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H.B. 64





Sponsor: Evan L. Olsen

12    This act affects sections of Utah Code Annotated 1953 as follows:
13    AMENDS:
14         63-90-2, as last amended by Chapter 299, Laws of Utah 1995
15         63-90-3, as renumbered and amended by Chapter 91, Laws of Utah 1994
16         63-90-4, as renumbered and amended by Chapter 91, Laws of Utah 1994
17    ENACTS:
18         63-90-2.5, Utah Code Annotated 1953
19    REPEALS:
20         63-90a-1, as enacted by Chapter 91, Laws of Utah 1994
21         63-90a-2, as enacted by Chapter 91, Laws of Utah 1994
22         63-90a-3, as enacted by Chapter 91, Laws of Utah 1994
23         63-90a-4, as enacted by Chapter 91, Laws of Utah 1994
24    Be it enacted by the Legislature of the state of Utah:
25        Section 1. Section 63-90-2 is amended to read:
26         63-90-2. Definitions.
27        As used in this chapter:

1        (1) "Constitutional taking" or "taking" means [due to] a governmental action that results
2    in a taking of private property [is taken such] so that compensation to the owner of the property
3    is required by [either]:
4        (a) the Fifth or Fourteenth Amendment of the Constitution of the United States; or
5        (b) Utah Constitution Article I, Section 22[ of the Utah Constitution].
6        (2) (a) "Governmental action" or "action" means:
7        (i) proposed rules and emergency rules by a state agency or proposed regulations and
8    emergency regulations by a local government that if adopted and enforced may limit the use of
9    private property [unless its provisions are in accordance with applicable state or federal statutes];
10        (ii) proposed or implemented licensing or permitting conditions, requirements, or
11    limitations to the use of private property [unless its provisions are in accordance with applicable
12    state or federal statutes, rules, or regulations];
13        (iii) required dedications or exactions from owners of private property; or
14        (iv) statutes [and], ordinances, rules, and regulations.
15        (b) "Governmental action" or "action" does not mean:
16        (i) activity in which the power of eminent domain is exercised formally;
17        (ii) repealing rules discontinuing governmental programs or amending rules in a manner
18    that lessens interference with the use of private property;
19        (iii) law enforcement activity involving seizure or forfeiture of private property for
20    violations of law or as evidence in criminal proceedings;
21        (iv) school and institutional trust land management activities and disposal of land and
22    interests in land conducted pursuant to Title 53C, Schools and Institutional Trust Lands
23    Management Act;
24        (v) orders and enforcement actions that are issued by a state agency [or a court of law] in
25    a formal or informal adjudicative proceeding in accordance with applicable federal or state
26    statutes[.]; or
27        (vi) orders and enforcement actions that are issued by a court of law in accordance with
28    applicable federal or state statutes.
29        (3) "Local government" means a county, municipality, or township.
30        [(3)] (4) "Private property" means any school or institutional trust lands and any real or
31    personal property in this state that is protected by [either] the Fifth or Fourteenth Amendment of

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1    the Constitution of the United States or Utah Constitution Article I, Section 22 [of the Utah
2    Constitution].
3        [(4)] (5) (a) "State agency" means an officer or administrative unit of the executive branch
4    of state government that is authorized by law to adopt rules.
5        (b) "State agency" does not include the legislative or judicial branches of state
6    government.
7        (6) "Takings law" means the provisions of the federal and state constitutions, the case law
8    interpreting those provisions, and any relevant statutory provisions that require a governmental
9    unit to compensate a private property owner for a constitutional taking.
10        Section 2. Section 63-90-2.5 is enacted to read:
11         63-90-2.5. Takings expert in attorney general's office.
12        (1) (a) There is created an attorney position in the Attorney General's Office.
13        (b) The attorney general shall hire a person with background or expertise in takings law
14    to fill the position.
15        (c) The person hired to fill the position is an exempt employee and is not part of the
16    Attorney General Career service system established by Sections 67-5-6 through 67-5-13
17        (2) The takings attorney hired under authority of this section shall:
18        (a) develop and maintain expertise in and understanding of takings law;
19        (b) assist state agencies and local governments in developing the guidelines required by
20    this chapter; and
21        (c) at the request of a state agency or local government, assist the state agency or local
22    government in the preparation of the analysis required by Section 63-90-4.
23        Section 3. Section 63-90-3 is amended to read:
24         63-90-3. State agencies and local governments to adopt guidelines.
25        (1) Each state agency and local government shall adopt guidelines to assist them in the
26    identification of actions that have constitutional taking implications.
27        (2) In creating the guidelines, the state agency and local government shall take into
28    consideration recent court rulings on the taking of private property and apply the following
29    principles:
30        (a) state agencies and local governments shall be sensitive to, anticipate, and account for
31    the obligations imposed by takings law in planning and carrying out governmental actions;

