Author Archive

2014 LEGISLATIVE SUMMARY

Posted on: April 17th, 2014 by Cortney Taylor

Summary of Bills That Affect Land Use, Land Development, Property Rights, or Eminent Domain

 

These summaries are provided for informational purposes only,

and do not reflect legal conclusions or opinions on any legislation.

 

Please refer to the bill text, or to the language of the Utah Code.

The full text of each bill may be found at www.le.utah.gov, or by clicking on the Bill Title.

 

All bills are listed under the number assigned during the 2014 General Session.

 

List of Bills Discussed

In Numerical Order

House Bills

H.B. 16: Wrongful Lien Amendments

H.B. 25:  Eminent Domain Amendments 

H.B. 26S1:  Association Liens Amendments

H.B. 29:  County Recorder Index Amendments

H.B. 42:  Construction Lien Amendments

H.B. 44S4:  Interstate Electric Transmission Lines

H.B. 93:  Property Tax Assessment Amendments

H.B. 115:  Condominium and Community Association Lien Amendments

H.B. 158:  Grazing and Timber Agricultural Commodity Zones in Utah

H.B. 160:  Utah Wilderness Act

H.B. 192:  Initiative and Referendum Petition Amendments

H.B. 220S2:  Land Use Amendments 

H.B. 238:  Local Referendum Requirements Amendments

H.B. 245S2:  State Fire Code Amendments

H.B. 262S2:  Local Governing Body Voting Amendments

H.B. 326:  State Construction Code Revisions

H.B. 370:  Canal Safety Amendments

H.B. 382S2:  Limited Purpose Local Government Entities

H.B. 422S1:  Initiative and Referendum Impact Disclosure

           

Senate Bills

S.B. 17: Water and Irrigation Amendments

S.B. 21S1:  State Construction Code Amendments

S.B. 52:  Utility Relocation on Highway Projects

S.B. 134:  Taxation Related Referendum Amendments

S.B. 147S4:  Residential Rental Amendments

S.B. 169S2:  Public Meetings Materials Requirements

S.B. 184S1:  Local Government Inspection Amendments

S.B. 187:  Highway Right-of-Way Amendments

S.B. 237:  Urban Farming Amendments

S.B. 274S1:  Water Jurisdiction Amendments

S.B. 275 Redevelopment Agency Modifications

 

Bill Summaries

 

The Office of the Property Rights Ombudsman has classified several bills adopted in 2014 based on the impacts on land use, development, or eminent domain.

They are presented here in three categories:

(1) Significant or Direct Impact;

(2) Moderate or Indirect Impact; and

(3) Low or Co-incidental Impact

 

Significant or Direct Impact

 

H.B. 25:  Eminent Domain Amendments 

Amends:

10-8-2                         13-43-206

11-13-314                   78B-6-501

13-43-204                   78B-6-505

13-43-205                   78B-6-522

Effective Date:  May 13, 2014

         This bill revises the required notice that must be given when a condemning agency acquires private property, clarifying property owner’s rights.  An eminent domain action may not be initiated until at least 30 days after the notice was given. The bill also makes relatively minor changes to the list of public uses that warrant eminent domain.

         In addition, a property owner who believes that a governmental agency (or private entity with condemnation authority) is occupying property without permission may ask for an Opinion from the Office of the Property Rights Ombudsman, to determine if the agency has a legitimate claim for the occupancy and use.  This process will be basically the same as the Advisory Opinion process already in use.

 

H.B. 192:  Initiative and Referendum Petition Amendments

 Amends:

20A-7-203

20A-7-303

20A-7-503

20A-7-603

Effective Date:  May 13, 2014

          Each signature line on petitions for initiatives and referenda must include a statement that the signor has read and understands the law which is proposed to be enacted or repealed.

 

H.B. 220S2:  Land Use Amendments  (Amends LUDMA)

Amends:

10-9a-103               17-27a-103

10-9a-509               17-27a-508

10-9a-608               17-27a-608

10-9a-609               17-27a-609

Effective Date:  May 13, 2014

        An applicant for a land use or development is entitled to substantive review of the application under the ordinances in effect on the date the application is considered complete.

          Before acting on a petition to vacate or amend a subdivision plat, the land use authority must send notice to the owners of any portion of the plat, as well as any affected entities (ie., utilities).  The bill also clarifies that if no other body is named as the “land use authority,” the authority is the legislative body of the city or county.

 

H.B. 422S1:  Initiative and Referendum Impact Disclosure

 

Amends:                             Enacts:

20A-7-101                          20A-7-602.5

20A-7-502.5

20A-7-513

Effective Date:  May 13, 2014

          This bill requires a “legal and financial impact statement” for each initiative or referendum proposed for a local entity.  This statement is to be prepared by the budget officer of the entity, and is a good faith estimate of the fiscal and legal impacts of the action.

            The legal impacts include effects on individual property rights, the entity’s legal liability, and effects on local ordinances.

 

S.B. 187:  Highway Right-of-Way Amendments

Amends:

72-5-104

Effective Date:  May 13, 2014

Section 72-5-104 is the “Road by Prescriptive Use” statute.  S.B. 187 repeals the requirement that a valid road barricade must be physically manned.   It also clarifies that a parking lot is not considered a “street” or “road,” meaning that parking lots are not subject to the prescriptive use provisions.

 

Moderate or Indirect Impact

 

H.B. 29:  County Recorder Index Amendments

 Amends:

17-21-6

         County recorders are required to maintain an index of water rights, recording them in the same manner as other property-related information.Effective Date:  May 13, 2014

 

H.B. 160:  Utah Wilderness Act

Enacts:

63L-7-101               63L-7-106

63L-7-102               63L-7-107

63L-7-103               63L-7-108

63L-7-104               63L-7-109

63L-7-105

Effective Date:  May 13, 2014

          This bill enacts a new chapter in the Utah Code, authorizing the creation of wilderness areas on state-owned lands.  The designation will be recommended to the Governor by the Department of Natural Resources.  SITLA parcels are exempt from wilderness designation.  Privately-owned land is also exempt, but the owner may donate the parcel to the State.  If access to a privately-owned parcel is blocked by a wilderness area, the state must provide reasonable access, or offer a similarly-situated parcel in exchange for the private property.

