Boulder City Zoning Code
REVIEW OF
CONSTITUTIONAL TAKING ISSUES
§ 153.340 POLICY CONSIDERATIONS; PURPOSE.
(A) There is a policy of the town, 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 lawsuits alleging such issues.
(B) 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.
(C) Consistent with this policy, this subchapter establishes a procedure for the review of actions that may involve the issue of constitutional takings, as well as providing guidelines for such considerations.
(D) This chapter is further intended and shall be construed to objectively and fairly review claims by citizens that a specific government action should require payment of just compensation, while preserving the ability of the town to lawfully regulate real property and fulfill its duties and functions.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1701)
§ 153.341 GUIDELINES ADVISORY.
The guidelines adopted and decisions rendered pursuant to the provisions of this chapter are advisory only, and shall not be construed to expand or limit the scope of the town’s liability for a constitutional taking.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1702)
§ 153.342 REVIEW OF FINAL TOWN DECISION; PROCEDURES.
(A) 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 a final decision of the town.
(B) The following are specific procedures established for such review:
(1) The person requesting a review must have obtained a final and authoritative determination from the town;
(2) Within 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;
(3) The Town Council, or designee of the Town Council, shall immediately set a time to review the decision that gave rise to the constitutional takings claim;
(4) In addition to the written request for review, the applicant must submit the following information:
(a) Name of the applicant requesting review;
(b) Name and business address of current owner of the property, form of ownership, whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture or other and, if owned by a corporation, partnership or joint venture, 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 description of the property taken;
(e) 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 a review and the party from whom the property was acquired;
(f) The nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership, leasehold interest;
(g) Terms (including sale price) or any previous purchase or sale of a full or partial interest in the property in the three years prior to the date of application;
(h) All appraisals of the property prepared for any purpose, including financing, offering for sale, or ad valorem taxation, within the three years prior to the date of application;
(i) The assessed value of and ad valorem taxes paid 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 purchasers to assume the loan;
(k) All listings of the property for sale or rent, prices asked and offers received, if any, within the previous three years;
(l) All studies commissioned by the applicant or agents of the applicant within the previous three years concerning feasibility of development or utilization of the property;
(m) Itemized income and expense statements from the property for the previous three years;
(n) Information from a title policy or other source showing all recorded liens or encumbrances affecting the property; and
(o) The Town Council, or its designee, may request additional information identified to be necessary, in its opinion, to arrive at a conclusion concerning whether there has been a constitutional taking.
(5) An application shall not be deemed to be “complete” until the Town Council, or its designee, certifies to the applicant that all the materials and information required above have been received by the town. The Town Council, or its designee, shall notify the applicant of any missing information and identifying the materials and information necessary to correct the incomplete application;
(6) The Town Council, or its designee, shall hear all the evidence related to and submitted by the applicant and the town;
(7) A final decision on a review of a constitutional takings claim shall be rendered within 14 days from the date the complete application for review has been received by the Town Clerk. The decision of the Town Council, or its designee, regarding the results of the review shall be given in writing to the applicant and the officer, employee, board or commission that rendered the final decision that gave rise to the constitutional takings claim; and
(8) If the Town Council, or its designee, fails to hear and decide the review within 14 days, the decision appealed from shall be presumed to be approved and the constitutional takings claim denied by the Town Council, or its designee.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1703)
§ 153.343 REVIEWING GUIDELINES.
(A) The Town Council, or its designee, shall review the facts and information presented by the applicant to determine whether the action by the town constitutes a constitutional taking as defined in this chapter.
(B) In doing so, it shall consider:
(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 town; and
(3) Is the property and exaction taken roughly proportionate and reasonably related both in nature and in extent to the impact caused by the activities that are the subject of the decision being reviewed.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1704)
§ 153.344 RESULTS OF REVIEW.
After completing the review, the Town Council, or its 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 or commission that made the decision that gave rise to the constitutional takings claim.
(Ord. 46, passed 8-28-2001; Ord. 21D, passed 1-7-2004; Ord. 59, passed 5-8-2008, § 1705)