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1        (b) governmental actions that are taken by state agencies and local governments and that
2    result in a physical invasion or occupancy of private property and actions that affect the value or
3    use of private property may constitute a taking of private property;
4        (c) governmental actions may amount to a taking even though:
5        (i) the action constitutes less than a complete deprivation of all use or value of the private
6    property;
7        (ii) the action constitutes less than a complete deprivation of all separate and distinct
8    interests in the same private property; or
9        (iii) the action is only temporary in nature;
10        (d) although governmental actions taken specifically to protect the public health and safety
11    are given broader latitude by the courts before the actions are considered to be takings, and because
12    the mere assertion of a public health and safety purpose is insufficient to avoid a taking, state
13    agencies and local governments should ensure that governmental actions taken to protect the
14    public health and safety are:
15        (i) taken only in response to real and substantial threats to public health and safety;
16        (ii) designed to advance significantly the health and safety purpose; and
17        (iii) no greater than necessary to achieve the health and safety purpose;
18        (e) although normal governmental processes do not ordinarily constitute takings, undue
19    delays in decision-making that interfere with private property use may be held to be a taking and
20    may increase significantly the size of compensation due to a private property owner if a taking is
21    found to have occurred; and
22        (f) the constitutional protections against taking private property are self-executing and
23    require compensation regardless of whether underlying authority for the action intended a taking
24    or authorized the payment of compensation.
25        (3) [The] (a) Each state agency shall complete the guidelines on or before January 1,
26    [1994] 1999, and review and update the guidelines annually to maintain consistency with court
27    rulings.
28        (b) Each local government shall complete the guidelines on or before January 1, 2000, and
29    review and update the guidelines annually to maintain consistency with court rulings.
30        Section 4. Section 63-90-4 is amended to read:
31         63-90-4. Agency actions.

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1        (1) Using the guidelines prepared under Section 63-90-3, and in consultation with the
2    takings attorney hired under authority of Section 63-90-2.5, each state agency and local
3    government shall:
4        (a) determine whether an action has constitutional taking implications; and
5        (b) if so, prepare an assessment of constitutional taking implications that includes an
6    analysis of the following:
7        (i) the likelihood that the action may result in a constitutional taking, including a
8    description of how the taking affects the use or value of private property;
9        (ii) alternatives to the proposed action that may:
10        (A) fulfill the government's legal obligations [of the state agency];
11        (B) reduce the impact on the private property owner; and
12        (C) reduce the risk of a constitutional taking; and
13        (iii) an estimate of financial cost to the state or local government for compensation and the
14    source of payment within the [agency's] entity's budget if a constitutional taking is determined.
15        (2) In addition to the guidelines prepared under Section 63-90-3, each state agency and
16    local government shall [adhere, to the extent permitted by law, to] comply with the following
17    criteria if implementing or enforcing actions that have constitutional taking implications:
18        (a) If [an] a state agency or local government requires a person to obtain a permit for a
19    specific use of private property, any conditions imposed on issuing the permit shall directly relate
20    to the purpose for which the permit is issued and shall substantially advance that purpose.
21        (b) Any restriction imposed on the use of private property shall be proportionate to the
22    extent the use contributes to the overall problem that the restriction is to redress.
23        (c) If an action involves a permitting process or any other decision-making process that
24    will interfere with, or otherwise prohibit, the use of private property pending the completion of the
25    process, the duration of the process shall be kept to the minimum necessary.
26        (d) Before taking an action restricting private property use for the protection of public
27    health or safety, the state agency or local government, in internal deliberative documents, shall:
28        (i) clearly identify, with as much specificity as possible, the public health or safety risk
29    created by the private property use;
30        (ii) establish that the action substantially advances the purpose of protecting public health
31    and safety against the specifically identified risk;

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1        (iii) establish, to the extent possible, that the restrictions imposed on the private property
2    are proportionate to the extent the use contributes to the overall risk; and
3        (iv) estimate, to the extent possible, the potential cost to the government if a court
4    determines that the action constitutes a constitutional taking.
5        (3) If there is an immediate threat to health and safety that constitutes an emergency and
6    requires an immediate response, the analysis required by Paragraph (2)(b) of this section may be
7    made when the response is completed.
8        (4) (a) Before the state agency implements an action that has constitutional taking
9    implications, the state agency shall submit a copy of the assessment of constitutional taking
10    implications to the governor and the Legislative Management Committee.
11        (b) Before a local government implements an action that has constitutional taking
12    implications, the local government shall submit a copy of the assessment of constitutional taking
13    implications to:
14        (i) the county executive and the county legislative body, if the local government is a
15    county or township; and
16        (ii) the municipal executive and the municipal legislative body, as defined in 20A-1-102,
17    if the local government is a municipality.
18        Section 5. Repealer.
19        This act repeals:
20        Section 63-90a-1, Definitions.
21        Section 63-90a-2, Applicability of chapter.
22        Section 63-90a-3, Political subdivisions to adopt guidelines.
23        Section 63-90a-4, Appeals of decisions.
24        Section 6. Appropriation.
25        There is appropriated from the General Fund for fiscal year 1996-97 $95,000 to the
26    Attorney General's Office to fund the position created by this bill.
27        Section 7. Effective date.
28        If approved by two-thirds of all the members elected to each house, this act takes effect
29    upon approval by the governor, or the day following the constitutional time limit of Utah
30    Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
31    date of veto override.

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Legislative Review Note
    as of 1-8-97 10:17 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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