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H.B. 64 Enrolled
AN ACT RELATING TO PRIVATE PROPERTY PROTECTION; MODIFYING THE
PRIVATE PROPERTY PROTECTION ACT; CREATING A PRIVATE PROPERTY
OMBUDSMAN IN THE DEPARTMENT OF NATURAL RESOURCES;
APPROPRIATING $90,000 TO THE DEPARTMENT OF NATURAL RESOURCES TO
FUND THAT POSITION; AND MAKING TECHNICAL CORRECTIONS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
63-90-2, as last amended by Chapter 299, Laws of Utah 1995
63-90-3, as renumbered and amended by Chapter 91, Laws of Utah 1994
ENACTS:
63-34-13, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 63-34-13 is enacted to read:
63-34-13. Private property ombudsman.
(1) As used in this section:
(a) "Constitutional taking" or "taking" means a governmental action that results in a taking
of private property so that compensation to the owner of the property is required by:
(i) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(ii) Utah Constitution Article I, Section 22.
(b) "Takings law" means the provisions of the federal and state constitutions, the case law
interpreting those provisions, and any relevant statutory provisions that require a governmental
unit to compensate a private property owner for a constitutional taking.
(2) (a) There is created a private property ombudsman in the Department of Natural
Resources.
(b) The executive director of the Department of Natural Resources shall hire a person with
background or expertise in takings law to fill the position.
(c) The person hired to fill the position is an exempt employee.
(3) The private property ombudsman shall:
(a) develop and maintain expertise in and understanding of takings law;
(b) assist state agencies and local governments in developing the guidelines required by this
chapter and Title 63, Chapter 90a, Constitutional Takings Issues.
(c) at the request of a state agency or local government, assist the state agency or local
government in analyzing actions with potential takings implications;
(d) advise private property owners who have a legitimate potential or actual takings claim
against a state or local government entity;
(e) identify state or local government actions that have potential takings implications and,
if appropriate, advise those state or local government entities about those implications;
(f) provide information to private citizens, civic groups, government entities, and other
interested parties about takings law and their rights and responsibilities under it; and
(g) if appropriate and requested to do so by one of the parties, mediate disputes between
private property owners and government entities that involve takings issues.
(4) The private property ombudsman may not represent private property owners, state
agencies, or local governments in court or in adjudicative proceedings under Title 63, Chapter 46b,
Administrative Procedures Act.
Section 2. Section 63-90-2 is amended to read:
63-90-2. Definitions.
As used in this chapter:
(1) "Constitutional taking" or "taking" means [
a taking of private property [
required by [
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(b) Utah Constitution Article I, Section 22[
(2) (a) "Governmental action" or "action" means:
(i) proposed rules and emergency rules by a state agency that if adopted and enforced may
limit the use of private property unless:
(A) its provisions are in accordance with applicable state or federal statutes; and
(B) the agency has adopted and implemented the guidelines required by Section 63-90-3;
(ii) proposed or implemented licensing or permitting conditions, requirements, or limitations
to the use of private property unless:
(A) its provisions are in accordance with applicable state or federal statutes, rules, or
regulations; and
(B) the agency has adopted and implemented the guidelines required by Section 63-90-3;
(iii) required dedications or exactions from owners of private property; or
(iv) statutes and rules.
(b) "Governmental action" or "action" does not mean:
(i) activity in which the power of eminent domain is exercised formally;
(ii) repealing rules discontinuing governmental programs or amending rules in a manner that
lessens interference with the use of private property;
(iii) law enforcement activity involving seizure or forfeiture of private property for violations
of law or as evidence in criminal proceedings;
(iv) school and institutional trust land management activities and disposal of land and
interests in land conducted pursuant to Title 53C, Schools and Institutional Trust Lands Management
Act;
(v) orders and enforcement actions that are issued by a state agency [
accordance with Title 63, Chapter 46b, Utah Administrative Procedures Act, and applicable federal
or state statutes[
(vi) orders and enforcement actions that are issued by a court of law in accordance with
applicable federal or state statutes.
(3) "Private property" means any school or institutional trust lands and any real or personal
property in this state that is protected by [
(a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
(b) Utah Constitution Article I, Section 22 [
(4) "State agency" means an officer or administrative unit of the executive branch of state
government that is authorized by law to adopt rules.
(b) "State agency" does not include the legislative or judicial branches of state government.
(6) "Takings law" means the provisions of the federal and state constitutions, the case law
interpreting those provisions, and any relevant statutory provisions that require a governmental unit
to compensate a private property owner for a constitutional taking.
Section 3. Section 63-90-3 is amended to read:
63-90-3. State agencies to adopt guidelines.
(1) Each state agency shall adopt guidelines to assist them in the identification of actions that
have constitutional taking implications.
(2) In creating the guidelines, the state agency shall take into consideration recent court
rulings on the taking of private property.
(3) [
1999, and review and update the guidelines annually to maintain consistency with court rulings.
Section 4. Appropriation.
There is appropriated from the General Fund for fiscal year 1996-97 $90,000 to the
Department of Natural Resources to fund the ombudsman position created by this bill.
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