 

H.B. 238:  Local Referendum Requirements Amendments

Amends:

 20A-7-601

 Effective Date:  May 13, 2014

          If a local government imposes a tax or payment obligation on only a portion of the local government’s jurisdiction, a petition for a referendum on the action only requires signatures from the voting precincts subject to the new tax or payment.  In addition, only the voters in the affected precincts may vote on a referendum.

 

H.B. 370:  Canal Safety Amendments

Amends:

73-5-7

73-10-33

 Effective Date:  May 13, 2014

          By July 1, 2017, the State Engineer’s office must compile an inventory of all open, artificial canals and irrigation ditches which carry more than 5 cfs of water.  The Engineer’s office is also charged to provide technical support to local districts preparing management plans for canals.

 

H.B. 382S2:  Limited Purpose Local Government Entities

Amends:

17B-2a-404

17D-1-103

 Effective Date:  May 13, 2014

          A Limited Purpose Local Government Entity is considered a “political subdivision” of the State, confirming that special service districts are subject to state laws in the same manner as other political subdivisions.

 

S.B. 17: Water and Irrigation Amendments

Amends:

73-2-25

73-3-18

73-3-26

73-3-29

73-5-3

 Effective Date:  May 13, 2014

          This bill clarifies some language in Title 73, including the duties of the State Engineer’s office.  It imposes penalties for well-drilling without a permit, and provides that a person may take reasonable steps to alter a stream without a permit, when it is necessary to avoid a threat caused by the stream.

 

S.B. 134:  Taxation Related Referendum Amendments

Enacts:

 20A-7-613

 Effective Date:  May 13, 2014

          This bill creates a new section governing referenda on property tax increases.  It establishes a time frame and petition requirements for such referenda.

 

S.B. 184S1:  Local Government Inspection Amendments

Amends:

10-5-132

10-6-160

15A-1-104

17-36-55

 Effective Date:  May 13, 2014

          Local governments must ensure that building inspections occur promptly after inspection fees have been paid.  If an inspection does not or cannot occur within three business days, the locality must engage a private inspector to perform the work.

          A local building official may not withhold approval of a construction project for a building code violation unless the official identifies the code provision and the reasons why the project violates the code.  A certificate of occupancy may not be withdrawn, unless there are changes to the project which require a building permit.

S.B. 274S1:  Water Jurisdiction Amendments

Amends:

 73-3-31

 Effective Date:  May 13, 2014

          A State land agency may not impose additional conditions on a livestock watering right, (such as access rights, development infrastructure, etc.)  A livestock watering right no longer needs to be jointly owned by the land agency.  If a reduction in grazing causes a partial loss of water rights, the State Engineer must reserve the water rights for future livestock grazing.

 

S.B. 275 Redevelopment Agency Modifications

Repeals:

 17C-2-701

Effective Date:  May 13, 2014

 

         Section 17C-2-701, “Railroad Crossings Within Urban Renewal Project Area,” is repealed in its entirety.

 

 

Low or Co-incidental Impact

 

H.B. 16: Wrongful Lien Amendments 

Amends:

38-9a-102

76-6-503.5

78B-5-201

78B-5-408

 

 

 

Enacts:

38-9-101

38-9-201

38-9-301

38-9-302

38-9-303

38-9-304

38-9-305

Renumbers and Amends:

38-9-102 (was 38-9-1)

38-9-103 (was 38-9-2)

38-9-202 (was 38-9-3)

38-9-203 (was 38-9-4)

38-9-204 (was 38-9-6)

38-8-205 (was 38-9-7)

Effective Date:  May 13, 2014

         This bill addresses the procedures for “nonconsensual common law liens.”  The language provides for judicial review if a lien is challenged, along with other technical changes to the lien statute.

 

H.B. 26S1:  Association Liens Amendments

Amends:

57-8-37

57-8-44

57-8a-208

57-8a-301

Effective Date:  May 13, 2014

          Along with technical definitions and clarifications, this bill provides that an association member who is fined may request an informal hearing, and may sue to challenge the fine in district court.

 

H.B. 42:  Construction Lien Amendments

Amends:

14-1-20

14-2-5

38-1a-102

38-1a-501

38-1a-503

 Effective Date:  May 13, 2014

          The eligibility for construction and preconstruction liens is modified by H.B. 42, including rules on priority between liens and mortgages.

 

H.B. 44S4:  Interstate Electric Transmission Lines

Enacts:

 63M-4-402

 Effective Date:  May 13, 2014

          H.B. 44 addresses interstate electric transmission lines that do not provide electric service within in Utah.  Interstate carriers are required to obtain a certificate of need from the State Office of Energy Development as well as file with federal agencies.

 

H.B. 93:  Property Tax Assessment Amendments

Enacts:

 59-2-301.6

 Effective Date:  January 1, 2015

          Starting in 2015, property assessments must reflect “diminished productive value” that results because of parcel size limitations imposed by a zoning ordinance, or because of easements on the property.

 

H.B. 115:  Condominium and Community Association Lien Amendments

Amends:

 38-12-102

 Effective Date:  May 13, 2014

          This bill requires that a lien filed by a condominium HOA or a community association must comply with notice requirements, and must be sent by certified mail.

 

H.B. 158:  Grazing and Timber Agricultural Commodity Zones in Utah 

Amends:

63J-8-102

63J-8-105

63J-8-105.5

63J-8-105.7

 

Enacts:

63J-8-105.8

63J-8-105.9

 

 

 

Repeals

 63-8-105.6

 

 

 

 

Effective Date:  May 13, 2014

          This bill establishes several Grazing Agricultural Commodity Zones and Timber Agricultural Commodity Zones throughout the State.  The intent of these zones is to promote grazing and timber harvesting, and to request cooperative management between federal, state, local, and private interests.  The new language does not impose specific regulations in the zones.

