Appeals asserting that a final discretionary decision or a zoning regulation constitute a "taking" of property in violation of the Fifth Amendment to the United States Constitution (a "takings appeal") shall be processed in accordance with this section.
(1) Decisions subject to appeal.
a. A takings appeal may be filed by a property owner are as follows.
1. Where the property owner has a legally recognized property interest in the property that is subject to the city decision; and
2. Where a final discretionary administrative decision has been made by the development services director, zoning examiner or the mayor and council to require the dedication of property or the payment of a monetary exaction as a condition for the approval of the development application in a manner that is alleged to constitute a taking of property; or
3. A zoning regulation has been adopted or amended and is alleged to constitute a taking of property.
b. A takings appeal may not be filed by a property owner regarding the application of fees, assessments, taxes or any other dedication or exaction required by a legislative act that does not give discretion to the administrative agency or official to determine the nature or extent of the requirement.
(2) Filing of appeal. An appeal shall be in writing and filed with or mailed to the zoning examiner within thirty (30) days after the final action is taken. Final action on a zoning regulation shall be the effective date of the regulation. No fee shall be charged for an appeal under this section 23A-63.
(3) Public hearing and notice of public hearing. The zoning examiner shall schedule a public hearing on the appeal to be held no later than thirty (30) days after receipt of the appeal. Notice of the public hearing shall be mailed to the appellant and to all parties entitled to notice of the administrative decision at least ten (10) days before the appeal is heard.
(4) Statement of city authority. In all proceedings under this section 23A-63, the city shall provide the zoning examiner with a statement of the city's authority to require the dedication or exaction or to adopt or amend the zoning regulation. The city has the burden to establish in its statement of authority the nexus between the dedication or exaction and a legitimate governmental interest and that the proposed dedication, exaction or zoning regulation is roughly proportional to the impact of the proposed use, improvement or development or, in the case of a zoning regulation, that the zoning regulation does not create a taking of property in violation of the Fifth Amendment to the United States Constitution.
(5) Zoning examiner's decision. The zoning examiner shall decide the appeal within five (5) days after the appeal is heard. If the city has met it's burden set forth in subsection (4) above, the appeal shall be denied. If the city has failed to meet it's burden as set forth in subsection (4) above, the zoning examiner shall:
a. In the case of a dedication or exaction, modify or delete the requirement appealed under this section.
b. In the case of a zoning regulation, transmit a recommendation for further action to the mayor and council.
(Ord. No. 9967, § 9, 5-17-04)