” for a particular property. These compatible uses are those deemed to be in conformance with FAR Part 150.
DEFINITIONS Fair Market Value - The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition are the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby:
i. Buyer and seller are typically motivated;
ii. Both parties are well informed or well advised, and acting in what they consider their own best interests;
iii. A reasonable time is allowed for exposure in the open market;
iv. Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and
v. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.
Deed Modification Fair Market Value - The appraised present day difference between the value of the parcel with the original CC&Rs and the value of the parcel with modified CC&Rs.
Submarkets - For the purposes of this policy, the CMA has been divided into the submarkets described below and shown on the attached submarket map (Exhibit “B”). Property that has a zoning classification of Limited Resort and Apartment (H-1) and/or planned land use that allows H-1 zoning is excluded from and ineligible for a submarket valuation and must be valuated under Process B – Subject Property Appraisal.
Submarket 1 – The area outside the 60 DNL noise contour, generally west of Tenaya.
Submarket 2 – The area outside the 60 DNL noise contour, between Valley View and Tenaya.
Submarket 3 – The area outside the 60 DNL noise contour, east of Decatur, south of Windmill.
Submarket 4 – The area within the noise contours.
Application Time Period - CMA landowners shall only have a limited time period to apply for a modification as follows:
Process A – Submarket Value – a six (6) month time period to begin once the submarket values have been established and end 180 days thereafter.
Process B – Subject Property Appraisal – time period to begin on the date this policy is approved and end on the same date as the Process A – Submarket Value described above.
Deed Restriction Modification applications submitted at any time during the six (6) month Deed Restriction Modification process period will be taken through to completion. The close of the Deed Restriction Modification process period will not prevent an application that is in the middle of the process from being completed.
County’s Designated Representative (CDR) - the Board of County Commissioners has authorized the Director of Real Property Management or its designee to sign all documents necessary to complete the transactions under this policy and serve as the CDR for all approvals and actions within this policy unless otherwise stated.
RESPONSIBILITY CMA Landowner 1. Submit a Deed Modification Request application and filing fee to Department of Aviation. 2. Pay all associated fees: application filing, research, title report, appraisal (if applicable),
transaction and Deed Modification Fair Market Value, as applicable. Certain fees must be presented in the form of certified funds.
3. Provide consent for and release of liability to appraiser and Clark County to access the subject property.
4. Disclose property conditions and material information to appraiser and Clark County, if applicable.
5. Cooperate with appraiser and Clark County during this process.
Department of Aviation 1. Review Deed Modification Request applications to confirm noise contour, current day
compatible uses, and payment status of subject property taxes. 2. For qualifying applications, submit a work order and new CC&Rs to Real Property
Management. 3. Collect application filing, research, title report, transaction, and appraisal fees from applicant.
Real Property Management 1. As needed, obtain title report, order appraisal, conduct appraisal pre-work meetings,
coordinate appraiser site visit, review appraisal and advise property owner of the results of the appraisal.
2. Collect the Deed Modification Fair Market Value in the form of certified funds, as applicable.
3. For applications using Process B – Subject Property Appraisal, process a Board of County Commissioner agenda item for approval and authorization to modify the subject property’s CC&Rs.
4. Record the new CC&Rs to supersede the original recorded document.
Board of County Commissioners 1. For applications received requesting Process B – Subject Property Appraisal, approve and
authorize Real Property Management to receive the Deed Modification Fair Market Value and record the new CC&Rs through the agenda process.
PROCEDURE Process A – Submarket Value 1. Clark County staff (Staff) will identify each submarket within the CMA boundary. For each
submarket, Staff will order one (1) independent appraisal from three (3) separate appraisers on three (3) different parcels or groups of contiguous parcels and average the values to create a single per square foot value to represent the Deed Modification Fair Market Value of the specific submarket. Real Property Management will select the parcels to be appraised within each submarket and obtain title reports for those parcels. Appraisers to be used for this process are:
1. Mark Mummey 2. Heidi Meidenbauer 3. Tio DiFederico 4. Glenn Anderson 5. Glenn Rigdon 6. Matt Lubawy
The submarket value shall be valid for a six (6) month period from the date the values are established. CMA landowners may only apply for this submarket value during the six (6) month period.
2. CMA landowners may submit a Deed Modification Request – Submarket Value application to Department of Aviation along with the filing fee for consideration. CMA landowners may submit a single application for contiguous parcels under the same ownership.
