Bill Text

How to Stop Takings Legislation in Your State

What to Watch Out For

Although framed as private property protection, the takings agenda specifically undermines environmental legislation, land use laws, and rules and regulations designed to protect public health. Those pushing for the passage of takings legislation have promoted four types of bills that should set off red flags.

Impact Assessment Laws

Impact assessment laws require a designated public agency to conduct costly and unneeded assessments for proposed regulatory measures and adopt additional rules and regulations to determine how they will affect private property rights. These laws are modeled after environmental impact assessment laws.

Compensation Laws

Compensation laws require property owners to be given tax dollars when laws affect property use, by a predetermined percentage varying from 10 percent to 50 percent.

Conflict Resolution Laws

Conflict resolution laws set bureaucratic processes for negotiation between landowners and the public agency, sometimes through the establishment of a new office for conflict resolution.

Amortization Restrictions

Amortization restrictions limit or prohibit a local agency from assigning or determining the best uses of land.

Specific Bill Titles to Watch Out For

In recent years, model legislation being pushed by takings proponents has shown up in state legislatures throughout the country.

• The American Legislative Exchange Council (ALEC) is pushing the “Private Property Protection Act.” Key components of this bill include a definition of regulatory takings, governmental compensations for property rights, inverse condemnation procedures, regulatory rollback procedures, legal challenges, and tax adjustments.
• In 1994, the “Private Property Protection Act” was introduced in Utah and, in 1996, it was introduced in Kansas. In West Virginia, the bill is titled the “Private Real Property Protection Act.” In 2003, similar legislation, the “Private Property Protection Act,” was introduced in Maryland, but it died on adjournment.
• The “Private Property Rights Protection Act” passed in Florida in 1995. This law seriously undermines the implementation of smart-growth planning.
• The “Property Owner’s Rights Act,” California SB 153, would require a detailed “private property takings impact analysis” prior to undertaking any agency action that “may significantly impair the use of private property.”
• In 1995, the “Land Use and Environmental Dispute Resolution Act” passed in California, and further impedes the exercise of local regulatory authority.
• The “Agricultural and Forestry Activity Act,” passed in Mississippi in 1994, defines a taking to mean a reduction in the fair market value of any part or parcel by 40 percent or more.
• The “Real Property Rights Preservation Act” became Texas law when Governor George W. Bush signed it in 1995. The statute defines a taking as a government action which causes “a reduction of at least 25 percent in the market value of the affected private real property.”
• In Idaho, the Cattlemen’s Association has proposed a constitutional amendment to extend the concept of takings and compensation to include “appurtenances” to real property such as their cattle. In 1994, Idaho passed the “Regulatory Takings Act”; in Wyoming, the bill is titled the “Regulatory Takings Act.”
• The “Farm & Forest Land Protection Act,” backed by the Farm Bureau, establishes a voluntary statewide program which would allow a farmer to sell his farm’s development rights and keep his land in agricultural use in perpetuity.
• At the Federal level, the National Association of Homebuilders (NAHB) pushed for the “Private Property Rights Implementation Act” to allow developers to circumvent local procedures and sue local officials in federal court early in the land use planning process.

  See the State Activity Page for more information on past state takings activity.

Future Takings Trends to Watch For

Harvey Jacobs, in “The Impact of State Property Rights Laws,” identifies four trends to watch for in future fights over takings.

State Legislatures Will Be the Primary Battleground

Land disputes are local in nature, so this struggle will continue to unfold in statehouses rather than in the U.S. Congress.

Conflict Resolution Laws Will Become More Popular

On the surface, employing a dispute resolution process appears to be a good compromise. However, these bills will lead to the imposition of onerous compensation requirements by limiting public agencies’ ability to negotiate.

Backlash Against Homeowners and Takings Re-characterized as Givings

Homeowners, who are the majority of property owners, benefit from the certainty and protection of property values that land use regulations provide. As it becomes more apparent that property rights legislation places these interests at risk, individual homeowners will become more likely to weigh in on the side of reasonable public agency regulation.

Renewed Creativity Among Regulators

The push for state-based legislation has resulted in renewed creativity among regulators, who are looking for new ways to balance the interests of property owners with the mandate to protect the public good through environmental planning and policy. Regulators are increasingly engaging experimentation at the state and local levels and are finding a citizenry both more demanding of, and receptive to, creative solutions.

SERC would like to give special thanks to John D. Echeverria of the Georgetown Environmental Law and Policy Institute for his assistance in assembling this package.