Friday, April 08, 2005

Utah Court Rules on Takings

Thanks to Neil Lindberg, who forwarded this link to the Utah Court of Appeals ruling yesterday on a takings case in Salt Lake County. The issue has to do with a lot made unbuildable because of a prohibition on building on steep slopes, and the failure of the Board of Adjustment to grant a variance, as well as a lot of other things going on.

Note particularly, Neil says, the discussion by the court on "findings of fact" and "conclusions of law," something we tell everyone to make sure their commissions and boards do.


At 10:50 AM, Blogger Planski said...

Not a lot to say here, but make sure your approval bodies are putting adequate findings into the record and you and your attorneys are helping them do that. Give them some training!

But, what worries me is the direction that could be occurring with FCOZ, other hillside ordinances, and I think, geologic ordinances, and building over other sensitive areas. If your boards are relying on having some engineer stamp approval to build something, you better have a good peer review system. I am not sure how much it costs to make a stamp and sign it. Engineers solve problems, and they will, and that is no slam on them. The only real variable is the money it takes to implement design solutions. But, I hope the courts allow the legislative bodies to make new ordinances to protect the greater good.

At 11:19 AM, Blogger Countryman said...

It looks to me like the Court said you had to show your valid governmental purpose. Since it was hinted at and the County relied mainly on the premise that the guy didn't try to get a permit, they said a trial to look at the facts would be appropriate now.
My experience with geologic reports for one lot in a larger hazard area dealing with slope stability on an ancient landslide was not good.
To get good advice we had to do a rather expensive detailed topography analysis and then after that drilling for core samples and inclinomiet studies before calculations would be available to answer the larger question of safety from slope failure. It was way to much for an individual lot owner to do. It was more than the public had in its purse until the lawsuit made it happen.
I see the courts were not satisfied with the County's explanation, but they don't seem to have reconciled the dire warnings the geologists give the municipal authorities with the inexactness of the toola availvable to resolve the problem.
The State warns us about a potential problem, but fails to quantify it sufficiently to understand the risk. The County acts on the warning and tries to pass the risk to the property developer, but the answer turns out to cost too much to be acceptable.
Perhaps this will come out at trial on the merits. I for one and vitally intersted in the outcome.

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