 

H.B. 245S2:  State Fire Code Amendments

Amends:

15A-3-104

15A-5-202.5

15A-5-204

 Effective Date:  July 1, 2014

          This amendment to the Fire Code provides exceptions to required sprinkler systems, and makes other modifications related to hazardous and environmental conditions.

 

H.B. 262S2:  Local Governing Body Voting Amendments

 Amends:

 10-3-507

Effective Date:  May 13, 2014

          If there is a vacancy on a city council, actions may be taken with a majority vote of the existing members.

 

H.B. 326:  State Construction Code Revisions

Amends:                             Enacts:

 15A-3-106                          15A-3-106.5

 Effective Date:  March 29, 2014

          This bill modifies required fire ratings for photovoltaic cells, and delays implementation of updates to the 2012 IBC code, regarding labeling of photovoltaic systems.

 

S.B. 21S1:  State Construction Code Amendments

Amends:

 15A-1-204

 Effective Date:  July 1. 2014

          Structures used solely for the sale of seasonal crops are exempt from the State Construction Code’s permit requirements.

 

S.B. 52:  Utility Relocation on Highway Projects

Amends:

 72-6-116

 Effective Date:  May 13, 2014

          The Utah Department of Transportation must pay for at least part of the costs to relocate a utility facilities (including underground and above-ground structures and equipment), if the relocation is due to a state highway project.

 

S.B. 147S4:  Residential Rental Amendments

 

Amends:

57-8-10

57-8-13.8

57-8-13

57-8a-209

57-17-3 

Enacts:

 57-8-10.1

 

 

 

 

Repeals and Reenacts:

 57-17-5

 

 

 

 

Effective Date:  May 13, 2014

          This bill imposes some limits on an HOA’s authority over unit rentals.  An HOA may not require pre-approval of tenants, or demand documents from prospective tenants.  When a tenant leaves the unit, the owner must refund any deposits or prepaid rent, or face civil penalties.

 

S.B. 169S2:  Public Meetings Materials Requirements

Amends:

 52-4-203

 Effective Date:  May 13, 2014

          A public body shall require electronic or “hard” copies of any materials submitted to the body by any participant, which is related to discussion of an item on the meeting agenda.

 

S.B. 237:  Urban Farming Amendments

Amends:

59-2-1702

59-2-1703

59-2-1705

 Effective Date:  May 13, 2014

          This bill amends provisions related to urban farmland, expanding coverage to include counties of the second class.  Farmland in urban areas are to be assessed as agricultural, if the parcel is larger than two acres.  If the land is developed, the owner must pay rollback taxes for the previous five years.

 

 Code Sections Amended or Adopted by the Summarized Bills

 

 

 


New Case Summary — Marvin Brandt Revocable Trust v. United States

Posted on: March 17th, 2014 by Cortney Taylor

United States Supreme Court

March 10, 2014

2014 U.S. LEXIS 1788

The US Supreme Court determined that a railroad right-of-way granted under an 1875 federal law was an easement only, and did not grant any title to the land.  Thus, when the railroad was abandoned, the right-of-way was terminated, and the property owner retained ownership.

The case concerned a rail right-of-way that was established pursuant to the General Railroad Right-of-way Act of 1875.  In the early part of the 20th century, a rail company obtained a right-of-way and constructed a rail line from Laramie, Wyoming to Coalmont, C0lorado.  The railroad crossed land that had been patented to a private owner, but the rail line took precedence.  By 1996, the rail line was no longer needed, and so it was abandoned, and all tracks removed.  In 2006, the Federal Government claimed ownership of the entire right-of-way, including the portion that crossed the private land, now owned by the Marvin Brandt Revocable Trust.

The US Supreme Court held that the right-of-way was only an easement, and did not grant any other title to the land. Thus, the Federal Government had no claim on privately owned land after the railroad was abandoned.  The government claimed a “reversionary interest” in the right-0f-way, but the Court held that no such interest existed.

New Case Summary — Powder Run at Deer Valley v. Black Diamond Lodge and Park City

Posted on: February 24th, 2014 by Cortney Taylor

2014 UT App 43 (Click for Full Text of Opinion)

Utah Court of Appeals

February 21, 2014

This case clarifies the thirty-day limit to appeal a municipal land use decision, as provided in § 801 of LUDMA (The Land Use and Development Management Act, Chapters 10-9a and 17-27a of the Utah Code).

In 2001, Black Diamond Lodge proposed to dedicate an easement it owned to Park City, to be used as a public street.  Part of the easement crossed Powder Run’s property.  Powder Run was aware of the proposed dedication, and sent a letter to Park City asking that a decision be postponed.  The City did not postpone the decision, and it enacted an ordinance accepting the dedication and creating a public street.  The easement was developed as a public road, and was used as access for Black Diamond’s property.  Powder Run did not appeal the decision within 30 days, as provided in § 801 of LUDMA.

In 2010, Powder Run filed a quiet title action against Black Diamond and Park City.  The defendants argued that the action was barred because it was not filed within thirty days after the City acted to accept the dedication.  The thirty-day appeal period served as a statute of limitations against claims filed against a City.   Section 801 of LUDMA requires that appeals of land use decisions be filed within 30 days.  Powder Run argued that the thirty-day limitation did not apply, because Black Diamond did not have the right to dedicate the easement in the first place.

The Court of Appeals disagreed, and held that the appeal should have been within thirty days, as provided by § 801 of LUDMA.  By accepting the dedication, the City also had a claim to the easement, arising in 2001.  Powder Run was aware of the action, and had ample opportunity to pursue an appeal then.

The Court rejected Powder Run’s arguments that it qualified for an exemption from the Statute of Limitations argument.

New Case Summary — UDOT v. Walker Development Partnership

Posted on: February 10th, 2014 by Cortney Taylor

Utah Court of Appeals

2014 UT App 30  (Click for Full Text of Opinion)

February 6, 2014

In a condemnation proceeding which has lingered for over 20 years, the Utah Court of Appeals agreed that the property owner may not amend its original answer to include a new claim that more property was being taken than was identified in the original complaint.

