17.00.140 Private property protection procedures.
A. Policy Considerations. The city favors the careful consideration of matters involving constitutional taking claims as defined by the Private Property Protection Act (hereinafter referred to as the “Act”). The legitimate role of government in lawfully regulating real property must be preserved and the public’s right to require the dedication or exaction of property must be consistent with the Constitution. It is desired that a procedure be established for the review of actions that may involve the issue of a constitutional taking. This section shall assist the city in considering decisions that may involve constitutional takings. This section is intended to provide a means for review of claims by citizens that a specific city action should require payment of just compensation yet preserve the ability of the city to regulate real property and fulfill its other duties and functions.
B. Regulating Provisions.
1. “Constitutional taking” means actions by the city involving the physical taking or exaction of private real property that might require compensation to a private real property owner because of:
a. The Fifth or Fourteenth Amendment to the Constitution of the United States;
c. Any recent court rulings applicable to the physical taking or exaction of private real property by a government entity.
2. Actions by the city involving the physical taking or exaction of private real property is not a constitutional taking if the physical taking or exaction:
a. Bears a reasonable nexus to a legitimate governmental interest; and
b. Is roughly proportionate and reasonably related, on an individualized property basis, both in nature and extent, to the impact of the proposed development on the legitimate government interest.
3. This chapter does not apply when the city formally exercises its power of eminent domain.
C. 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 city’s liability for a constitutional taking.
D. Review of Decision. Any owner of private real property who claims there has been a constitutional taking of private real property may request a review of a final decision of any officer, employee, board, commission, or council of the city. The following are specific procedures established for such review:
1. The person requesting a review (hereinafter referred to as the “appellant”) must have obtained a final and authoritative determination, internally, within the city relative to the decision from which the review is requested.
2. Within 30 days from the date of the final decision that gave rise to the concern that a constitutional taking has occurred, the appellant shall file, in writing, in the office of the city recorder a request for review of that decision. A copy shall also be filed with the city manager and the city attorney.
3. The city 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 appellant must submit, prior to the date of the review, the following:
a. Name of the appellant;
b. Name and business address of the current owner 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;
c. A detailed description of the grounds for the claim that there has been a constitutional taking;
d. A detailed description of the property alleged to have been 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 that same property before and after the alleged constitutional taking, the name of the party from whom purchased, including the relationship, if any, between the appellant and the party from whom the property was acquired;
f. 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) 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 any ad valorem taxes 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, price asked and offers received, if any, within the previous three years;
l. All studies commissioned by the appellant or agents of the appellant 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 title policy or other source showing all recorded liens or encumbrances affecting the property; and
o. The city council may request additional information reasonably necessary, in its opinion, to arrive at a conclusion concerning whether there has been a constitutional taking.
p. An appeal shall not be deemed to be perfected until the city recorder certifies to the appellant that all the materials and information required have been received by the city. The city recorder shall promptly notify the appellant of any incomplete application.
5. The city council shall hear all the evidence related to and submitted by the appellant, city, or any other interested party.
6. A final decision shall be rendered within 14 days from the date the complete application for review has been received by the city recorder. The decision of the city council regarding the results of the review shall be given in writing to the appellant and the officer, employee, board, commission or council that rendered the final decision that gave rise to the constitutional taking claim.
7. If the city council fails to decide the claim within 14 days, the decision appealed from shall be presumed to be approved.
E. Reviewing Guidelines. The city council shall review the facts and information presented by the appellant to determine whether or not the action by the city constitutes a constitutional taking as defined in this chapter. In doing so, the council 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.
3. Whether the property and exaction are roughly proportionate and reasonably related, on an individual property basis, both in nature and extent, to the impact caused by the activities that are the subject of the decision being reviewed.
F. Results of Review. After completing the review, the city council shall make a written recommendation to the officer, employee, board, commission or council that made the decision that gave rise to the constitutional takings claim. [Ord. 08-17-2021B § 2 (Exh. A)].