Chapter 2.80
CONSTITUTIONAL TAKING
Sections:
2.80.010 Purpose.
The purpose of this chapter is to provide advisory guidelines for the City to assist the City in identifying actions that involve physical taking, exaction or damaging of private real property without the payment of just compensation that may raise constitutional taking issues. (Ord. 2003-03 § 1, 2003.)
2.80.020 Definitions.
As used herein, “constitutional taking issues” means actions involving the physical or regulatory taking of private real property by the City that might require compensation to a private real property owner under:
1. The Fifth or Fourteenth Amendment 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 or regulatory taking of private real property by a governmental entity. (Ord. 2003-03 § 2, 2003.)
2.80.030 Guidelines.
The following guidelines should be considered by the City when taking any action that may possibly result in the physical or regulatory taking of private real property. The City should review the following to determine and identify whether a proposed governmental action raises constitutional taking issues:
1. Does the action result in a permanent or inevitably recurring physical occupation of private property?
2. Does the action require a property owner to dedicate property or grant an easement to the City without the payment of just compensation?
3. Does the action create or otherwise impose a permanent or ongoing nuisance, originating on City property, that impacts neighboring lands so that their owners or occupants sustain a special and unreasonable interference with the quiet enjoyment of their property?
4. Does the action interfere with a fundamental attribute of ownership such as the right to reasonable access, the right to light, air and view within the right-of-way of an abutting public street, or the right to exclude others from property?
5. Does the action unreasonably interfere with a separately protected and vested right, such as the right to continue a nonconforming use, the right to have an application reviewed under the law that was in effect when a complete application was submitted, legally issued subdivision plat approvals, building permits or licenses, or other protected property interests?
6. Does the action impose a severe economic burden that is inappropriately unfair when considered in light of (a) the burden placed on the property owner, (b) the nature of the government action and benefit, and (c) the property owner’s investment-backed expectations?
7. Does the action deprive the property owner of all economically viable uses of the property in a situation in which the proposed use does not constitute a nuisance or severe threat to health and safety?
8. Does the action limit the use of private property without substantially advancing a legitimate public interest?
9. Do the conditions, dedications or exactions imposed as a condition of approval of development applications place only fair and roughly proportionate burdens on proposed development, offsetting the burdens that the proposed development places on public utilities, streets and other services but not imposing additional burdens that the community as a whole should bear?
10. Does the action discriminate against property owners, imposing restrictions or burdens on one property owner that other similarly situated property owners do not bear? (Ord. 2003-03 § 3, 2003.)
2.80.040 Analysis.
If the City determines that a governmental action involves constitutional taking issues, the proposed action should be reviewed by the City to analyze the possible taking and to determine the action to be taken. In reviewing the proposed action, the following factors may be analyzed:
1. The effect the potential taking would have on the use or value of the private property;
2. The likelihood that the action may result in a constitutional taking;
3. Any alternatives to the proposed action that would fulfill the City’s lawful objectives and reduce the risk of a constitutional taking;
4. The cost to the City for payment of compensation if a taking is determined;
5. The governmental interest involved and its nexus to the potential taking; and
6. If the action is roughly proportionate or reasonably related to the impact of any proposed development. (Ord. 2003-03 § 4, 2003.)
2.80.050 Appeals.
Any owner of private property whose interest in the property is subject to a physical or regulatory taking by the City, pursuant to a final and authoritative decision or action of the City, may appeal the City’s decision or action by filing a written notice of appeal and statement of the grounds for the appeal in the City Recorder’s office within 30 calendar days from the date of the City’s decision or action. The City Council, or its designee, shall hear all evidence regarding the appeal and render its decision and findings in writing within 14 calendar days from the date the appeal was filed. If the City fails to hear and decide the appeal within 14 calendar days, the City’s decision or action is presumed to be approved. (Ord. 2003-03 § 5, 2003.)
2.80.060 Limitations.
The guidelines set forth herein are advisory only and shall not be construed to expand nor limit the scope of the City’s liability for a constitutional taking. The City shall have no legal liability to any person, firm or entity of any nature whatsoever, and a court may not impose liability upon the City for failure to comply with the provisions of this chapter. (Ord. 2003-03 § 6, 2003.)
2.80.070 Legal action.
A property owner’s failure to appeal the action of the City does not constitute, and may not be interpreted as constituting, a failure to exhaust available administrative remedies or as a bar to bringing formal legal action. (Ord. 2003-03 § 7, 2003.)