[HISTORY: Adopted 3-13-2017 by Ord. No. 768. Amendments noted where applicable.]
As used in this chapter, the following terms shall be defined
as follows:
A person directly impacted by an action or decision of the
City such that the person would have standing in a court of law to
challenge the action.
The Board of Administrative Review established herein.
Any act or omission in violation of any applicable law or
actions that are not authorized by any applicable law.
The administrative review procedures set forth in this chapter
shall apply to all final actions of any City Officer, employee, board,
commission, or the Board of Aldermen that are claimed by an aggrieved
party to be unlawful or an unconstitutional taking of property without
compensation; provided however, that this chapter shall not apply
to _____ (left blank)_____. The City shall not intentionally take
any action that is unlawful nor shall it unconstitutionally deprive
property owners of real property interests without just compensation.
This chapter shall be construed to provide for the objective and fair
review of claims by aggrieved persons asserting unlawful actions of
the City or unconstitutional deprivation of vested real property rights
or interests, without just compensation. Nothing contained herein
shall be construed to limit the ability of the City to lawfully fulfill
its duties and functions.
A.
Review Board established. There is hereby established the Board of
Administrative Review to review petitions pursuant to this chapter.
The Board of Aldermen hereby designates the Board of Adjustment of
the City of Moscow Mills to act as the Board of Administrative Review
(hereinafter referred to as "the Review Board") to hear and consider
petitions within the scope of this chapter. The Review Board may establish
additional procedures to fulfill the purposes of this chapter.
B.
Exhaustion. Any aggrieved party shall petition to the Review Board
for a review of any final action of any City Officer, employee, board,
commission, or the Board of Aldermen within the scope of this chapter.
To the fullest extent permitted by law, the review procedures herein
shall be exhausted before any action may be filed in any court against
the City or its officers, employees, boards, Board of Aldermen, officials
or commissions.
The following procedures for review of a final action shall
be followed:
A.
Final action. The person petitioning for review shall obtain a final
action before requesting review.
B.
Petition for review. Within 14 days from the date of the final action,
the person requesting the review shall file, in the office of the
City Clerk, a written petition for review of that decision. A copy
shall also be filed with the City Attorney.
C.
Initial review of final action. The City Clerk, in consultation with
the City Attorney where appropriate, shall review each petition and
determine whether it seeks review authorized by this chapter. In the
event that the petition does not allege a review authorized by this
chapter, the petition shall be dismissed upon direction of the City
Clerk.
D.
Stay of final action. Upon request of the petitioner, the Review
Board may stay pending its review the final action of any decision,
other than a decision of the Board of Aldermen, upon a showing:
1.
That the petitioner has a substantial likelihood of demonstrating
that the final action to be reviewed is unlawful or an unconstitutional
taking,
2.
Irreparable harm if such stay is not issued, and
3.
That the public interest would not be harmed by issuance of such
stay. Where the final action is a decision of the Board of Aldermen,
the petitioner may seek such stay from the Board of Aldermen, whereupon
in its discretion, such stay may be granted pending review by the
Review Board.
E.
Hearing date. The Review Board shall set a time to review the decision
that gave rise to the petition as soon as reasonably practical and
shall provide public notice of such meeting. The Review Board shall
hear and consider the evidence related to and submitted by the petitioner,
the City or other interested parties in the discretion of the Review
Board. The hearing shall include written submittals.
F.
Hearing requirements. Unless a hearing or the requirements herein
are waived by petitioner, each hearing shall provide a record of the
proceedings (by audio, video, stenographic, or other reliable means
of recording capable of transcription) and shall permit the parties
to introduce evidence under oath, and shall provide for cross-examination,
when requested. The formal hearing requirements herein shall be deemed
waived if not affirmatively requested by petitioner in its petition.
G.
Removal. The Board of Aldermen or the Mayor may remove any matter
directly to the Review Board for review by filing notice with the
Board to such effect.
H.
Exception. Nothing herein regarding hearing requirements shall prevent
summary decision on any petition where there is no genuine dispute
as to the relevant facts.
In the event that the aggrieved party claims irreparable harm
will occur unless immediate review is granted, the party may request
expedited review, upon facts justifying such action alleged by affidavit,
whereupon the Review Board, if it determines it is appropriate, shall
shorten the time for submissions and review.
A.
Initial filing information. With the petition for review, or within
seven days prior to the date of hearing, the petitioner shall submit
the following by affidavit:
1.