3. Department of Aviation will review the application to determine the property’s eligibility for a deed modification and which of the original CC&Rs may be modified based on the property’s location within the CMA boundary. To be eligible, the subject property taxes must be paid to date and remain current with the Clark County Assessor’s office. Should the property be eligible for a deed modification, Department of Aviation will proceed to collect a research fee based on the fee structure defined in Clark County Ordinance 20.15.010[d]. Should the subsequent cost of the title report and the Real Property Management transaction fee for processing the modification exceed the initial research fee paid to the Department of Aviation, the difference will be collected from the CMA landowner before advancing to the next step in the process.
4. Department of Aviation will submit a work order to Real Property Management. The new CC&Rs document will be attached to the work order.
5. Real Property Management may obtain the title report for the application. CMA landowners may provide Clark County a title report of the subject property if the report is dated ninety (90) days or less from the time their Deed Modification Request application is received.
6. For CMA landowners requesting to pay the established submarket value, Real Property Management will calculate the Deed Modification Fair Market Value based on the original square footage of the subject property at the time it was conveyed by Clark County.
7. CDR will receive the Deed Modification Fair Market Value in the form of certified funds and record the new CC&Rs to supersede the original CC&Rs. CMA landowner is required to pay all applicable fees prior to the recordation of the new CC&Rs.
8. CMA landowners shall not be entitled to a refund when the established submarket value of the subject property “as if the CC&Rs are modified” is equal or less than the current Fair Market Value of the subject property with the “as is CC&Rs unmodified.”
Process B – Subject Property Appraisal Process B only applies to Properties that have a zoning classification of Limited Resort and Apartment (H-1) and/or planned land use that allows H-1 zoning. 1. Staff will order three (3) independent appraisals from three (3) separate appraisers on the
subject property. The average values of the three appraisals will be used to determine the Deed Modification Fair Market Value of the subject property. Appraisers to be used for this process are:
1. Mark Mummey 2. Heidi Meidenbauer 3. Tio DiFederico 4. Glenn Anderson 5. Glenn Rigdon 6. Matt Lubawy
2. CMA landowners may submit a Deed Modification Request – Subject Property Appraisal
application to Department of Aviation along with the filing fee for consideration. The application will contain consent for and release of liability to appraisers and Clark County to access the subject property. CMA landowners will not have the right to challenge the appraisal value of their subject property. CMA landowners may submit a single application for contiguous parcels under the same ownership.
3. Department of Aviation will review the application to determine the property’s eligibility for a deed modification and which of the original CC&Rs may be modified based on the property’s location within the CMA boundary. To be eligible, the subject property taxes must be paid to date and remain current with the Clark County Assessor’s office. Should the property be eligible for a deed modification, Department of Aviation will proceed to collect a research fee based on the fee structure defined in Clark County Ordinance 20.15.010[d]. Should the subsequent cost of the title report, appraisal, and the Real Property Management transaction fee for processing the modification exceed the initial research fee paid to the Department of Aviation, the difference will be collected from the CMA landowner before advancing to the next step in the process.
4. Department of Aviation will submit a work order to Real Property Management. The new CC&Rs document will be attached to the work order.
5. Real Property Management may obtain the title report for the subject property. CMA landowners may provide Clark County a title report of the subject property if the report is dated ninety (90) days or less from the time their Deed Modification Request application is received.
6. Real Property Management will order the three appraisals, conduct the appraisal pre-work meeting, coordinate the appraiser site visit, and review the appraisals.
7. Real Property Management will transmit the appraisal to the CMA landowner with a statement of valuation of deed restriction. The CMA landowner shall have sixty (60) days
from the date of receipt of the appraisal to accept the appraisal value. For appraisals accepted within the allotted time period, Real Property Management will process an agenda item to request the Board of County Commissioners approve and authorize (Board Approval) Staff to receive the Deed Modification Fair Market Value in the form of certified funds and record the new CC&Rs to supersede the original CC&Rs. Once Board Approval has been received, the CMA landowner shall have seven (7) calendar days to submit the Deed Modification Fair Market Value to Real Property Management. The CMA landowner is required to pay all applicable fees prior to the recordation of the new CC&Rs. Appraisals not accepted within the allotted time period will require submittal of a new Deed Modification Request application and all applicable fees (including the appraisal fees). CMA landowners shall not be entitled to a refund when the appraised value of the subject property “as if the CC&Rs are modified” is equal or less than the current Fair Market Value of the subject property with the “as is CC&Rs unmodified.”
Related Information
Referenced/Related Documents: Manager’s Information Report Number 5561, dated November 30, 2011 Interim Cooperative Management Agreement, dated November 4, 1992 Southern Nevada Public Land Management Act of 1998, dated October 19, 1998 Memorandum of Agreement between Clark County and Bureau of Land Management, dated October 5, 2004
