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9-500.12 Appeals Of Municipal Actions; Dedication Or Exaction; Excessive Reduction In Property Value; Burden Of Proof; Attorney Fees

9-500.12. Appeals of municipal actions; dedication or exaction; excessive reduction in property value; burden of proof; attorney fees

A. Notwithstanding any other provision of this chapter, a property owner may appeal the following actions relating to the owner's property by a city or town, or an administrative agency or official of a city or town, in the manner prescribed by this section:

1. The requirement by a city or town of a dedication or exaction as a condition of granting approval for the use, improvement or development of real property. This section does not apply to a dedication or exaction required in a legislative act by the governing body of a city or town that does not give discretion to the administrative agency or official to determine the nature or extent of the dedication or exaction.

2. The adoption or amendment of a zoning regulation by a city or town that creates a taking of property in violation of section 9-500.13.

B. The city or town shall notify the property owner that the property owner has the right to appeal the city’s or town’s action pursuant to this section and shall provide a description of the appeal procedure. The city or town shall not request the property owner to waive the right of appeal or trial de novo at any time during the consideration of the property owner's request.

C. The appeal shall be in writing and filed with or mailed to a hearing officer designated by the city or town within thirty days after the final action is taken. The municipality shall submit a takings impact report to the hearing officer. No fee shall be charged for filing the appeal.

D. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be heard not later than thirty days after receipt. The property owner shall be given at least ten days' notice of the time when the appeal will be heard unless the property owner agrees to a shorter time period.

E. In all proceedings under this section the city or town has the burden to establish that there is an essential 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 section 9-500.13. If more than a single parcel is involved this requirement applies to the entire property.

F. The hearing officer shall decide the appeal within five working days after the appeal is heard. If the city or town does not meet its burden under subsection E of this section, the hearing officer shall:

1. Modify or delete the requirement of the dedication or exaction appealed under subsection A, paragraph 1 of this section.

2. In the case of a zoning regulation appealed under subsection A, paragraph 2 of this section, the hearing officer shall transmit a recommendation to the governing body of the city or town.

G. If the hearing officer modifies or affirms the requirement of the dedication, exaction or zoning regulation, a property owner aggrieved by a decision of the hearing officer may file, at any time within thirty days after the hearing officer has rendered a decision, a complaint for a trial de novo in the superior court on the facts and the law regarding the issues of the condition or requirement of the dedication, exaction or zoning regulation. In accordance with the standards for granting preliminary injunctions, the court may exercise any legal or equitable interim remedies that will permit the property owner to proceed with the use, enjoyment and development of the real property but that will not render moot any decision upholding the dedication, exaction or zoning regulation.

H. All matters presented to the superior court pursuant to this section have preference on the court calendar on the same basis as condemnation matters, and the court shall further have the authority to award reasonable attorney fees incurred in the appeal and trial pursuant to this section to the prevailing party. The court may further award damages that are deemed appropriate to compensate the property owner for direct and actual delay damages on a finding that the city or town acted in bad faith.

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Local Government
Doug Ducey
Doug Ducey
January 5, 2015 -
1700 West Washington Street, Phoenix, AZ, 85007