The name of the petitioner requesting review;
2.
The precise final action to be reviewed, including the date, the
decision maker, and copies of all documentation of the decision;
3.
If injury to an interest relating to real property is claimed, the
legal description of the property and the name and business address
of the current owner of the property; the form of ownership, i.e.,
whether sole proprietorship, for-profit or not-for-profit corporation,
partnership, joint venture or other; and if owned by other than a
real person, the name and address of all partners or shareholders
owning 10% or more of the outstanding shares;
4.
A detailed description of the factual and legal grounds for the claim
that the final action is unlawful or constitutes an unconstitutional
taking, without just compensation; and
5.
A description of the protectable right or property interest claimed
to be affected, including a statement of any claimed or threatened
damages and the basis for such computation.
B.
Supplemental information. If the Review Board determines that additional
information is needed, the Review Board may further require legal
briefing or such other information to be submitted by affidavit as
may be deemed necessary for adequate and prompt review. With regard
to claims of unconstitutional takings, the Review Board also requests:
1.
The evidence and documentation as to the value of the property interest
claimed taken, including the date and cost at the date the property
was acquired. This material should include any evidence of the value
of that same property before and after the alleged unconstitutional
taking; the name of the party from whom purchased, including the relationship,
if any, between the person requesting a review; and the party from
whom the property was acquired;
2.
The terms, including sale price, of any previous purchase or sale
of a full or partial interest in the property during the three years
prior to the date of application;
3.
All appraisals of the property prepared for any purpose, including
financing, offering for sale, or ad valorem taxation, within the three
years prior to the date of application;
4.
The assessed value of, and ad valorem taxes on, the property for
the previous three years;
5.
All information concerning current mortgages or other loans secured
by the property, including the name of the mortgagee or lender; current
interest rate, remaining loan balance and term of the loan and other
significant provisions including, but not limited to, the right of
purchasers to assume the loan;
6.
All listings of the property for sale or rent, price asked and offers
received, if any, within the previous three years;
7.
All studies commissioned by the petitioner or agents of the petitioner
within the previous three years concerning feasibility of development
or utilization of the property;
8.
For income-producing property, itemized income and expense statements
from the property for the previous three years;
9.
Information from a title policy or other source showing all recorded
liens or encumbrances affecting the property; and
10.
Such additional information reasonably necessary, in the Review Board's
opinion, to arrive at a conclusion concerning the nature of and the
value of the alleged unconstitutional taking.
The Review Board shall review the facts and information presented
by the petitioner and determine if the final action is unlawful or
constitutes an unconstitutional taking without just compensation.
In doing so, the City Attorney shall serve as legal counsel and shall
be consulted. The Review Board shall review the facts in light of
the applicable City, State, and Federal law. An affirmative vote of
four of the five members of the Review Board shall be required to
support any decision.
If the Review Board fails to hear and decide the petition within
30 days after the filing of the petition, the final action of the
City Officer, employee, board, commission, or Board of Aldermen shall
be deemed to be submitted to the Board of Aldermen without recommendation;
provided however, the Review Board may extend the time to reach a
decision, not exceeding an additional 120 days following the receipt
of the information required pursuant to this chapter, if prior to
the expiration of the thirty-day period, the Review Board notifies
the petitioner, in writing, of such extension.
A.
After completing the review, the Review Board shall make a recommendation
regarding the petition to the Board of Aldermen or the appropriate
officer, employee, board or commission. The evidence before the Review
Board shall be submitted to the Board of Aldermen for its determination.
B.
The Board of Aldermen shall have 30 days to take action on the petition
or recommendation of the Review Board, unless extended by the Board
of Aldermen for cause. To the extent permitted by law, no petition
shall become final for purposes of judicial review of the action subject
to review until the effective date of Board of Aldermen action on
the petition, or upon expiration of the review period after the petition
is submitted to the Board of Aldermen.
The decisions of the Review Board rendered pursuant to the provisions
of this chapter are advisory, and shall not be construed to expand
or limit the scope of the City's liability for any claimed unlawful
action or unconstitutional taking of a vested property interest. The
decision of the Review Board rendered pursuant to the provisions of
this chapter is not admissible in court for any purpose other than
to demonstrate that the petitioner has exhausted the requisite administrative
remedies, and in no event shall any recommended compensation be admissible
into evidence. The decision of the Board of Aldermen pursuant to the
preceding section shall be deemed the final decision for purposes
of judicial review.