CHAPTER 1.05
CONSTITUTIONAL TAKINGS
Sections:
1.05.005 Purpose.
1.05.010 Guidelines.
1.05.015 Analysis.
1.05.020 Review or Appeal of Action.
1.05.025 Review Procedures.
1.05.030 Review Standards.
1.05.035 Time for Final Decision.
1.05.040 Results of Review.
1.05.045 Guidelines Advisory.
1.05.050 Rights of Property Owner Not Affected.
1.05.005 PURPOSE.
Pursuant to Utah Code Annotated (“UCA”) 63L-4-201, the purpose of this Chapter is to provide advisory guidelines for Land Use Authorities and to assist the City in identifying actions involving a physical taking and/or regulatory taking, collectively referred to as Constitutional Takings. Additionally, this Chapter establishes a procedure for review of actions that may have Constitutional Taking issues pursuant to UCA 63L-4-301.
1.05.010 CONSTITUTIONAL TAKING GUIDELINES.
A. Use of Guidelines. In accordance with UCA 63L-4-201(2), the following guidelines shall be considered by a Land Use Authority for process and when administering in Title I, II, or III, and when the City is taking any action that might result in the physical or regulatory taking of private real property. The City may, or the property owner may, request a review of the guidelines to determine and identify whether a proposed governmental action raises Constitutional Taking issues.
B. Limitations of Guidelines. As stated in UCA 63L-4-201 (3), the guidelines adopted and decisions rendered pursuant to the provisions of the 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, pursuant to Utah Rule of Evidence 408, in no event shall any recommended compensation be admissible into evidence.
C. Property Ombudsman’s Assistance. As stated in UCA 13-43-203 (b), the Office of the Property Rights Ombudsman is to assist state agencies and local governments in developing the guidelines required by Title 63L, Chapter 4, Constitutional Taking Issues. The guidelines contained in this Section are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. The guidelines below are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law.
1. Taking. Taking is where private property is so used or restricted that compensation is due to the property owner, but no compensation or inadequate compensation is offered. Generally, a taking occurs when one property owner, or a relatively few property owners, are forced to bear a significant burden so that the public in general, or a relatively large number of property owners, can receive a benefit.
2. Basic Elements of a Taking. The basic elements of a taking include:
a. An Action, (but not a negligent, emergency or other exempt action);
b. To Occupy, Damage, or Interfere With;
c. Protected Private Property;
d. By a Government Entity or Private Entity Acting Under Government Authority;
e. For a Public Purpose; and
f. Without the Payment of Just Compensation.
3. Physical Takings.
a. Physical Occupation of the Property. A physical occupation of property by the government or someone acting with government authority such as a utility or a contractor working for the government is always a taking if the occupation is permanent and advances a public purpose.
1. An example of physical occupation of property includes placing a cable box on the outside of an apartment building. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
2. An example of a physical occupation of property includes allowing waters to occupy private property repeatedly or permanently. Colman v. Utah State Land Board, 795 P.2d 622 (1990), Pigs Gun Club v. Sanpete County 2002 UT 17.
3. An example of a physical occupation of property includes requiring the landowner to endure continual trespass or public access on private lands. Dolan v. Tigard, 512 U.S. 374 (1994).
b. Physical “Damaging” by Government-Created Nuisance. When some government activity or action rises to the level of an actionable nuisance, which usually involves some government activity on public property, that is near to or adjoins the land that is claimed to suffer an unconstitutional burden. The issue in such cases is whether the government activity is so unreasonable as to constitute an actionable interference with the quiet enjoyment of property.
1. An example of physical damaging by government-created nuisance includes airport corridors – noise and vibration. Katsos v. Salt Lake City Corp. 624 F. Supp. 100 (U.S. Dist. Ct. Utah, 1986).
2. An example of physical damaging by government-created nuisance includes nuisances in general. See Logan City School District v. Croft, 13 Utah 2d 310, 373 P.2d 697 (1962). (Schoolyard noises not a factor in damages in eminent domain action.)
c. Physical Interference with a Protected Property Right. When a physical action interferes with one of the specific aspects of property ownership that has been listed as separately protected.
1. An example of physical interference with a protected property right includes right to air, light and view across a street, such as building an overpass in the street in front of residential lots. Utah State Road Comm. v. Miya. 526 P.2d 926 (1974).
2. An example of physical interference with a protected property right includes loss of functionality due to changes in curb cuts on a city street. Three D. Corp. v. Salt Lake City. 752 P.2d 1321 (UT Ct. App. 1988) Carpet Barn v. State of Utah 795 P.2d 1138 (UT Ct. App. 1990)
3. An example of physical interference with a protected property right includes right to reasonable access. Hampton v. State ex rel. Road Commission, 21 Utah 2d 342, 445 P.2d 708 (1968).
d. Regulations that Interfere with a Vested Right. Once a property owner has established the right to a particular use of land, the government may not revoke that right.
