11-832. Appeals of county actions; dedication or exaction; excessive reduction in property value; burden of proof; attorney fees; compliance with court decisions

L10, Ch. 244, sec. 7. Eff. 10/1/11)

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

1. The requirement by a county 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 that is required in a legislative act of the board of supervisors and that does not give discretion to an 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 county that creates a taking in violation of subsection I.

B. The county shall notify the property owner that the property owner has the right to appeal the county's action pursuant to this section and shall provide a description of the appeal procedure. The county 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 board of supervisors within thirty days after the final action is taken. The county shall submit a takings impact report to the hearing officer. A fee shall not 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 county 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 subsection I. 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 county does not meet its burden under subsection E, the hearing officer shall:

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

2. In the case of a zoning regulation appealed under subsection A, paragraph 2, the hearing officer shall transmit a recommendation to the board of supervisors.

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, at any time within thirty days after the hearing officer has rendered a decision, may file 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. Pursuant to 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 may 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 county acted in bad faith.

I. A county or an agency or instrumentality of a county shall comply with the United States Supreme Court cases of Dolan v. City of Tigard, 512 U.S. 374 (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 320 (2002) and Arizona and federal appellate court decisions that are binding on Arizona counties interpreting or applying those cases.

11-832. Appeals of county actions; dedication or exaction; excessive reduction in property value; burden of proof; attorney fees; compliance with court decisions

L10, Ch. 244, sec. 7. Eff. 10/1/11)

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

1. The requirement by a county 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 that is required in a legislative act of the board of supervisors and that does not give discretion to an 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 county that creates a taking in violation of subsection I.

B. The county shall notify the property owner that the property owner has the right to appeal the county's action pursuant to this section and shall provide a description of the appeal procedure. The county 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 board of supervisors within thirty days after the final action is taken. The county shall submit a takings impact report to the hearing officer. A fee shall not 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 county 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 subsection I. 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 county does not meet its burden under subsection E, the hearing officer shall:

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

2. In the case of a zoning regulation appealed under subsection A, paragraph 2, the hearing officer shall transmit a recommendation to the board of supervisors.

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, at any time within thirty days after the hearing officer has rendered a decision, may file 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. Pursuant to 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 may 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 county acted in bad faith.

I. A county or an agency or instrumentality of a county shall comply with the United States Supreme Court cases of Dolan v. City of Tigard, 512 U.S. 374 (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 320 (2002) and Arizona and federal appellate court decisions that are binding on Arizona counties interpreting or applying those cases.