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There is no need to hire a private attorney in order to work with the Office of the Property Rights Ombudsman. The OPRO will do its best to assist property owners whether that property owner has hired an attorney or not. Some property owners find it helpful to have an attorney interact with the OPRO’s attorneys, but others choose not to incur the expense that in often involved.
The OPRO will do its best to advise and assist both property owners and governmental entities in matters of land use, eminent domain, and takings. However, it is important to note that the attorneys at the OPRO cannot represent you. The OPRO is a neutral agency, and does not represent either the property owner or the government entity. The attorneys at the OPRO are advocates for fairness and the law, rather than advocates for a party.
If you need any of the following services, you should consult a private attorney.
- You need someone to represent you in a lawsuit.
- You need to prepare legal documents.
- You need someone to argue that a certain law should be interpreted in your favor
- You need someone to attend a public meeting in your behalf
- You have questions unrelated to land use, eminent domain, or takings.
- You have a dispute with a neighbor or private party.
If you wonder whether you should consult with an attorney about any matter, even after speaking with the OPRO, the answer is yes. You need all the information that is available to you about the choices you face, and your attorney will have a perspective you should consider. This does not mean that you are obligated to retain counsel. You can decide at any time to bring your attorney into the process. The OPRO can advise you when a private attorney would be necessary or helpful.
With certain narrow exceptions, legal fees incurred by the landowner are generally not recoverable in Utah, even if you prove in court that the government entity was unfair or incorrect.
Private property owners should not hesitate to contact the OPRO with questions.
The Property Owner can Chose Mediation or Arbitration. You do have the right to request that an attempt be made to resolve the matter through arbitration or mediation instead of through legal action in the court. If you request him to become involved, the Property Rights Ombudsman has the power to stop the court proceedings and arrange mediation or arbitration of almost any issue in the process of condemnation. You are entitled to have an attorney represent you in mediation or arbitration, just as you may have legal counsel at trial.
Mediation is a negotiation that involves a neutral third party who works with you and the Agency to arrive at a settlement that both parties agree is fair. Each party remains in control of the outcome.
Arbitration is more formal. An arbitrator may make a decision that resolves the dispute like a judge would make but the process is much more informal than a court proceeding.
The Ombudsman may determine that the matter is not appropriate for mediation or arbitration and allow the legal proceedings to continue or he may intervene in the proceedings and stop legal action. Usually the legal process takes long enough that an arbitration can be completed within the time it takes to schedule a trial.
The Agency may prefer mediation or arbitration and suggest it. But you as property owner need not participate if you do not choose to. On the other hand, if you want to mediate or arbitrate and the Ombudsman determines it to be appropriate, the Agency involved is compelled to participate.
After arbitration, either you or the Agency involved in the case may appeal the resulting decision to court. The court will rehear the evidence, and may or may not give any deference to the record established at the arbitration. The Ombudsman and/or your attorney will attempt to help you make the best decision from your remaining options.
It is the mediator, arbitrator, or court’s duty to ensure that you are not wrongfully deprived of the right to use and enjoy your property. The mediator, arbitrator or judge will work to assure that the Agency has complied with each and every one of its requirements in the condemnation proceeding.
Advisory Opinions
Any one can ask for an Advisory Opinion if they are potentially "aggrieved". It can be requested at any time before a final decision is reduced to writing by an appeals authority. They are not available for legislative decisions, annexation, zone changes, variances, or general plan issues.
Advisory Opinions must apply to one of the following:
- Conditional use permits
- Impact fees
- "Exactions" on development
- Interpretation of the ordinance related to an application.
- Whether the time to review an application is "reasonable"
- Excessive fees for plan review process.
No fee is required to consult with the Ombudsman. The Advisory Opinion process is initiated by payment of a $150.00 fee. The cost for preparing the opinion is paid by all parties if an outside professional prepares it. The Ombudsman can prepare the opinion if all parties agree and time permits. The Ombudsman will help the parties choose a professional to prepare the opinion within four business days of the request. The professional chosen to prepare the opinion must do so within 15 business days (about three weeks.) If necessary, the professional may notify the parties he/she is taking more time, but no longer than 30 calendar days. (In practical terms, another week or so.)
The Ombudsman will attempt to mediate if possible to avoid the publication of the opinion. Once published, the opinion is merely advisory. The process of land use approval continues. If a judge later agrees with the opinion, the party disagreeing with the opinion must pay the legal fees of the other parties.
These guidelines are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. They are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law. Questions should always be directed to your attorney for specific advice. Suggestions and comments are always welcome.