Elwood City Zoning Code

REVIEW OF

CONSTITUTIONAL TAKING ISSUES

§ 155.425 POLICY CONSIDERATIONS.

Pursuant to state code (UBC 63L-4-201), there is an underlying policy in the city 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 city 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 subchapter establishes procedures for the review of actions that may involve constitutional takings as well as providing guidelines for such considerations.

(Ord. 2008-001, passed - -2008)

§ 155.426 REVIEW OF FINAL CITY 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 city shall request a review of the final decision and action by the city.

(B) The following are specific procedures established for such a review.

(1) The person requesting a review must have obtained a final and authoritative determination from the city.

(2) Within 30 days from the date of the city’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 City Clerk, a request for review of that decision. A copy shall also be filed with the City Attorney.

(3) The City Council, or designee of the City Council, shall immediately set a time to review the decision that gave rise to the constitutional taking’s claim.

(4) In addition to the written request for review, the applicant must submit the following:

(a) Name and address of the applicant requesting review;

(b) 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;

(d) A detailed 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 the 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 or leasehold interest;

(g) Terms (including sale price) of 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 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;

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

(n) Information from a chapter policy or other source showing all recorded liens or encumbrances affecting the property; and

(o) The City Council, or its designee, may request additional information, reasonably necessary in their opinion, to arrive at a conclusion concerning whether there has been a constitutional taking.

(5) (a) An application shall not be deemed to be complete until the City Council, or designee, certifies to the applicant that all the materials and information required above have been received by the city.

(b) The City Council, or designee, shall notify the applicant of any missing information and shall identify the materials and information necessary to correct the incomplete application.

(6) The City Council, or designee, shall hear all the evidence related to and submitted by the applicant, city, or any other interested party.

(7) (a) A final decision on the review shall be rendered within 14 days from the date the complete application has been received by the City Clerk.

(b) The decision of the City 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.

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

(Ord. 2008-001, passed - -2008) Penalty, see 155.999

§ 155.427 REVIEWING GUIDELINES.

(A) The City Council, or designee, shall review the facts and information presented by the applicant to determine whether or not the action by the city constitutes a constitutional taking as defined in this subchapter.

(B) In doing so, they 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 city; and

(3) Whether the property and exaction taken is 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.

(Ord. 2008-001, passed - -2008) Penalty, see 155.999

§ 155.428 RESULTS OF REVIEW.

After completing the review, the City 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.