The purpose of this chapter is to establish procedures for:

1. Obtaining and analyzing information regarding a claim that the application or enforcement of Emigration Canyon Metro Township zoning ordinances and/or land use regulations to private property within the Metro Township constitutes an unconstitutional taking of private property without just compensation; and
2. Determining whether it might be appropriate to grant administrative relief to the claimant in the event it is determined that such application or enforcement constitutes an unconstitutional taking.

(Ord. 1455 § 2 (part), 1999)

The governing body makes the following findings:

1. To further the public interest in lawful and responsible land development, and promote the health, welfare, and safety of its residents, the Metro Township has enacted zoning and other land development regulations applicable to properties within Metro Township, including new and revised regulations applicable to properties in the Metro Township's canyons and foothills; and
2. In the event an owner of private property within the Metro Township claims that the application or enforcement of Metro Township zoning ordinances or other land use regulation constitutes an unconstitutional taking of its private property, it is in the best interests of the Metro Township to have established procedures for obtaining relevant information for analyzing such claim and determining whether it might be appropriate to grant certain relief to the claimant, rather than conducting such analysis in a more confrontational, expensive, and time-consuming litigation context.

(Ord. 1455 § 2 (part), 1999)

1. Takings Relief Petition. Any applicant, after a final decision on its application is rendered by the development services director, planning commission, land use hearing officer, Council Chair or Metro Township council, may file a takings relief petition with the development services director seeking relief from the final decision on the grounds that it constitutes an unconstitutional taking of the applicant's private property.
2. Affected Property Interest. The takings relief petition must provide information sufficient for the attorney to determine that the petitioner possesses a protectable interest in property under Article I, Section 22 of the Constitution of Utah or the Fifth Amendment to the United States Constitution. In the event the petition does not provide information sufficient for the attorney to determine that the petitioner possesses a protectable interest in property under Article I, Section 22 of the Constitution of Utah or the Fifth Amendment to the United States Constitution, the petition shall be returned to the petitioner.
3. Time for Filing Petition. No later than thirty calendar days from the final decision by the development services director, planning commission, land use hearing officer, mayor, council chair, Metro Township Council or other review authority on any site plan or other type of zoning application the applicant shall file a takings relief petition with the development services director.
4. Information to Be Submitted with Takings Relief Petition.
   1. The takings relief petition must be submitted on a form prepared by the development services director, and must be accompanied at a minimum by the following information:
      1. The name of the petitioner;
      2. The name and business address of the current owner of the property; form of ownership (whether sole proprietorship, for-profit or not-for-profit corporation, partnership, joint venture, limited liability company, or other); and if owned by corporation, partnership, or joint venture, or limited liability company, the names and addresses of principal shareholders or partners or members;
      3. The price paid and other terms of sale for the property, the date of purchase, and the name of the party from whom purchased. Include the relationship, if any, between the petitioner and the party from whom the property was acquired;
      4. The nature of the protectable interest claimed to be affected, such as, but not limited to, fee simple ownership or leasehold interest;
      5. The terms (including sale price) of any previous purchase or sale of a full or partial interest in the property by the current owner, applicant, or developer prior to the date of application;
      6. All appraisals of the property prepared for any purpose, include financing, offering for sale, or ad valorem taxation, within the three years prior to the date of the petition;
      7. The assessed value of and ad valorem taxes on the property for the three years prior to the date of the petition;
      8. 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 purchase to assume the loan;
      9. All listings of the property for sale or rent, price asked and offers received (if any), during the period of ownership or interest in the property;
      10. 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;
      11. For income producing property, itemized income and expense statements from the property for the previous three years;
      12. Evidence and documentation of improvements, investments, and expenditures for professional and other services related to property made during the past three years;
      13. Information from a title policy or other source showing all recorded liens or encumbrances affecting the property; and
      14. Information describing all use(s) of the property during the five years prior to the petition.
   2. The development services director may request additional information reasonably necessary, in his or her opinion, to arrive at a conclusion concerning whether there has been a taking.
5. Failure to Submit Information. In the event that any of the information required to be submitted by the petitioner is not reasonably available, the petitioner shall file with the petition a statement of the information that cannot be obtained and shall describe the reasons why such information is unavailable.
   

(Ord. No. 1758, § XX, 9-24-2013; Ord. 1473 (part), 2001; Ord. 1455, § 2 (part), 1999)

