By Mark LaRocco

RIVER HEIGHTS -- Private property ombudsman Craig Call visited the River Heights City Council Tuesday night to give a presentation on property rights and disputes.

His seminar, which lasted about 30 minutes, detailed some recent cases in which courts, including the Supreme Court, declared that what a city government had done to an individual was considered a taking.

The common real estate definition of "taking" is when a government seizes the title or takes physical possession of a property when it is in the best interest of the public, said Call.

But the more controversial cases include takings by regulation, when a government simply tells the owner what can be done with the land. These can cause the most friction between government and private citizens.

"How can a land use decision be challenged?" asked Call. He pointed out that the first thing to look for is constitutional restraint.

How does one know when it is not a taking and when it is considered a taking? Call said the first word on takings came from a 1922 case in which Justice Oliver Wendell Holmes said that it is a taking if "it goes too far." Some believe that the lack of specificity in that statement has allowed for a number of cases without any real test to determine takings, he said. The 1922 case, Pennsylvania Coal Company v. Mahon, showed that if a land ruling is so restrictive that a landowner is deprived of any economic use out of the land, then it is a taking according to the Fifth Amendment.

One important point, Call said, was that if a city demands a certain usage of a landowner's property, the city must do some other things.

"If a local government is going to impose a burden, they must show that it makes sense," Call said. The city may not change access rights, block "light, air, and view," and alter the pre-existing use of the property. These are some examples of what a local government may not do to private property without sufficient reason and just compensation.

One of the most famous cases, Lucas v. South Carolina Coastal Council (1992), showed that when the government imposes new restrictions on a property without fair compensation, that is considered a taking. In that case, homeowner David Lucas was forbidden to rebuild his home after Hurricane Hugo destroyed it. Lucas' construction was restricted because South Carolina had just passed the Beachfront Management Act to control sand erosion. The U.S. Supreme Court reversed the decision upon appeal, because Lucas would not be justly compensated.

In resolving land use disputes, Call said litigation is the last resort. He showed that there are actually three stages a dispute should pass through before lawyers are needed. First, negotiation between the feuding parties should be sought. Then there is conciliation, which is similar to negotiation but involves some compromise. The third step is mediation, which requires a third party to mediate, such as the ombudsman himself. If none of those steps works then arbitration is necessary, and lawyers are used on both sides to write resolutions to avoid actual litigation.

The Utah private property ombudsman is a job that former Rep. Evan Olsen created six years ago, and the state asked Call to advise property owners and local governments about property rights. For some reason, he says has not been well received so far.

"I've contacted about 300 cities and only three or four asked me to come and talk to them," he said.

He speculated that many are afraid to get a state employee involved when they have not done anything wrong. And they have not, he said; he is just assigned to do this by the state of Utah. Eight years ago, the Utah Legislature asked local governments to provide guidelines on property takings for the benefit of residents. That is how Call got his job.

Call gave the city council a proposal for land use regulations that they can choose whether or not to adopt. To help prevent and resolve disputes, some council members see it as a necessity to adopt the policy.

"We'll put in on [the agenda] for the next city council," said Councilman Noel Cooley.

Call believes his job is important, and he wishes more people would listen to his advice. He said that he just gives people another way to get things solved before they go to court.

"Over 30 percent of the calls I get," said Call, "are local governments calling to make sure that [what they are doing] is not a taking."

NW
TJ

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