UDOT initiated this action in 1992, condemning property to widen Wasatch Boulevard.  UDOT took immediate occupancy and completed the project several years ago, but the amount of compensation for the property was not resolved.  In 2011, an appraisal raised the issue that the actual width and ownership of Wasatch Boulevard had not been completely established in 1992. Evidently, the road was never officially condemned, but was established by prescriptive use, and the total width of the right-of-way was disputed.

Beginning in 2011, the property owners argued that the original complaint was in error, because UDOT was acquiring more property than was described in the 1992 action. The owners petitioned to amend their answer to include a claim for additional compensation for the property within the roadway (to which they claimed ownership under the prescriptive use statute).   UDOT argued that it was too late to amend the answer.

The Court of Appeals held that the owners could not amend their answer after such a long time. The Utah Rules of Civil Procedure prohibit an amendment that raises a new claim for compensation after a long period.  The Court indicated that the owners may have grounds for a separate action against UDOT, but declined to comment further on that possibility.

New Case Summary — Q-2, LLC v. Hughes

Posted on: January 27th, 2014 by Cortney Taylor

2014 UT App 19 (Click for Full Text)

Utah Court of Appeals

January 24, 2014

This decision establishes that title to disputed property passes when the elements of boundary by acquiescence are established, even if the actual property boundary is asserted by a subsequent property owner.

In this matter, the two property owners conceded that previous owners had treated a fence line as the property boundary for many years, thus establishing boundary by acquiescence. However, the boundary dispute was never settled by either agreement or a quiet title action.   Notwithstanding the boundary by acquiescence, one of the current owners claimed ownership of the disputed area through adverse possession.  The other owner argued that title to the disputed property had never changed hands (because there was no “official” determination of the boundary by acquiescence), and so adverse possession could not be established.

The other owner reasoned that if the person claiming adverse possession actually owned the property in dispute, then adverse possession was not legally possible, since it requires that the property occupation be “hostile” or “adverse” to the interest of the property owner.   In other words, a person cannot occupy or use property adverse to his or her own interest in the property.

The Utah Court of Appeals noted that the question of when title to disputed property changes hands has not been established in Utah.  However, the Court evaluated two earlier cases from the Utah Supreme Court, and determined that title passes when the elements of boundary by acquiescence are established, even if the dispute is not settled by agreement or court action. Subsequent purchasers are also bound to such title changes, even if the purchase was in good faith, and even if the new purchaser disputed the location of the boundary.

2013 Appellate Roundup

Posted on: January 6th, 2014 by Cortney Taylor

A few 2013 cases from other states are summarized here.  These cases are classified as follows:

Authority to exercise eminent domain,

Damaging property for a public use, 

Exactions and impact fees, 

Just compensation,

Other damages and compensation, 

Land use regulation, and 

Takings.

The summaries include a comparison to Utah law.

These cases are presented for information only,and they may shed some light on eminent domain, takings, or land use issues.  The reader should remember that cases from other states are not binding on Utah courts.  Unfortunately, links to these cases are not available.

AUTHORITY TO EXERCISE EMINENT DOMAIN

Alliance Pipeline LP v. Smith, 833 N.W.2d 464 (N.D. 2013).

To obtain a court order allowing entry onto private property for examination or a survey, a condemnor was only required to show that it was entitled to acquire the property using eminent domain.  It does not need to establish a public use.

In Utah, condemnors have authority to examine or survey property proposed for taking using eminent domain, but it is not clear what the agency must establish before entering private property.  See Utah Code Ann. § 78B-6-506.

Community Youth Athletic Center v. National City, 220 Cal. App. 4th 1385 (Cal. Ct. App. 2013).

A city did not have a sufficient basis to declare a neighborhood “blighted” under California statutes governing redevelopment.

The Utah Code has specific guidelines on when a property may be declared “blighted” under a redevelopment plan.  See Title 17C of the Utah Code.

Domaschko v. State, 983 N.E.2d 182 (Ind. Ct. App. 2013).

The Indiana DOT acquired a “buffer zone” along with property for a road.  The property owner objected, arguing that the buffer zone was not necessary for the road project.

Necessity under Indiana’s eminent domain statutes is not limited to the absolute or indispensable needs of the State, but is considered to be that which is reasonably proper and useful for the purpose sought. Moreover, Indiana’s policy should not be such as to place an undue burden upon the State in acquiring land for such public improvements as highway construction when such improvements are considered to be in the public interest. All issues concerning the expediency and necessity of the taking of private property are exclusively for the Indiana Legislature.

This is essentially the approach taken in Utah.  See UDOT v. G. Kay, 2003 UT 40.

McEwen v. MCR, LLC, 291 P.3d 1253 (Mont. 2013).

A gas company’s authority to use eminent domain for gas pipelines reasonably included the authority to condemn land for a compressor station to operate a gas pipeline, even though compressors are not specifically listed.  Eminent domain authority is strictly construed, but absurd results should be avoided.  The Court concluded that it would be absurd that a company could construct a gas pipeline, but not have authority to construct the facilities needed to operate the pipeline.

Utah law specifically authorizes condemnation of easements for gas pipelines. See Utah Code Ann. § 78B-6-501(6).  In Utah, the eminent domain statute is strictly construed against the condemning agency, and in favor of the property owner.  See Marion Energy Corp. v. KFJ Ranch Partnership, 2011 UT 50.

Norfolk Southern Railway Co. v. Intermodal Properties, LLC, 71 A.3d 830 (N.J. 2013).

The New Jersey Supreme Court considered a challenge that a property taking was not a sufficient “public use.”  A railroad company initiated a suit to obtain property to expand its rail facilities.  The railroad could exercise eminent domain to acquire property.  The expansion was proposed to be completed in about five years. The property owner argued that its current use, as a parking facility, was a “more appropriate” public use than future expansion of the rail facility.