1. An example of regulations that interfere with a vested right includes nonconforming uses, which were legal when the regulations were passed, but would be illegal under existing law, also have protected status as vested rights if not abandoned or amortized under the terms of an amortization ordinance. See U.C.A. 10-9-103. Cases considering the establishment and continuation of nonconforming uses include Rock Manor Trust v. State Rd. Comm’n 550 P.2d 205 (Utah 1976) (nonconforming use survives destruction of the building by fire), Caster v. West Valley City, 2001 UT App 220 (nonconforming use not abandoned if any of several alternative activities defined as part of that use are continued) and Hugoe Trucking v. Woods Cross, 1999 UT App 281 (since use was established before an Ordinance, it has vested and may continue).
4. Regulatory Takings:
a. Regulations Which Impose Disproportionate Burdens. An action may be unconstitutional if it is deemed unfair in an analysis of three factors: (1) the burden placed on the property owner, (2) the nature of the government action and benefit, and (3) the property owner’s investment-backed expectations.
1. An example of regulations which impose disproportionate burdens include denial of right to build office tower over historic landmark not a taking, when weighing all factors involved in an ad hoc inquiry. Penn Central Transp. Co. v. City of New York, 98 S. Ct. 2646 (1978).
2. An example of regulations which impose a disproportionate burden include where there was no deprivation of all economic value in wetlands case, the Court remanded for a takings analysis based on the “Penn Central Balancing Test”. See concurring opinion by Justice O’Conner regarding the Penn Central balancing test in Palazzolo v. State of Rhode Island 121 S. Ct. 2448 (2001). A thirty-two month development moratorium was not held to be a taking because, after balancing all factors involved, the delay involved was not unreasonable. The burden of this particular moratorium must be weighed in light of the significant community value represented by the purity of the waters of Lake Tahoe. Preservation of the quality of the lake would eventually enhance both property values and the public good. Adequate time must be taken to carefully plan for community development, even if a complete denial of all use is imposed for a finite and reasonable period. Tahoe Sierra Preservation Council v. Tahoe Regional Planning Authority. 122 S. Ct. 1465, (2002).
b. Regulations that Interfere with a Protected Property Right. When an ordinance or statute or other government action results in an unreasonable interference with a protected aspect of property ownership.
1. An example of regulations that interfere with a protected property right include right to pass property on to heirs. Hodel v. Irving, 481 U.S. 704 (1987).
1.05.015 PRE-DECISION REVIEW.
Based upon the guidelines contained in 1.05.010 and/or other good cause, the Land Use Authority or Property Owner believing that a proposed governmental action may involves a Constitutional Taking issue, may request a Pre-Decision Review of the proposed governmental action before a final decision is made by a Land Use Authority. The Pre-Decision Review made be at the request of either the Land Use Authority or the property owner’s. The objective of reviewing the proposed governmental action before a final decision is made by a Land Use Authority is to avoid decisions that may result in Unconstitutional Takings.
1.05.020 PRE-DECISION REVIEW BODY DESIGNATED.
The Office of the Property Rights Ombudsman is designated as the Pre-Decision Review Body. As enumerated in UCA 13-43-203 the duties of the Office of the Property Rights Ombudsman include:
A. At the request of a local government, assist the local government, in analyzing actions with potential takings implications or other land use issues (see UCA 13-43-203 (b));
B. At the request of a real property owners advise them as to if they have a legitimate potential or actual takings claim against a local government entity or have questions about takings, eminent domain, and land use law (See UCA 13-43-203 (d)); and
C. Identify local government actions that have potential takings implications and, if appropriate, advise the local government entities about those implications (see UCA 13-43-203 (e).
1.05.025 PRE-DECISION REVIEW PROCEDURES.
The following procedures for Pre-Decision Review shall be followed:
A. Pre-Decision. The Land Use Authority or property owner shall file a petition for a Pre-Decision Review before a final decision is made by the Land Use Authority.
B. Filing a Petition. The Land Use Authority or property owner requesting a Pre-Decision Review shall file a petition with the Office of the Property Rights Ombudsman. The application, supporting materials, and fee shall be as required the Office of the Property Rights Ombudsman.
C. Type of Review. In conjunction with the petitioner, the Office of the Property Rights Ombudsman may decide what type of review shall be appropriate. The type of review may include:
1. Arbitration or Meditation. According to UCA 13-43-204, if requested by the private property owner or Development Review Committee and if otherwise appropriate, the Office of the Property Rights Ombudsman shall mediate, conduct or arrange arbitration for, a dispute resolution between the owner and the City involving a Constitutional Taking. If arbitration or mediation is requested by a private property owner and arranged by the Office of the Property Rights Ombudsman, the City shall participate in the mediation or arbitration as if the matter were ordered to mediation or arbitration by a Court (see UCA 13-43-204 (2)). UCA 13-43-204 prescribes the process that the Office of the Property Rights Ombudsman shall follow in arbitrating or mediating disputes.
