13-43-204 - Office of the Property Rights Ombudsman -- Arbitration or mediation of takings or eminent domain disputes.
13-43-204. Office of the Property Rights Ombudsman -- Arbitration or mediationof takings or eminent domain disputes.
(1) If requested by the private property owner and otherwise appropriate, the Office ofthe Property Rights Ombudsman shall mediate, or conduct or arrange arbitration for, disputesbetween private property owners and government entities that involve:
(a) takings or eminent domain issues;
(b) actions for eminent domain under Title 78B, Chapter 6, Part 5, Eminent Domain; or
(c) disputes about relocation assistance under Title 57, Chapter 12, Utah RelocationAssistance Act.
(2) If arbitration or mediation is requested by a private property owner under this section,Section 57-12-14 or 78B-6-522, and arranged by the Office of the Property Rights Ombudsman,the government entity or condemning entity shall participate in the mediation or arbitration as ifthe matter were ordered to mediation or arbitration by a court.
(3) (a) (i) In conducting or arranging for arbitration under Subsection (1), the Office ofthe Property Rights Ombudsman shall follow the procedures and requirements of Title 78B,Chapter 11, Utah Uniform Arbitration Act.
(ii) In applying Title 78B, Chapter 11, Utah Uniform Arbitration Act, the arbitrator andparties shall treat the matter as if:
(A) it were ordered to arbitration by a court; and
(B) the Office of the Property Rights Ombudsman or other arbitrator chosen as providedfor in this section was appointed as arbitrator by the court.
(iii) For the purpose of an arbitration conducted under this section, if the dispute to bearbitrated is not already the subject of legal action, the district court having jurisdiction over thecounty where the private property involved in the dispute is located is the court referred to inTitle 78B, Chapter 11, Utah Uniform Arbitration Act.
(iv) An arbitration award under this chapter may not be vacated under the provisions ofSubsection 78B-11-124(1)(e) because of the lack of an arbitration agreement between the parties.
(b) The Office of the Property Rights Ombudsman shall issue a written statementdeclining to arbitrate or to appoint an arbitrator when, in the opinion of the Office of the PropertyRights Ombudsman:
(i) the issues are not ripe for review;
(ii) assuming the alleged facts are true, no cause of action exists under United States orUtah law;
(iii) all issues raised are beyond the scope of the Office of the Property RightsOmbudsman's statutory duty to review; or
(iv) the arbitration is otherwise not appropriate.
(c) (i) The Office of the Property Rights Ombudsman shall appoint another person toarbitrate a dispute when:
(A) either party objects to the Office of the Property Rights Ombudsman serving as thearbitrator and agrees to pay for the services of another arbitrator;
(B) the Office of the Property Rights Ombudsman declines to arbitrate the dispute for areason other than those stated in Subsection (3)(b) and one or both parties are willing to pay forthe services of another arbitrator; or
(C) the Office of the Property Rights Ombudsman determines that it is appropriate toappoint another person to arbitrate the dispute with no charge to the parties for the services of the
appointed arbitrator.
(ii) In appointing another person to arbitrate a dispute, the Office of the Property RightsOmbudsman shall appoint an arbitrator who is agreeable to:
(A) both parties; or
(B) the Office of the Property Rights Ombudsman and the party paying for the arbitrator.
(iii) The Office of the Property Rights Ombudsman may, on its own initiative or uponagreement of both parties, appoint a panel of arbitrators to conduct the arbitration.
(iv) The Department of Commerce may pay an arbitrator per diem and reimburseexpenses incurred in the performance of the arbitrator's duties at the rates established by theDivision of Finance under Sections 63A-3-106 and 63A-3-107.
(d) In arbitrating a dispute, the arbitrator shall apply the relevant statutes, case law,regulations, and rules of Utah and the United States in conducting the arbitration and indetermining the award.
(e) The property owner and government entity may agree in advance of arbitration thatthe arbitration is binding and that no de novo review may occur.
(f) Arbitration by or through the Office of the Property Rights Ombudsman is notnecessary before bringing legal action to adjudicate any claim.
(g) The lack of arbitration by or through the Office of the Property Rights Ombudsmandoes not constitute, and may not be interpreted as constituting, a failure to exhaust availableadministrative remedies or as a bar to bringing legal action.
(h) Arbitration under this section is not subject to Title 63G, Chapter 4, AdministrativeProcedures Act, or Title 78B, Chapter 6, Part 2, Alternative Dispute Resolution Act.
(i) Within 30 days after an arbitrator issues a final award, and except as provided inSubsection (3)(e), any party may submit the award, or any issue upon which the award is based,to the district court for de novo review.
(4) The filing with the Office of the Property Rights Ombudsman of a request formediation or arbitration of a constitutional taking issue does not stay any county or municipalland use decision, including the decision of a board of adjustment.
(5) Members of the Office of the Property Rights Ombudsman may not be compelled totestify in a civil action filed concerning the subject matter of any review, mediation, or arbitrationby the Office of the Property Rights Ombudsman.
Amended by Chapter 3, 2008 General Session
Amended by Chapter 382, 2008 General Session