The railroad’s proposed use for future expansion met the requirement of that the taking not be incompatible with the public interest.

The property owner could not invoke the prior public use doctrine because it lacked the power to condemn and its proposed use was neither prior nor public.

Under New Jersey’s Statutes, “exigencies of business” was held not to necessitate an urgent need for land in order to justify a taking.

Utah, like New Jersey, reads the “public use” requirement fairly broadly.  Expansion of a rail facility would very likely be found to be an acceptable public use.  The Utah Supreme Court recently discussed the “prior public use doctrine,” which applies when property being used for a public use is proposed for another public use.  (See Schroeder Investments LC v. Edwards, 2013 UT 25).  Under Utah’s Eminent Domain Statute, the use of the property being taken must “commence within a reasonable time.”  Utah Code Ann. § 78B-6-504(1)(c).

PKO Ventures, LLC v. Norfolk Redevelopment & Housing Authority, 747 S.E.2d 826 (Va. 2013).

This Virginia case dealt with a redevelopment authority’s attempt to condemn property.  A new statute prohibited such condemnations, and the Virginia Supreme Court rejected an argument that the RDA had a vested right to condemn the property.

The Utah Eminent Domain statute lists several acceptable public uses, including private economic development, such as railroads, mining, etc.  Under Utah’s Community Development and Renewal Agencies Act, eminent domain may be used to acquire property in limited situations to accomplish an urban renewal project.  See Title 17C of the Utah Code.

Seabaugh v. Dolan, 398 S.W.3d 472 (Mo. 2013).

Missouri Statutes prohibit condemnation of property solely for economic development.  A local Port Authority sought to condemn property to expand a rail facility, which would be used by private rail carriers.  The Missouri Supreme Court held that the proposed use was economic development, meaning that eminent domain could not be used.  The Port Authority argued that expansion of the rail facility was a valid public use, because it was an improvement to river commerce, but the court concluded that the primary purpose was economic development.

In Utah, eminent domain may only be exercised for the public uses listed in the Utah Code.  See Marion Energy, Inc. v. KFJ Ranch Partnership, 2011 UT 50; see also Utah Code Ann. § 78B-6-501.

State ex rel. DOT v. Metcalf, 298 P.3d 550 (Okla. Civ. App. 2013).

Under Oklahoma statutes, a condemning agency must make a bona-fide offer to purchase property before initiating an eminent domain action.  However, the wording of the statute indicates that other “prerequisites,” including good-faith negotiation are actually policies, not requirements. Since an offer was made, the DOT met the only prerequisite.  Furthermore, an analysis provided for the DOT was a sufficient valuation for the offer, even though it was not a full appraisal of the property being taken.

In Utah, a condemning authority must show that it made reasonable efforts to negotiate a sale of the property before eminent domain may be used.  See Utah Code Ann. § 78B-6-505.

Telford Lands LLC v. Cain, 303 P.3d 1237 (Idaho 2013).

Irrigation is a beneficial use of water, and an easement for a pipeline to convey irrigation water is a valid public use under Idaho statutes.

Under the Utah Code, eminent domain may be exercised to acquire easements to convey irrigation water.  See Utah Code Ann. § 78B-6-501(5).

DAMAGING OF PROPERTY FOR A PUBLIC USE

Henderson v. City of Columbus, 827 N.W.2d 486 (Neb. 2013). 

The Takings Clause of the Nebraska Constitution is very similar to Utah’s.  It states that “[t]he property of no person shall be taken or damaged for public use without just compensation therefor.”  Neb. Const. art. I, § 21.  This case addressed an inverse condemnation claim, that private property was damaged for a public use.  After a heavy rainstorm, the city’s sewer system backed up into private homes, causing extensive damage.

The landowners failed to establish that they were entitled to just compensation from the city. Regardless of whether the city’s actions proximately caused their damages, the landowners failed to establish the threshold element that their property was taken or damaged for public use by the city in the exercise of its power of eminent domain.

Utah has a similar provision regarding “damaging” of private property for a public use.  (Utah Const., art. I, § 22).  The outcome would probably have been the same, because the “damage” has to be a permanent or recurring entry onto private property.  In the Nebraska case, the sewage was a temporary entry due to extraordinary circumstances, and was not part of the “normal” operation of the sewer.  Utah cases make a similar distinction.  See Farmer’s New World Life Insurance Co. v. Bountiful, 803 P.2d 1241 (Utah 1990); Hamblin v. Clearfield, 795 P.2d 1133 (Utah 1990).

Keene Valley Ventures, Inc. v. Richland, 298 P.3d 121 (Wash. Ct. App. 2013).

In an inverse condemnation action, a city was found to have damaged property by diverting water onto it.  However, the property owner was granted only a nominal award, because no actual damages were proven.

Utah allows an inverse condemnation action for water diverted onto property by a public agency.  See Hamblin v. Clearfield, 795 P.2d 1133 (Utah 1990).

Rupert v. Rapid City, 827 N.W.2d 55 (S.D. 2013).

A property owner was awarded inverse condemnation damages when a city’s snow removal efforts deposited an unusual amount of de-icer on the property, killing 42 mature pine trees.  The property owner showed that the city’s de-icer invaded the property, and that the damage (loss of the trees) was unique from damage suffered by the public at large.  The amount of de-icer on the property was significantly higher than that deposited on other properties.

In Utah, a property owner may receive compensation for damage caused by a physical invasion caused by a government activity, if the damage is unique to the property.  See Colman v. Utah State Land Board, 795 P.2d 622 (Utah 1990).

EXACTIONS/IMPACT FEES

Alpine Village Co. v. City of McCall, 303 P.3d 617 (Idaho 2013); and Hehr v. City of McCall, 305 P.3d 536 (Idaho 2013).

These two Idaho cases arose from a city’s ordinance requiring developers to reserve housing units for lower income individuals.  In both cases, the property owners objected, but failed to file their claims within 180 days, as required by Idaho statutes.  Thus, both cases were dismissed.  The court did not decide on whether the requirements were allowable or not.

