April 15, 2009
I am writing on behalf of my clients and professional colleagues, several of whom are supporters of and contributors to http://www.friendsofoldtown.com . On March 25, 2009, with a motion, a second, and 3-2 vote, the Park City Planning Commission recommended that the City Council adopt changes to the City’s Land Management Code that would have severe and punitive effects on all property owners in Old Town. A last-minute alteration makes the changes apply to all lots in Old Town after the City made everyone think the amendments would apply only to steeper sloped lots. If adopted by the Council, the code change could expose the City to property takings claims that could reach stunning amounts.
In catching the Old Town flatter-lot owners off-guard without prior notice, with its last-minute expansion of the amendments, the Planning Commission violated any notion of fair play, decency and justice, let alone due process. The City led everyone to believe that the changes would apply only to steeper sloped lots. Every notice on the topic that the City published since October 2008 has stated "Steep Slope," and every meeting on, and every version of, the proposed changes prior to March 25th were limited to steeper-sloped lots.
The original version of the proposed changes was debated for several months. Over that period of time, citizens, planners, architects, engineers, developers and lawyers in the community were all given ample time to address the original version. The application of the amendments to flatter lots in Old Town needs to be vetted in a fair manner with scrutiny and debate. The application of the proposed changes to specific lots is a complicated and time-consuming process. Each property owner must have her own property analyzed in depth to confirm the impact from the ordinance change. The community deserves to have sufficient time to review it, praise it, criticize it and suggest changes.
If the City wants to further restrict and regulate property use in Old Town, then it needs to adopt the scheme that has the least negative impact on property owners which reasonably achieves the stated purpose and goals of the ordinance change. However, if the change goes too far in regulating private property, then the City must compensate the property owners.
As originally proposed, the amendments would have led to multiple property taking claims against the City. Recent changes apparently attempting to alleviate potential taking claims still remain unclear and are still being modified by the City. In 1922, Oliver Wendell Holmes wrote, "While property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking." A taking of property requires the government to pay the owner just compensation. The defense costs for the City, let alone the cumulative takings amount in Old Town, could be staggering. As captured in the minutes of the March 4, 2009, meeting, Planning Commissioner Adam Strachan, an attorney with Strachan & Strachan, confirmed, "There were a lot of comments about takings and he reminded everyone that the remedy is compensation for the taking. The City is able to do it, but they need to pay compensation for it. Commissioner Strachan did not think the City should back away from implementing regulations that the Planning Commission and City Council think are important because the threat of a lawsuit may come and so-called taking may occur." Mr. Strachan is correct; if the City adopts the code changes, it needs to be prepared to pay the affected property owners just compensation for going too far in regulating their property.
The code amendments as originally proposed prohibited any cut and fill on sloped lots in Old Town. On March 25th the Planning Commission modified the cut and fill restriction to a maximum of 15 feet. This restriction will result in a taking to the extent it interferes with "distinct investment-backed expectations" which are calculated from the price paid for the property, the assessed property taxes, and the homes already built on the similar slopes in Old Town. Arnell v. Salt Lake County Board of Adjustment, 2005 UT App 165 17 n.14 remanding case to district court for trial on whether county’s prohibition of building on sloped lot is a taking and, if so, amount of just compensation owed to landowner.
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Following the Planning Commission’s recommendation could be costly for the City in terms of alienated constituents and potentially staggering defense costs and taking claims. Final action on the proposed amendments should be deferred until all of the ramifications, particularly the last minute changes, can be adequately studied and vetted by both the City and the property owners.
Bradley R. Cahoon is an attorney with the law firm of Snell & Wilmer L.L.P. in Salt Lake City.