2. Advisory Opinion. According to UCA 13-43-205, if requested by the private property owner or Development Review Committee, and if otherwise appropriate, the Office of the Property Rights Ombudsman shall prepare an advisory opinion associated with the proposed governmental action involving a Constitutional Taking. UCA13-43-206 prescribes the process that the Office of the Property Rights Ombudsman shall follow in preparing an advisory opinion.
D. Standard of Review. The Office of the Property Rights Ombudsman shall review the facts and information presented by the parties and determines if the proposed governmental action by the Land Use Authority constitutes an Unconstitutional Taking. The Office of the Property Rights Ombudsman shall review the facts in light of the applicable State and Federal constitutional law and case law.
E. Process Timeline. The processing timeline for a Pre-Decision Review shall be according to the Office of the Property Rights Ombudsman, timelines prescribed by state law, and the parties involved in the matter. The City shall work with due diligence in preparing information requested and participating in the process.
1.05.030 POST-DECISION REVIEW.
Based upon the guidelines contained in 1.05.010 and/or other good cause, the Land Use Authority or Property Owner believing that a governmental action may involve a Constitutional Taking issue, may request a Post-Decision Review of the governmental action. The Post-Decision Review made by the property owner. The objective of reviewing the governmental action after a final decision is made by a Land Use Authority is to avoid the time and costs associated with legal disputes.
1.05.035 POST-DECISION REVIEW BODY DESIGNATED.
The City Attorney shall arrange for an attorney licensed in the state of Utah to be the Post-Designated Review Body. When feasible the City Attorney may confer with the property owner on a mutually agreeable attorney. The City Attorney’s selection of an attorney shall be the final decision in designating the review body (hereafter referred to as the “Post-Designated Review Body”).
1.05.040 POST-DECISION REVIEW PROCEDURES.
The following procedures for Post-Decision Review shall be followed:
A. Post-Decision. The property owner shall file a petition for a Post-Decision Review after a final decision is made by the Land Use Authority.
B. Filing a Petition. Pursuant to UCA 63L-4-201(2), within thirty (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 a final decision that may involve a Constitutional Taking issue. As part of the petition for review, the property owner shall submit the following:
1. The name of the petitioner requesting review;
2. 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 ten percent or more of the outstanding shares;
3. A detailed description of the factual and legal grounds for the claim that here has been an Unconstitutional Taking, without just compensation;
4. A legal description of the property allegedly taken and a detailed description of the nature of the property; and
5. A description of the protectable property interest claimed to be affected.
6. Any information that the property owner believes would support their claim of the alleged Unconstitutional Taking.
7. The Post-Designated Review Body may request additional information reasonably necessary, in their opinion, to arrive at a conclusion concerning the nature of the alleged Unconstitutional Taking.
8. Payment of the applicable fee as set by Resolution of the City Council.
C. Type of Review. The Post-Designated Review Body shall hear and consider the written and oral evidence related to, and submitted by, the petitioner, the City or other interested parties.
D. Standard of Review. The Post-Designated Review Body shall review the facts and information presented by the petitioner and determines if the action by the Land Use Authority constitutes an Unconstitutional Taking. The Post-Designated Review Body shall review the facts in light of the applicable State and Federal constitutional law and case law.
E. Process Timeline. The Post-Designated Review Body shall set a time to review the decision that gave rise to the petition as soon as reasonably practical. Pursuant to UCA 63L-4-301 (2) (a) (iii), if the Post-Designated Review Body fails to hear and decide the petition within fourteen (14) days after the filing of the petition, the decision of the Land Use Authority is presumed to be approved.
F. Results of Review. After completing the review, the Post-Designated Review Body shall make a determination regarding the petition and, if determined to be necessary and appropriate, and may remand the final decision back to the Land Use Authority with their recommendation for reconsideration.
1.05.045 APPEALS.
A. Pre-Decision Reviews. There is no appeal process with regard to a Pre-Decision Review.
B. Post-Decision Reviews. The Appeal Authority and deadline for filing an appeal of a Post-Decision Review shall be as follows:
1. First Appeal. Person has thirty (30) days to appeal the decision of the City Council to District Court. (See Utah Code 10-9a-801)
2. Second Appeal. None.
1.05.050 RIGHTS OF PROPERTY OWNER NOT AFFECTED.
Pursuant to UCA 63L-4-301 (2) (b), the private property owner need not file the appeal authorized by this section before bringing an action in any court to adjudicate claims that are eligible for appeal. Pursuant to UCA 63L-4-301 (2) (c), 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 13-05