Chapter 3.20
CONSTITUTIONAL TAKING
Sections:
3.20.030 Applicability of chapter.
3.20.070 Private property ombudsman.
3.20.010 Purpose.
The purpose of this chapter is to establish a procedure and criteria whereby a constitutional taking claim may be carefully considered in fairness to any private property owner who believes a constitutional taking may have occurred, and in view of the uncertainty and expense involved in defending lawsuits alleging a constitutional taking. Notwithstanding this purpose, the city’s ability to lawfully require dedication or exaction of property consistent with federal and state constitutions shall be preserved. The criteria set forth in this chapter shall be objectively and fairly construed in reviewing any claim that a specific action by the city requires payment of just compensation. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-010.]
3.20.020 Definition.
As used in this chapter, a “constitutional taking claim” or “constitutional taking” means actions by the city involving the physical taking or exaction of private real property that might require compensation to a private real property owner because of:
(1) The Fifth or Fourteenth Amendments of the Constitution of the United States;
(2) Article I, Section 22, of the Utah Constitution; or
(3) Any recent court rulings governing the physical taking or exaction of private real property by a government entity. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-020.]
3.20.030 Applicability of chapter.
Decisions rendered pursuant to the provisions of this chapter shall be advisory, and shall neither expand nor limit the scope of the city’s liability for a constitutional taking. Any reviewing body or person shall not be required to make any determination under this chapter except pursuant to RCC 3.20.050 or as may be required under any applicable state law. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-030.]
3.20.040 Review procedures.
Any owner of private real property who claims such property is subject to a constitutional taking may appeal any final decision made by the city which is applicable to the property. The following procedures shall apply to such appeal:
(1) The appellant shall have obtained a final determination by authorized city personnel concerning the decision for which review is requested.
(2) Within 30 days from the date of the final decision for which review is requested, the appellant shall file the appeal in writing in the office of the city recorder. A copy of the appeal shall be filed with the city attorney.
(3) The city council, or its designee, shall set a time to review the decision that gave rise to the appeal. The city council shall convene to set a time for review within 14 days from the city recorder’s receipt of the appeal.
(4) The appellant shall submit the following information with the appeal:
(a) Name of the appellant.
(b) Name and business address of the current owner(s) of the property, form of ownership, and, if owned by a corporation, partnership or joint venture, the name and address of all shareholders or partners holding a 10 percent or greater interest in the entity.
(c) Detailed statement of the grounds for the appeal.
(d) Detailed description of the property alleged to have been taken.
(e) Evidence and documentation of the value of the property alleged to have been taken, including the date and cost at the date the property was acquired, including evidence of the value of the property before and after the alleged constitutional taking, the name of the party from whom purchased, including the relationship, if any, between the person requesting a review and the party from whom the property was acquired.
(f) Nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership, leasehold interest, etc.
(g) Terms (including sale price) or any previous purchase or sale of a full or partial interest in the property in the three years prior to the date of request for review.
(h) All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the three years prior to the date of application.
(i) Assessed value of any ad valorem taxes on the property for the previous three years.
(j) All information concerning current mortgages or other loans secured by the property, including the name of the mortgagee or lender, current interest rate, remaining loan balance and term of the loan and other significant provisions, including, but not limited to, right of purchasers to assume the loan.
(k) All listings of the property for sale or rent, prices asked and offers received, if any, within the previous three years.
(l) All studies commissioned by the appellant within the previous three years concerning feasibility of development or utilization of the property.
(m) For income-producing property, itemized income and expense statements from the property for the previous three years.
(n) Information from a title policy or other similar source showing all recorded liens or encumbrances affecting the property.
(o) The city council or its designee may request additional information reasonably necessary to determine whether there has been a constitutional taking.
(5) An application shall not be deemed to be complete or submitted until the reviewing body or official certifies to the appellant that all materials and information required in subsection (4) of this section have been received by the city.
(6) The city council or its designee shall hear all the evidence related to and submitted by the appellant, the city, or any other interested party.
(7) A final written decision on the appeal shall be rendered within 14 days after all information required by this chapter has been received by the city recorder, and reviewed by the city council. A copy of the decision shall be given to the applicant and to the officer, employee, board, commission or council that rendered the final decision that gave rise to the appeal.
(8) If the city council or its designee fails to hear and decide the appeal within 14 days, the appeal shall be presumed to be denied. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-040.]
3.20.050 Review criteria.
The city council or its designee shall review the information submitted by the appellant to determine whether or not the action by the city may be a constitutional taking as defined in this chapter. In making such determination, the city council or its designee shall consider whether:
(1) The city has a legitimate governmental interest to support its action;
(2) The city can accomplish the same result through the use of a less intrusive action;
(3) The property owner has been denied all economically viable use of the property;
(4) The action forces the property owner to allow a nonowner to enter the property;
(5) The decision appealed from has an essential nexus to the legitimate governmental interest;
(6) The action taken is roughly proportional, both in nature and extent, to the impact caused by the activities that are the subject of the decision being appealed; and
(7) The city has made an attempt to quantify its findings. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-050.]
3.20.060 Results of review.
Based on the review criteria set forth in RCC 3.20.050, the city council or its designee shall make a determination regarding the appeal and, when it determines to be necessary, shall make a recommendation to the officer, employee, board, commission or council that made the decision that gave rise to the appeal. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-060.]
3.20.070 Private property ombudsman.
Notwithstanding all of the foregoing sections in this chapter, a private property owner may request the Utah State Private Property Ombudsman to mediate or conduct or arrange arbitration for disputes between private property owners and Riverton City as provided in Utah Law. [Ord. 08-22 § 1 (Exh. A). Code 1997 § 8-2-070.]