Chapter 2.45
TAKING OF PROPERTY
Sections:
2.45.050 Review or appeal of action.
2.45.070 Rights of property owner not affected.
Prior legislation: Ord. 95-69.
2.45.010 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 or exaction of private real property that may raise constitutional taking issues. This chapter does not apply when the city formally exercises its power of eminent domain. [Ord. 03-95 § 1, 2003.]
2.45.020 Definitions.
Definitions as used herein:
“Constitutional taking issues” means actions involving the physical taking or exaction of private real property by the city that might require compensation to a private real property owner under:
(a) The Fifth or Fourteenth Amendment to the Constitution of the United States;
(b) Article I, Section 2 of the Utah Constitution; or
(c) Any recent court rulings governing the physical or regulatory taking of private real property by a governmental entity. [Ord. 03-95 § 2, 2003.]
2.45.030 Guidelines.
The following guidelines shall be considered by the city when taking any action that might result in taking of private real property.
(1) Identification. The city should review the following to determine and identify whether a proposed governmental action raises constitutional taking issues:
(a) Does the action result in a permanent physical occupation of private property?
(b) Does the action require a property owner to dedicate property or grant an easement to the city?
(c) Does the action deprive the property owner of all economically viable uses of the property?
(d) Does the action have a severe impact on the property owner’s economic interests?
(e) Does the action deny a fundamental attribute of ownership? [Ord. 03-95 § 3, 2003.]
2.45.040 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 determine the action to be taken.
In reviewing the proposed action, the following factors may be considered:
(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 constitutional taking;
(4) The cost to the city for payment of compensation if taking is determined;
(5) The governmental interest involved and its nexus to the potential taking;
(6) If the action is roughly proportionate or reasonably related to the impact of any proposed development. [Ord. 03-95 § 4, 2003.]
2.45.050 Review or appeal of action.
(1) Review of Decision by Mayor. Any owner of private real property or a real property right who claims there has been an unconstitutional taking of their property, without just compensation, shall petition for a review of a final decision of any city officer, employee, board, commission, or the council. The council may designate the mayor to hear and consider such petitions. The mayor may delegate such responsibility to the city manager.
(2) Review Procedures.
(a) The following procedures for review of a final decision shall be followed:
(i) Final Decision. The person petitioning for review shall obtain a final decision before requesting review.
(ii) Petition for Review. Within 30 days from the date of the final decision, the person requesting the review shall file, in the office of the city recorder, a written petition for review of that decision. A copy shall also be filed with the city attorney.
(iii) Hearing Date. The mayor, or the mayor’s designee, shall set a time to review the decision that gave rise to the petition as soon as reasonably practical. The mayor, or the mayor’s designee, shall hear and consider the evidence related to and submitted by the petitioner, the city or other interested parties. In the discretion of the mayor, or the mayor’s designee, the hearing may be oral or based upon written submittals.
(iv) Initial Filing Information. As part of the petition for review, the petitioner shall submit, at least seven days prior to the date of the review, the following:
(A) The name of the petitioner requesting review;
(B) The name and business address of the current owner of the property; the form of ownership, i.e., whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture or other; and if owned by other than a real person, name and address of all partners or shareholders owning 10 percent or more of the outstanding shares;
(C) A detailed description of the factual and legal grounds for the claim that there has been an unconstitutional taking, without just compensation;
(D) A legal description of the property allegedly taken and a detailed description of the nature of the property; and
(E) A description of the protectable property interest claimed to be affected.
(3) Supplemental Information. If the mayor, or the mayor’s designee, determines that there may be a taking, and additional information is needed, the mayor, or the mayor’s designee, may further require the following to be submitted:
(a) The evidence and documentation as to the value of the property interest claimed taken, including the date and cost at the date the property was acquired. This material should include any evidence of the value of that same property before and after the alleged unconstitutional 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;
(b) The 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 application;
(c) All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the previous three years;
(d) The assessed value of and ad valorem taxes on the property for the previous three years;
(e) All information concerning current mortgages or other loans secured by the property, including the name of the mortgage holder or lender, current interest rate, remaining loan balance and term of the loan and other significant provisions, including but not limited to the right of purchasers to assume the loan;
(f) All listings of the property for sale or rent, price asked and offers received, if any, within the previous three years;
(g) All studies commissioned by the petitioner or agents of the petitioner within the previous three years concerning feasibility of development or utilization of the property;
(h) For income-producing property, itemized income and expense statements from the property for the previous three years;
(i) Information from a title policy or other source showing all recorded liens and encumbrances affecting the property; and
(j) The mayor, or the mayor’s designee, may request additional information reasonably necessary, in their opinion, to arrive at a conclusion concerning the nature of and the value of the alleged unconstitutional taking.
(4) Review Standards. The mayor, or the mayor’s designee, shall review the facts and information presented by the petitioner and determine if the action by the city constitutes an unconstitutional taking. In doing so, the city attorney’s office shall serve as a legal counsel and shall be consulted. The mayor or the mayor’s designee shall review the facts in light of the applicable state and federal constitutional law.
(5) Time for Final Decision. If the mayor, or the mayor’s designee, fails to hear and decide the petition within 14 days after the filing of the petition, the administrative decision of the city officer, employee, board, commission or the council shall be deemed approved; provided, however, the mayor, or the mayor’s designee, may extend the time to reach a decision, not exceeding an additional 120 days following the receipt of the information required pursuant to this chapter, if prior to the expiration of the 14-day period the mayor, or the mayor’s designee, notifies the petitioner, in writing, of such extension.
(6) Results of Review. After completing the review, the mayor, or the mayor’s designee, shall make a determination regarding the petition and, if determined to be necessary and appropriate, make a recommendation to the council or the appropriate office, employee, board or commission. [Ord. 03-95 § 5, 2003.]
2.45.060 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 an unconstitutional taking of a vested property interest. The decision rendered pursuant to the provisions of this chapter is not admissible in court for any purpose other than to demonstrate that the review has been completed, and in no event shall any recommended compensation be admissible into evidence. [Ord. 03-95 § 6, 2003.]
2.45.070 Rights of property owner not affected.
The private property owner need not file the appeal authorized by this chapter before bringing an action in any court to adjudicate claims that are eligible for appeal. A property owner’s failure to appeal the action of a political subdivision does not constitute, and may not be interpreted as constituting, a failure to exhaust available administrative remedies or as a bar to bringing legal action. [Ord. 03-95 § 7, 2003.]