Chapter 10.28 - Constitutional Taking Issues


City Code :: Elwood Town Ordinance :: Chapter 10.28 - Constitutional Taking Issues

CHAPTER 10.28

REVIEW OF CONSTITUTIONAL TAKING ISSUES 
 
 
 

        Section: 
         

        10.28.010 Policy Considerations

        10.28.020 Review of Final Town Decision - Procedures

        10.28.030 Reviewing Guidelines

        10.28.040 Results of Review 
         
         

      10.28.010 Policy Considerations 
       

Pursuant to Utah State Code (UBC 63-90), there is an underlying policy in Elwood Town favoring the serious and careful consideration of matters involving Constitutional Taking claims.  There is a desire for fairness to the owner of private property bringing the claim in view of the uncertainty and expense involved in defending law suits alleging such issues. At the same time, the legitimate role of the Town in lawfully regulating real property must be preserved and the public's right to require the dedication or exaction of property consistent with the Constitution. Consistent with this policy, this Chapter establishes procedures for the review of actions that may involve Constitutional Takings as well as providing guidelines for such considerations. 
 

      10.28.020 Review of Final Town Decision - Procedures 
       

Any owner of private real property who claims there has been a Constitutional Taking of private real property by an action of the Town shall request a review of the final decision and action by the Town. 
 

The following are specific procedures established for such a review: 
 

    A. The person requesting a review must have obtained a final and authoritative determination from the Town.

    B. Within thirty (30) days from the date of the Town's final determination that gave rise to the concern that a Constitutional Taking may have occurred, the person requesting the review shall file in writing, in the office of the Town Clerk, a request for review of that decision. A copy shall also be filed with the Town Attorney.

    C. The Town Council, or designee of the Town Council, shall immediately set a time to review the decision that gave rise to the Constitutional Taking’s claim.

    D. In addition to the written request for review, the applicant must submit the following: 
     

    1. Name and address of the applicant requesting review.

    2. Name and/or business address of current owner(s) of the property, form of ownership, and if owned by a corporation, partnership or joint venture, name and address of all principal shareholders or partners.

    3. A detailed description of the grounds for the claim that there has been a Constitutional Taking.

    4. A detailed description of the property taken.

    5. Evidence and documentation as to the value of the property taken, including the date and cost at the date the property was acquired. This should include any evidence of the value of the property before and after the alleged Constitutional Taking, the name of the party from whom purchased, if applicable, including the relationship, if any, between the person requesting the review and the party from whom the property was acquired.

    6. The nature of the protectable interest claimed to be affected such as, but not limited to, fee simple ownership or leasehold interest.

    7. Terms (including sale price) of any previous purchase or sale of a full or partial interest in the property in the three (3) years prior to the date of application.

    8. All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the three (3) years prior to the date of application.

    9. The assessed value of and ad valorem taxes paid on the property for the previous three (3) years.

    10. All information concerning current mortgages or other loans secured by the property, including name of the mortgagor 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 purchaser(s) to assume the loan.

    11. All listings of the property for sale or rent, prices asked and offers received, if any, within the previous three (3) years.

    12. All studies commissioned by the applicant or agents of the applicant within the previous three (3) years concerning feasibility of development or utilization of the property.

    13. For income producing property, itemized income and expense statements from the property for the previous three (3) years.

    14. Information from a title policy or other source showing all recorded liens or encumbrances affecting the property.

    15. The Town Council, or their designee, may request additional information, reasonably necessary in their opinion, to arrive at a conclusion concerning whether there has been a Constitutional Taking. 
     

    E. An application shall not be deemed to be "complete" until the Town Council, or designee, certifies to the applicant that all the materials and information required above have been received by the Town. The Town Council, or designee, shall notify the applicant of any missing information and shall identify the materials and information necessary to correct the incomplete application.

    F. The Town Council, or designee, shall hear all the evidence related to and submitted by the applicant, Town, or any other interested party.

    G. A final decision on the review shall be rendered within fourteen (14) days from the date the complete application has been received by the Town Clerk. The decision of the Town Council, or 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 that gave rise to the Constitutional Taking’s claim.

    H. If the Town Council, or designee, fails to hear and decide the review within fourteen (14) days, the decision appealed from shall be presumed to be approved. 
     

      10.28.030 Reviewing Guidelines 
       

The Town Council, or designee, shall review the facts and information presented by the applicant to determine whether or not the action by the Town constitutes a Constitutional Taking as defined in this Chapter. In doing so, they shall consider: 
 

    A. Whether the physical taking or exaction of the private real property bears an essential nexus to a legitimate governmental interest.

    B. Whether a legitimate governmental interest exists for the action taken by the Town.

    C. Is the property and exaction taken roughly proportionate and reasonably related, both in nature and extent, to the impact caused by the activities that are the subject of the decision being reviewed. 
     

      10.28.040 Results of Review 
       

After completing the review, the Town Council, or designee, shall make a determination regarding the above issues and, where determined to be necessary and appropriate, shall make a recommendation to the officer, employee, Board, Commission, or Council that made the decision that gave rise to the Constitutional Taking’s claim.