First Substitute H.B. 64

1

PRIVATE PROPERTY PROTECTION ACT AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Evan L. Olsen
5 AN ACT RELATING TO PRIVATE PROPERTY PROTECTION; MODIFYING THE
6 PRIVATE PROPERTY PROTECTION ACT; CREATING A PRIVATE PROPERTY
7 OMBUDSMAN IN THE DEPARTMENT OF NATURAL RESOURCES; APPROPRIATING
8 $90,000 TO THE DEPARTMENT OF NATURAL RESOURCES TO FUND THAT
9 POSITION; MAKING TECHNICAL CORRECTIONS; AND PROVIDING AND
10 EFFECTIVE DATE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 63-90-2, as last amended by Chapter 299, Laws of Utah 1995
14 63-90-3, as renumbered and amended by Chapter 91, Laws of Utah 1994
15 ENACTS:
16 63-34-13, Utah Code Annotated 1953
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 63-34-13 is enacted to read:
19 63-34-13. Private property ombudsman.
20 (1) As used in this section:
21 (a) "Constitutional taking" or "taking" means a governmental action that results in a taking
22 of private property so that compensation to the owner of the property is required by:
23 (i) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
24 (ii) Utah Constitution Article I, Section 22.
25 (b) "Takings law" means the provisions of the federal and state constitutions, the case law
26 interpreting those provisions, and any relevant statutory provisions that require a governmental
27 unit to compensate a private property owner for a constitutional taking.

1 (2) (a) There is created a private property ombudsman in the Department of Natural
2 Resources.
3 (b) The executive director of the Department of Natural Resources shall hire a person with
4 background or expertise in takings law to fill the position.
5 (c) The person hired to fill the position is an exempt employee.
6 (3) The private property ombudsman shall:
7 (a) develop and maintain expertise in and understanding of takings law;
8 (b) assist state agencies and local governments in developing the guidelines required by
9 this chapter and Title 63, Chapter 90a, Constitutional Takings Issues.
10 (c) at the request of a state agency or local government, assist the state agency or local
11 government in analyzing actions with potential takings implications;
12 (d) advise h [ and, if appropriate, advocate on behalf of ] h private property owners who have a
13 legitimate potential or actual takings claim against a state or local government entity;
14 (e) identify state or local government actions that have potential takings implications and,
15 if appropriate, advise those state or local government entities about those implications;
16 (f) provide information to private citizens, civic groups, government entities, and other
17 interested parties about takings law and their rights and responsibilities under it; and
18 (g) if appropriate and requested to do so by one of the parties, mediate disputes between
19 private property owners and government entities that involve takings issues.
19a h (4) THE PRIVATE PROPERTY OMBUDSMAN MAY NOT REPRESENT PRIVATE PROPERTY
19b OWNERS, STATE AGENCIES, OR LOCAL GOVERNMENTS IN COURT OR IN ADJUDICATIVE
19c PROCEEDINGS UNDER TITLE 63, CHAPTER 46b, UTAH ADMINISTRATIVE PROCEDURES ACT. h
20 Section 2. Section 63-90-2 is amended to read:
21 63-90-2. Definitions.
22 As used in this chapter:
23 (1) "Constitutional taking" or "taking" means [due to] a governmental action that results
24 in a taking of private property [is taken such] so that compensation to the owner of the property
25 is required by [either]:
26 (a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
27 (b) Utah Constitution Article I, Section 22[ of the Utah Constitution].
28 (2) (a) "Governmental action" or "action" means:
29 (i) proposed rules and emergency rules by a state agency that if adopted and enforced may
30 limit the use of private property unless:
31 (A) its provisions are in accordance with applicable state or federal statutes; and
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1 (B) the agency has adopted and implemented the guidelines required by Section 63-90-3;
2 (ii) proposed or implemented licensing or permitting conditions, requirements, or
3 limitations to the use of private property unless:
4 (A) its provisions are in accordance with applicable state or federal statutes, rules, or
5 regulations; and
6 (B) the agency has adopted and implemented the guidelines required by Section 63-90-3;
7 (iii) required dedications or exactions from owners of private property; or
8 (iv) statutes and rules.
9 (b) "Governmental action" or "action" does not mean:
10 (i) activity in which the power of eminent domain is exercised formally;
11 (ii) repealing rules discontinuing governmental programs or amending rules in a manner
12 that lessens interference with the use of private property;
13 (iii) law enforcement activity involving seizure or forfeiture of private property for
14 violations of law or as evidence in criminal proceedings;
15 (iv) school and institutional trust land management activities and disposal of land and
16 interests in land conducted pursuant to Title 53C, Schools and Institutional Trust Lands
17 Management Act;
18 (v) orders and enforcement actions that are issued by a state agency [or a court of law] in
19 accordance with Title 63, Chapter 46b, Utah Administrative Procedures Act, and applicable federal
20 or state statutes[.]; or
21 (vi) orders and enforcement actions that are issued by a court of law in accordance with
22 applicable federal or state statutes.
23 (3) "Private property" means any school or institutional trust lands and any real or personal
24 property in this state that is protected by [either]:
25 (a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
26 (b) Utah Constitution Article I, Section 22 [of the Utah Constitution].
27 (4) "State agency" means an officer or administrative unit of the executive branch of state
28 government that is authorized by law to adopt rules.
29 (b) "State agency" does not include the legislative or judicial branches of state
30 government.
31 (6) "Takings law" means the provisions of the federal and state constitutions, the case law

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1 interpreting those provisions, and any relevant statutory provisions that require a governmental
2 unit to compensate a private property owner for a constitutional taking.
3 Section 3. Section 63-90-3 is amended to read:
4 63-90-3. State agencies h [ and local governments ] h to adopt guidelines.
5 (1) Each state agency shall adopt guidelines to assist them in the identification of actions
6 that have constitutional taking implications.
7 (2) In creating the guidelines, the state agency shall take into consideration recent court
8 rulings on the taking of private property.
9 (3) [The] Each state agency shall complete the guidelines on or before January 1, [1994]
10 1999, and review and update the guidelines annually to maintain consistency with court rulings.
11 Section 4. Appropriation.
12 There is appropriated from the General Fund for fiscal year 1996-97 $90,000 to the
13 Department of Natural Resources to fund the ombudsman position created by this bill.
14 Section 5. Effective date.
15 If approved by two-thirds of all the members elected to each house, this act takes effect
16 upon approval by the governor, or the day following the constitutional time limit of Utah
17 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
18 date of veto override.






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