In Utah, a claimant must file in a timely manner, and must exhaust all administrative remedies before pursuing litigation.  See Wintergreen Group, LC v. UDOT, 2007 UT 75.  Exactions must satisfy “rough proportionality” analysis.  See Utah Code Ann. §§ 10-9a-508 and 17-27a-507; see also B.A.M. Development, LLC v. Salt Lake County, 2008 UT 74

Buckskin Properties v. Valley County, 300 P.3d 18 (Idaho 2013).

Developers signed a development agreement in which they agreed to pay for road improvements. They paid for the improvements under the first phase, but objected when the payments were increased for the second phase.  They claimed that the county was charging illegal impact fees.  The Idaho Supreme Court held that the agreement was valid, and that the developers had voluntarily agreed to pay the road fees.  Since the fees were voluntary, they could not be considered illegal exactions.

Development agreements are allowed in Utah.  See Utah Code Ann. § 10-9a-102 and 17-27a-102.  As long as the agreements are voluntary and are a fair exchange of value, they should be valid.

Cedar River Water & Sewer Dist. v. King County, 178 Wn.2d 763 (Wash. 2013).

This case concerned a new sewage treatment facility built by King County, but located in an adjoining county (Snomish). The decision covers several aspects of the project and the agreements between the counties, including the use of sewer impact fees to fund the new facility.  King County agreed to pay mitigation funds to Snomish County.  The court ruled that impact fees could be used to pay the mitigation obligation, because there was a nexus between the facility and the mitigation.

Utah’s impact fee act requires that fee revenues be spent on the capital facilities justifying the fees.  The extent of allowable costs that can be paid for by impact fees is not clear, however.  See Chapter 11-36a of the Utah Code.

Cresta Bella, LP v. Poway Unified School District, 218 Cal.App.4th 438 (Cal. Ct. App. 2013).

A developer demolished an apartment complex, and built a new one with more units.  The school district calculated a school impact fee based on the total area of the new complex.  The California Court of Appeals held that the fee should have been based only on the “new” area (i.e, the additional area of the new complex), and that an area equal to that of the original complex should have been excluded.  The impact was attributable to the additional units being built, but there was no impact caused by replacing the original number of units.

Although Utah does not have a school impact fee, a similar logic should apply to impact fees.  An impact fee is intended to help offset the impact of new development.  If an existing development is being replaced, the impact fee should only be based on the extent that the new development exceeds the old.  See Chapter 11-36a of the Utah Code.

Mira Mar Development Corp. v. City of Coppell, 2013 Tex. App. LEXIS 12521.

The Texas Court of Appeals concluded that impact fees charged by a city bore an essential nexus to legitimate governmental interests.  Under rough proportionality analysis, the city showed that the fees were permissible.

In Utah, local governments may charge impact fees, if they comply with the Impact Fees Act.  See Chapter 11-36a of the Utah Code.

Sterling Park, LP v. City of Palo Alto, 310 P.3d 925 (Cal. 2013).

The Supreme Court of California held that a city’s requirements that a developer set aside 10 of 96 condominiums as low-income housing—reserving to the city an option to purchase those units—along with a cash payment to a city fund, were “other exactions,” even if they were not defined as “fees.”

In Utah, a development exaction is a government-mandated contribution of property imposed as a condition of approving a developer’s project.  See B.A.M. Development LLC v. Salt Lake County, 2012 UT 26. The contribution may be in the form of land, construction of public improvements, or cash payments.   Exactions must satisfy “rough proportionality” analysis.  See Utah Code Ann. §§ 10-9a-508 and 17-27a-507; see also B.A.M. Development, LLC v. Salt Lake County, 2008 UT 74.

JUST COMPENSATION

Barlow Ranch, LP v. Greencore Pipeline Co. LLC, 301 P.3d 75 (Wyo. 2013).

This Wyoming case discussed how value for a pipeline easement may be determined.  The decision discusses the comparability of easements for other types of pipelines, and whether those easements were truly the result of “arms-length” transactions.  The other easements were comparable, and could be used to establish the fair market value.   The court held that the measure of compensation is the fair market value, measured as the value given up by the property owner.  It does not include the economics of the proposed use, or the value to the condemnor.

Insofar as general principles of valuation are concerned, this decision would probably be treated the same under Utah laws.

Borough of Harvey Cedars v. Karan, 70 A.3d 524 (N.J. 2013).

A city acquired a portion of a parcel, for use in a shoreline preservation project.  The constructed improvements would help protect the remaining property, although it would restrict the owner’s view of the beach.  The New Jersey Supreme Court held that the benefits to the remaining property from the public project could be considered when determining just compensation for the taking.

Utah has a similar rule for severance damages.  See Utah Code Ann. § 78B-6-511.

Savage v. American Transmission Co., 828 N.W.2d 244 (Wis. Ct. App. 2013).

A just compensation determination is based on the fair market value of the land as a whole, which is not obtained by adding up a number of separate items, but by taking a comprehensive view of each and all of the elements of property, tangible and intangible, including property rights, and considering them all not as separate things, but as inseparable parts of one harmonious entity.

This is essentially the approach to valuation used in Utah.  See Utah Code Ann. 78B-6-511; see also. UDOT v. Admiral Beverage Corp., 2011 UT 62.

St. Louis County v. River Bend Estates Homeowners’ Ass’n, 408 S.W.3d 116 (Mo. 2013). 

Missouri statutes provide for “heritage value,” which is additional compensation for properties which have been owned by a single person for a long period of time.  The Missouri Supreme Court upheld the concept of “heritage value,” explaining that it was within the power of the state’s legislature to define just compensation, giving an additional payment to certain property owners.

Utah does not have a “heritage value” provision.  Just compensation is based on the market value of the property taken.  See Utah Code Ann. § 78B-6-511.

City of Wichita v. Denton, 294 P.3d 207 (Kan. 2013).