1. Preliminary Determination of Taking.
   1. Prior to the appointment of a hearing officer, and based on a review of the petition and all relevant information submitted by the petitioner, the Metro Township council, upon advice of the development services director and the attorney, shall make a preliminary determination whether a taking may have occurred. This preliminary determination shall be made within thirty days of the filing of the petition and submission of all information required to make such determination. In the event the Metro Township council makes a preliminary determination that a taking may have occurred, the Metro Township council may appoint a hearing officer, elect to conduct either formal or informal administrative proceedings, and proceed with a full review of the petition.
   2. If a preliminary determination is made that a taking may have occurred, then the development services director and attorney shall recommend whether the hearing shall be formal or informal under the rules of procedure adopted by the governing body for such hearings.
   3. If upon the advice of the development services director and the attorney, the Metro Township council finds that a taking has not occurred, the petition shall be denied and no hearing officer shall be appointed.
2. Appointment of Hearing Officer. The development services director shall, within thirty days following a preliminary determination by the governing body that a taking may have occurred, appoint a hearing officer to review information by the petitioner, to hold a public hearing to determine whether a taking has occurred, and to make a recommendation to the governing body concerning the petition.
3. Qualifications of the Hearing Officer. Every appointed hearing officer shall be licensed to practice law in the state of Utah. Prior to appointment, the hearing officer shall submit a statement of no potential or actual conflict of interest in connection with the petitioner or petition.
4. Notice of Public Hearing. Within ten days following appointment of the hearing officer, written notice of a public hearing shall be published and posted in accordance with Section 19.84.040D of this title. The hearing shall be held within thirty days of the final date of written notice, unless a reasonable extension of time is agreed to by both the development services director and the petitioner.
5. Conduct of the Hearing. The hearing shall be conducted according to the requirements of the rules of procedure adopted by the governing body for such hearings.
6. Determining the Takings Issue. The hearing officer shall consider, among other items, the following information or evidence:
   1. Any estimates from contractors, appraisers, architects, real estate analysts, qualified developers, or other competent and qualified real estate professionals concerning the feasibility, or lack of feasibility, of construction or development on the property as of the date of the petition, and in the reasonably near future;
   2. Any evidence or testimony of the market value of the property both under the uses allowed by the existing regulations and any proposed use; and
   3. Any evidence or testimony concerning the value or benefit to the petitioner from the availability of opportunities to cluster development on other remaining contiguous property owned by the petitioner eligible for such clustering as provided elsewhere in this title.
7. Burden of Proof. The petitioner shall have the burden of proving by a preponderance of the evidence that the final decision that is the subject of the takings relief petition constitutes an unconstitutional taking.
8. Findings of the Hearing Officer. The hearing officer shall, on the basis of the evidence and testimony presented, make the following specific findings as part of his/her report and recommendations to the governing body:
   1. Whether the petitioner has complied with the requirements for presenting the information to be submitted with a takings relief petition;
   2. Whether the petitioner has a protectable interest in the property that is the subject of the petition;
   3. The market value of the property considering the existing zoning regulation;
   4. The market value of the property under the proposed use;
   5. Whether there are other economically viable uses that may be made of the property;
   6. The market value of, or benefit accruing from opportunities to cluster development on other remaining contiguous property owned by the petitioner eligible for such transfer as provided for in this title;
   7. Whether it was feasible to undertake construction on, or development of, the property as of the date of the application, or in the reasonably near future thereafter;
   8. Whether the final decision that is the subject of the takings relief petition constitutes an unconstitutional taking of private property without just compensation.
9. Report and Recommendations of the Hearing Officer.
   1. If the hearing officer finds that the final decision which is the subject of the takings relief petition constitutes an unconstitutional taking of private property without just compensation, he or she shall remand the matter to the governing body with recommendations concerning what relief might be appropriate. In making such recommendations, the hearing officer shall consider, among other factors:
      1. Approval of development on some portion of the property; or
      2. A rezoning of the property to a more appropriate classification, approval of an alternative development plan, modification or waiver of normally-applicable development standards, or other appropriate land-use regulatory action;
      3. An opportunity to cluster development;
      4. For property subject to the foothills and canyons overlay zone, transfer of up to ten percent of the maximum allowable density that would otherwise be attributable to areas with greater than thirty percent slope on the subject property to other developable portions of the property;
      5. A waiver of permit fees;
      6. Acquisition of all or a portion of the property at market value.
   2. Recommendations for clustering within the boundaries of the subject property owned by the petitioner shall require a written finding by the hearing officer that such clustering and the resulting increase in development density will be compatible with existing developments and land use patterns on properties surrounding the subject property.
      1. For purposes of such "compatibility" finding, the hearing officer shall compare the petitioner's proposed development incorporating the increased transfer density with existing development on surrounding properties, and take into consideration the following factors:
         1. Architectural character;
         2. Building size, height, bulk, mass, and scale;
         3. Building orientation;
         4. Privacy considerations in terms of privacy for prospective residents within the petitioner's development and in terms of privacy protection for adjoining land uses;
         5. Building materials;
         6. Building color; and
         7. When applicable, operations of the petitioner's development project, including but not limited to hours of operation; activities that may generate adverse impacts on adjacent land uses such as noise or glare; location of loading/delivery zones; and light intensity and hours of full illumination.
      2. The report and recommendation shall be submitted to the Metro Township council and mailed to the petitioner within thirty days following the conclusion of the public hearing.
10. Metro Township Council Review and Consideration.
    1. The Metro Township council shall review the report and recommendations of the hearing officer and approve or deny the takings relief petition within sixty days following receipt of the hearing officer's report. Provided, however, that the Metro Township council may extend this period upon a finding that due to the size and complexity of the development or proposal and similar factors that additional review time is necessary.
    2. The Metro Township council may hold a public hearing and provide notice as set forth in Section 19.84.040D of this title. Only new testimony and evidence shall be presented at any such public hearing.
    3. The Metro Township council may adopt any legally available incentive or measure reasonably necessary to offset the taking, and may condition such incentives upon approval of specific development or site plans.
    4. The decision of the Metro Township council shall not become final until it issues a decision approving or denying the petition and specifying any relief it may deem appropriate.
11. Time Limits/Transferal of Relief or Incentives. Any relief or incentives adopted by the Metro Township council pursuant to this chapter may be transferred and utilized by successive owners of the property or parties in interest, but in no case shall the relief incentives be valid after the expiration date of a specific development approval.
    

(Ord. 1473 (part), 2001: Ord. 1455 § 2 (part), 1999)