Existing
State Law
Four states have statutes on the books that explicitly
seek to go beyond established constitutional standards for
determining when compensation is due for an alleged taking.
Florida
In 1995, the Florida legislature passed two pieces of takings
legislation, the Bert J. Harris, Jr. Private Property Rights
Protection Act and the Florida Land Use and Environmental
Dispute Resolution Act. Both of these laws raise a number
of questions about how they should be interpreted. Nonetheless,
it is already apparent that these laws have seriously impeded
the exercise of local land use regulatory authority and
undermined the implementation of the Florida Growth Management
Act. As the procedures and standards for implementing the
laws become clearer, the adverse impacts are likely to become
more significant.
The Bert J. Harris Act only applies prospectively, so the
primary impact, in the short term, has been to chill the
normal process of amending and updating land use rules.
To date, no court has ordered payment under the act, although
a few cases have reportedly been settled.
Louisiana
In 1995, Louisiana adopted a takings measure which defines
a taking as a “reduction of twenty percent or more” in the
value of agricultural or forest land, and authorizes the
owner to sue to recover a sum equal to the diminution in
value. Significantly, an owner is not required to convey
title to the property to the public as a condition of receiving
payment. If an owner prevails in a suit under the measure,
the government has the option of rescinding the regulation,
but the government must pay for the diminution in value
while the law was in effect.
The twenty percent diminution in value threshold arguably
represents the most expansive takings standard in any state
takings law. On the other hand, the measure is limited to
restrictions that affect forest and agricultural land and
activity only, and contains several open-ended exemptions
which could restrict the scope of the payment obligation.
It is unclear whether any claim has been filed under the
measure.
Mississippi
The Mississippi takings measure, enacted in 1994, is very
similar to the Louisiana measure and undoubtedly provided
a model for the takings measure adopted in Louisiana. The
“Mississippi Agricultural and Forestry Activity Act” defines
a taking to mean a prohibition or restriction on an owner’s
use of property for forestry or agricultural activities
that results in a reduction in the fair market value of
the property “or any part or parcel thereof …by 40
percent or more.”
The act authorizes owners to sue for money damages and
allows an owner who recovers payment to retain title to
the property, unless the reduction in property rises to
the “100%” level. If the government is unable to make a
judicially mandated payment, the government action is automatically
rescinded. And, if the government is found liable, officials
have the option of rescinding the regulation, but the state
must pay for the period the regulation was in place.
Like the Louisiana measure, the act is limited to restrictions
on forest and agricultural lands. It applies only prospectively,
and includes several exceptions, but does not contain the
broad exemptions found in the Louisiana statute. It is unclear
whether any claims have been filed under the measure.
Texas
In 1995, the Texas legislature passed and then-Governor
(now President) George W. Bush signed the Texas Real Property
Rights Preservation Act. The act 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.”
It also requires government agencies to prepare takings
impact assessments (TIA) if an agency action “may result”
in a taking as defined in the act. If an agency fails to
prepare a TIA when one is required, an owner can sue to
invalidate the governmental action on that basis.
Unlike other takings laws, the Texas measure does not authorize
an owner to sue for monetary relief, although state agencies
have the option of paying monetary damages. Other notable
features include the exemption of municipalities from the
act, and the exemption of actions taken to “fulfill an obligation
mandated” by federal or state law. To date, no court has
found a regulatory action to effect a taking under the act.
Additional State Law
Colorado
In 1999, the Colorado legislature enacted SB
218, a bill that prohibits local governments from conditioning
land use approval on exactions of either land or money unless
there is an essential nexus between the exaction and a legitimate
government purpose.
Oregon
In 1999, SB
461 was enacted and requires strict rules governing
when the Land Use Board of Appeals reverses and remands
local land use decisions.
Virginia
On April 22, 1998, the Virginia legislature enacted amended
Virginia Code Section 15.2 -2307, which expands the vesting
of property rights under state law to include a property
owner who: (1) obtains or is the beneficiary of “a
significant affirmative governmental act” allowing
development of a specific project; (2) relies in good faith
on that act; and, (3) “incurs extensive obligations
or substantial expenses” in carrying out the project.
Introduced Legislation
2003-2004 Legislative Session
Kentucky
H
581 relates to regulatory takings and would create a
new section to require the Attorney General to develop guidelines
to enable state and local governments to evaluate whether
proposed regulatory or administrative actions would result
in a loss of private property value.
S
89 relates to property affected by actions of state
agencies and would create new sections to establish guidelines
for governmental taking of property or regulation of use
of property that is privately owned.
Maine
H 663 would require state reimbursement when laws or rules
devalue private property.
New York
S 1431 would require a private property rights protection
analysis be completed when rules or regulations involve
taking property or license/permit conditions use of property;
the bill also directs the attorney general to adopt guidelines
to assist agencies in determining whether a rule has constitutional
taxing implications.
Ballot Initiatives
Oregon
Measure
37 adds a new statute to ORS chapter 197. As specified
in the measure, the owner of private real property is entitled
to receive just compensation when a land use regulation
is enacted after the owner or a family member became the
owner of the property if the regulation restricts the use
of the property and reduces its fair market value.
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 information. |