In a Kansas case, a city acquired property for a road project.  A billboard company leased a small portion of the property.  The billboard company appealed, claiming that it should be entitled to more compensation.

The billboard structure was a noncompensable item because it was the personal property of the tenant, which had the right to remove it at the termination of the lease; therefore, evidence of the billboard and its advertising income was properly excluded.

The rent generated by the leasehold was a necessary part of the valuation of the property owner’s interest, but the advertising income generated by the tenant was business profits and not derived from the land and was not relevant to the valuation.

Under Utah’s laws, this holding on the valuation of the billboard interest might have been different.  However, the Kansas court’s approach is comparable to the Utah Supreme Court’s rulings in UDOT v. Admiral Beverage Corp., 2011 UT 62; and UDOT v. FPA West Point, LLC, 2012 UT 79.

OTHER DAMAGES & COMPENSATION

Bray v. DOT, 2013 Ga. App. LEXIS 838 (Ga. Ct. App. 2013).

A property owner claimed damage due to improper design or construction of a road project.  The property was acquired in an eminent domain action, and the owner was compensated.  Later, the owner claimed damages to the remaining property, because the road was not designed or constructed properly.  The Georgia court stated that the compensation was for the property and all damages arising from the proper construction of the road.  The owner’s claim arose due to improper or negligent design and construction. The case language indicates that the damage was not known until after the project was completed.

Damage to remaining property caused by negligent or improper construction in the course of a prior eminent domain project may be recovered from the condemnor by a separate “inverse condemnation” proceeding, and the condemnor cannot escape the constitutional duty to compensate the property owner for the damage by claiming that the negligent party was an independent contractor rather than the condemnor’s agent or employee.

There does not appear to be a Utah case or statute that addresses this situation. It is possible that an owner could have a claim, but would probably need to show special damages that were not compensated.  See Utah Code Ann. § 78B-6-511(3).

California DOT v. McNamara, 218 Cal. App. 4th 1200 (Cal. Ct. App. 2013).

This matter concerned “precondemnation damages” (sometimes referred to as “condemnation blight”)  In California, a property owner may be entitled to precondemnation damages if the owner demonstrates that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action, the property in question suffered a diminution in market value.

In this case, it was shown that the loss of property value was due to market declines, and not because of the agency’s action.

There is currently no provision for “precondemnation damages” in Utah.

Waller v. American Transmission Co., 833 N.W.2d 764 (Wis. 2013).

A property owner was left with an “uneconomic remnant” after a utility company acquired an easement.  Under Wisconsin statutes, the remaining property was “uneconomic” because of restrictions imposed by the easement.  Therefore, the company was required to buy the entire parcel.

The Utah Code does not specifically address “uneconomic remnants,” but a property owner could argue that additional compensation was due if a property taking created an economically unusable portion of property, possibly by claiming severance damages.  See Lucas v. South Carolina Coastal Comm’n, 505 U.S. 1003 (1992).

LAND USE REGULATION

Moretco, Inc. v. Plaquemines Parish Council, 112 So.3d 287 (La. Ct. App. 2013). 

The Louisiana Court of Appeals upheld a moratorium on a retail development project, so that a parish could conduct additional studies on the project’s impact.  Louisiana does not have the early vesting rule that Utah has, so the parish’s ordinances could change even though the application was pending.  The court discussed when zoning are arbitrary and capricious.

Under Utah’s early vesting rule, it is at least arguable that the studies called for would constitute a compelling, countervailing public interest that would allow the ordinance change.  See Western Land Equities v. Logan, 617 P.2d 388 (Utah 1980); see also Utah Code Ann. § 10-9a-509 and 17-27a-508.

Spokane County v. Eastern Washington Growth Management Hearings Bd., 293 P.3d 1248 (Wash. Ct. App. 2013).

The Washington Court of Appeals upheld a decision to rezone property, because the zoning proposal was consistent with the county’s goals and policies.

In Utah, zoning decisions are given deference, and are usually left undisturbed if the local government had a rational reason to make the decision.  See Smith Investment Co. v. Sandy, 958 P.2d 245 (Utah Ct. App. 1998).

Wolk v. Seminole County, 117 So.3d 1219 (Fla. Ct. App. 2013). 

The Florida Court of Appeals described this case as “very unusual.”  The county’s Board of Adjustment denied a variance application to adjust a fence requirement, because the application did not meet the six standards for a variance.  The property owners appealed that decision to the County’s Commissioners (as provided in Florida law).  The commission granted the variance, even though it decided that one was not necessary. The County Commissioners did not evaluate the application under the six criteria.  The county eventually characterized the action as a “variance in name only,” and the property owner evidently could construct the fence as desired.

On appeal, the court concluded that the county had granted a variance, but that it did not consider the six variance criteria as it should have done.  The variance was thus illegal.

In Utah, a variance may only be granted after consideration of five statutory criteria (which are fairly similar to Florida’s).  See Save Our Canyons v. Salt Lake County, 2005 UT App 285.  Appeals of variance applications are not taken to a legislative body, but directly to a district court.  See Utah Code Ann. §§ 10-9a-70 and 17-27a-70  This case demonstrates the problems that can occur when a local government attempts to circumvent statutory requirements in order to appease constituents.

TAKINGS

Durrett Investment Co. v. Clarksville, 2013 Tenn. App. LEXIS 110.

The Tennessee Court of Appeals reversed an order dismissing a property owner’s claims for inverse condemnation.  The court did not discuss the merits of the argument, but remanded the matter for consideration.  The property owner claimed a taking of his property because the city imposed an 8-month moratorium on all development, evidently to protect a highway corridor.  Essentially, the court concluded that the property owner’s claims for inverse condemnation (or regulatory taking) should have been heard by the trial judge.

The Utah Code allows temporary zoning regulations, including a moratorium on all development. See Utah Code Ann. §§ 10-9a-504 and 17-27a-504. There has been no case claiming a taking of property due to a moratorium.

Las Vegas v. Cliff Shadows Professional Plaza, 293 P.3d 860 (Nev. 2013).

