CHAPTER 14
CONSTITUTIONAL TAKINGS
Sections:
2-14-101 Policy Considerations.
2-14-105 Reviewing Guidelines.
2-14-101 Policy Considerations.
There is an underlying policy in the City strongly favoring the careful consideration of matters involving constitutional taking claims, in fairness to the owner of private property bringing the claim and in view of the uncertainty and expense involved in defending litigation alleging such issues. At the same time, the legitimate role of government in lawfully regulating real property and the public’s right to require the dedication or exaction of property consistent with the Constitution of the United States of America and the Constitution of the State of Utah must be preserved. Consistent with this policy, it is desired that a procedure be established for the review of actions that may involve the issue of a constitutional taking. These provisions are to assist the City, its officials, employees, boards, commissions and councils in considering decisions that may involve constitutional takings. It is intended that a procedure for such a review be provided, as well as guidelines for such considerations. This chapter is further intended and shall be construed to objectively and fairly review claims by property owners that a specific government action should require payment of just compensation, yet preserve that ability of the City to lawfully regulate real property and fulfill its other duties and functions.
(Adopted by Ordinance No. 1-95)
2-14-102 Definitions.
(1) “Constitutional taking” means any action by the City involving the physical taking or exaction of private real property that may require compensation to the owner of that property because of: (a) the Fifth or Fourteenth Amendment of the Constitution of the United State of America; (b) Article One, Section Twenty-Two of the Constitution of the State of Utah; or (c) any court ruling governing the physical taking or exaction of private real property by a governmental entity.
(2) Actions by the City involving the physical taking or exaction of private real property is not a constitutional taking if the physical taking or exaction bears an essential nexus to a legitimate governmental interest and is roughly proportional and reasonably related, on an individualized property basis, both in nature and extent, to the impact of the proposed development on the legitimate government interest.
(Adopted by Ordinance No. 1-95)
2-14-103 Guidelines Advisory.
The guidelines adopted and decisions rendered pursuant to the provisions of this chapter are advisory, and shall not be construed to expand or limit the scope of the City’s liability for a constitutional taking. The reviewing body or person shall not be required to make any determination under this chapter except pursuant to Section 2-14-104.
(Adopted by Ordinance No. 1-95)
2-14-104 Review of Decision.
Any owner of private real property who claims there has been a constitutional taking of the owner’s private real property shall request a review of a final decision of any officer, employee, board, commission, or council of the City. The following are specific procedures established for such a review:
(1) The person requesting the review shall have obtained a final determination from which the review is requested.
(2) Within thirty (30) days from the date of the final decision that gave rise to the claim of a constitutional taking, the person requesting the review shall file in writing, in the office of the City Recorder, a request for review of that decision. A copy of the request shall also be filed with the City Attorney.
(3) The City Council, or an individual designated by the City Council, shall immediately set a time to review the decision that gave rise to the constitutional takings claim.
(4) The written request for review shall include the following:
(a) name and address of the applicant, including telephone number;
(b) name and business address of the current owner of the real property, form of ownership, and if owned by a corporation, partnership, joint venture, limited liability company, or other entity, the name and address of all principal shareholders or partners;
(c) a detailed description of the grounds for the claim that there has been a constitutional taking;
(d) a detailed description of the property alleged to have been taken;
(e) evidence and documentation as to the value of the property allegedly taken, including the date and cost at the date the property was acquired. The documentation should include any evidence of the value of the same property before and after the alleged constitutional taking. Documentation must also include the name of the party from whom purchased, the relationship, if any, between the person requesting the 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 or leasehold interest;
(g) terms, including sale price, of any previous purchase or sale of a full or partial interest in the property during the three years prior to the date of the application;
(h) all appraisals of the property prepared for any purchase, including financing, offering for sale, or ad valorem taxation, within three years prior to the date of the application;
(i) the assessed value of and 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 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 the purchasers to assume the loan;
(k) all listings of the property for sale or rent, price asked and offers received, if any, within the three (3) years prior to the application for review;
(l) all studies commissioned by the petitioner or agents of the petitioner within three years prior to the application concerning feasibility of development or utilization of the property;
(m) For income-producing property, itemized income and expense statements for all activities conducted on the property for a period of three years prior to the application;
(n) a preliminary title report or similar report showing all recorded liens or encumbrances affecting the property; and
(o) such additional information as the City Council or its designee may request which is reasonable necessary to arrive at a conclusion concerning whether there has been a constitutional taking.
(5) An application shall not be deemed to be “complete” or “submitted” until the City Recorder or City Council or other reviewing official certifies to the applicant that all the materials and information required have been received by the City. The City Recorder or City Council or other reviewing officer shall promptly notify the applicant of any incomplete application.
(6) The City Council or an individual or body designated by it shall hear all the evidence relating to and submitted by the applicant and any other interested party.
(7) A final decision on the review shall be rendered within fourteen (14) days from the date the complete application for review has been received by the City Recorder. The decision of the City Council or its designee regarding the results of the review shall be given in writing to the applicant and the officer, employee, board, commission, or council that rendered the final decision which gave rise to the constitutional taking claim.
(8) If the City Council or its designee fails to hear and decide the review within the fourteen-day period, the decision appealed from shall be presumed to be approved.
(Adopted by Ordinance No. 1-95)
2-14-105 Reviewing Guidelines.
The City Council or its designee shall review the facts and information presented by the applicant to determine whether or not the action by the City constitutes a constitutional taking as defined in this chapter. In doing so the City Council or its designee shall consider the following:
(1) Whether the physical taking or exaction of the private real property bears an essential nexus to a legitimate governmental interest.
(2) Whether a legitimate governmental interest exists for the action taken by the City.
(3) Whether the property and the exaction taken are roughly proportional and reasonably related, on an individual property basis, both in nature and extent to the impact caused by the activities that are the subject of the decision being reviewed.
(Adopted by Ordinance No. 1-95)
2-14-106 Results of Review.
After completing the review, the reviewing person or officer shall make a determination regarding the issues specified in Section 2-14-105 and shall, where determined to be necessary and appropriate, make a recommendation to the officer, employee, board, commission, or council that made the decision which gave rise to the constitutional taking claim.
(Adopted by Ordinance No. 1-95)