A city showed that it owned an easement across private property, stemming from a federal land patent.  Since the city owned the easement, there was no taking.

In Utah, if a condemning agency shows that it owns a property interest, or has rights to use the property, there is no taking of that property interest.  In order to claim a taking, a person must have a property interest.  See Bingham v. Roosevelt City, 2010 UT 37.

Smith v. Park County, 291 P.3d 947 (Wyo. 2013).

The Wyoming Supreme Court reversed a dismissal of an inverse condemnation suit which arose when a county claimed ownership of a private roadway.  The court held that inverse condemnation claims are not barred by government immunity, and that the applicable statute of limitations was 8 years.

The Utah Code includes a provision that a public roadway may be created by longstanding use of private property.  See Utah Code Ann. § 72-5-104.  There has been no specific decision from a Utah Court concerning what the statute of limitations would be for a takings claim.

New Case — Krejci v. Saratoga Springs

Posted on: December 11th, 2013 by Cortney Taylor

Utah Supreme Court

2013 UT 74 (Click for full text)

Filed: December 10, 2013

The Utah Supreme Court issued this opinion explaining its reasons for ordering that a referendum to overturn a zoning decision be placed on the ballot for the 2013 municipal elections.

At the request of the property owner, Saratoga Springs adopted a “site specific” rezoning in 2012.  The change affected only one parcel, and did not create a new zoning classification (it changed the zoning from one class to another). It was, however, adopted by the City Council as an ordinance.  A citizens group opposed the change, and acquired enough signatures to require a referendum to overturn the ordinance.  The City agreed to place the referendum on the 2013 ballot, but the property owner obtained an order from the district court enjoining the City from proceeding.  The citizens group was not a party to the district court action, and did not participate, although they were aware of it. The City complied with the order, and the citizens group petitioned the Utah Supreme Court for an extraordinary writ, asking that the referendum be placed on the fall ballot.  In August of 2013, the Supreme Court agreed with the citizens, and ordered that the referendum proceed.  In the fall election, the voters approved the referendum, and the zoning change was overturned.

When the Court granted the extraordinary writ, it did not elaborate on its reasoning.  This opinion provides the reasoning, and answers the arguments against the order.

The citizens group was able to petition for the extraordinary writ, because there was no other remedy available. Ordinarily, a petitioner must “exhaust all available avenues of appeal.”   The citizens were not a party to the district court action, and they did not attempt to be joined, even though they were aware of the proceedings.  Since they were not a party to that action, they could not appeal the decision.  Given the short time frame before the election, the Court held that the citizens thus had no other recourse than an extraordinary writ.   The property owners argued that the citizens group could have joined the district court action, and should thus be barred from pursuing the writ. The Court disagreed, and allowed the writ.

Turning to the referendum, the Court determined that the public’s right to exercise legislative authority through referenda or initiatives includes the right to overturn “site specific” zoning ordinances.  The Utah Constitution establishes that legislative power may be exercised by the people through initiative or referendum.   The Court reasoned that an ordinance which changes a zoning designation, even one which affects a single parcel, is a “new law,” and thus eligible for a voter referendum.  by doing so, the Court abandoned earlier cases which had held that zoning decisions were not eligible for voter referenda.

The Court discussed the difference between legislative decisions, which make “new law” and involve “weighing broad, competing policy decisions;” and administrative decisions, which apply existing law and only involve individual persons or property.  Because the zoning change was a new law made after weighing broad, competing policy consideration, it could be  subject to a referendum initiated by citizens.   Thus, any zoning change may be overturned by a voter referendum.

The Court distinguished zoning ordinances from conditional use permits and variances, explaining that the latter actions are examples of administrative decisions, because they apply existing law to individual circumstances.

New Case Summary — Van Denburgh v. Sweeney Land Co.

Posted on: November 7th, 2013 by Cortney Taylor

Utah Court of Appeals

2013 UT App 265

Filed:  November 7, 2013

The Court of Appeals reviewed a claim that a property owner had acquired a prescriptive easement on a neighboring property.  In the decision, the Court reiterated some of the important factors relevant to establishing a prescriptive easement.

To establish a prescriptive easement, a party must show all elements by clear and convincing evidence.

An easement may be established by showing that use of the property is (1) open, (2) notorious, (3) adverse to the property owner, and (4) continuous for at least 20 years.  It is not necessary to prove these four elements in any particular order.

If the claimant establishes these four elements, the property owner may still defeat the prescriptive easement by showing that the use was permissive.  If the property owner allowed the use, and no damage occurred, the presumption is that the use was permissive, and not a prescriptive right.

Use by a person in common with the public generally is regarded as permissive.

Full Text of Van Denburgh v. Sweeney Land Co.

New Case Summary — Olsen v. Park City

Posted on: November 7th, 2013 by Cortney Taylor

Utah Court of Appeals

2013 UT App 262

Filed:  November 7, 2013

The Court of Appeals held that “enactment” in § 801 of LUDMA includes all actions needed for an ordinance to become valid. This means that the time to appeal an ordinance adopted by a local government will begin to run from the date the final action is taken to make the ordinance “valid.”

In this case, a group of citizens challenged an ordinance approving a subdivision.  The ordinance was adopted by the City Council on February 25, received the required signatures from the Mayor and other city officials, and it was published on March 3.  The appeal was filed on March 31.  The City argued that the 30-day time period for an appeal began to run on February 25, when the City Council approved the ordinance.  However, the Court of Appeals found that the time for appeal began to run on March 3, when the ordinance was published.

The Court reasoned that publication was the final step in the ordinance’s “enactment.”  The Court interpreted the term “enactment” in § 801 of LUDMA as meaning all of the steps to give an ordinance full validity.  Adoption by the City Council was an important step, as was the signature from the Mayor.  However, according to the City Code, ordinances do not take effect until they are published, so publication is the final step, and the appeal period begins to run from the publication date.

Full Text of Olsen v. Park City

Hello world!

Posted on: September 3rd, 2013 by Cortney Taylor

Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!