H.B. 391

1

REVISIONS TO PRIVATE PROPERTY
2 PROTECTION ACT
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Evan L. Olsen
6 AN ACT RELATING TO STATE AFFAIRS IN GENERAL; ESTABLISHING ADDITIONAL
7 PRIVATE PROPERTY PROTECTIONS; REQUIRING GOVERNMENT ENTITIES TO
8 ANALYZE TAKINGS AND COMPENSATE PROPERTY OWNERS FOR THEM; AND
9 MAKING TECHNICAL CORRECTIONS.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 ENACTS:
12 63-90b-101, Utah Code Annotated 1953
13 63-90b-102, Utah Code Annotated 1953
14 63-90b-201, Utah Code Annotated 1953
15 63-90b-202, Utah Code Annotated 1953
16 63-90b-203, Utah Code Annotated 1953
17 63-90b-301, Utah Code Annotated 1953
18 63-90b-302, Utah Code Annotated 1953
19 Be it enacted by the Legislature of the state of Utah:
20 Section 1. Section 63-90b-101 is enacted to read:
21 CHAPTER 90b. PRIVATE PROPERTY REGULATORY FAIRNESS ACT
22 Part 1. General Provisions
23 63-90b-101. Title.
24 This chapter is known as the "Private Property Regulatory Fairness Act."
25 Section 2. Section 63-90b-102 is enacted to read:
26 63-90b-102. Definitions.
27 As used in this chapter:

1 (1) "Full compensation" means the reduction in the fair market value of the portion or
2 parcel of property taken for general public use that is attributable to the regulation or restraint
3 measured as of the date of adoption of the regulation or imposition of restraint on the use of private
4 property.
5 (2) "Governmental entity" means Utah, state agencies, agencies and commissions funded
6 fully or partially by the state, counties, municipalities, school districts, special districts, and other
7 political subdivisions.
8 (3) "Nongovernmental entity" means an entity that is not a governmental entity.
9 (4) "Private property" includes:
10 (a) land;
11 (b) any interest in land or improvements on land;
12 (c) any proprietary water right; and
13 (d) any crops, forest products, or resources capable of being harvested or extracted that are
14 owned by a person or a nongovernmental entity and are protected by either the Utah Constitution
15 or the Fifth or Fourteenth Amendments to the U.S. Constitution.
16 (5) "Restraint of land use" means any action, requirement, or restriction by a governmental
17 entity, other than actions to prevent or abate public nuisances, that limits the use or development
18 of private property.
19 Section 3. Section 63-90b-201 is enacted to read:
20 Part 2. Analysis and Compensation for Takings
21 63-90b-201. Written analysis required.
22 (1) A regulation of private property or restraint of land use by a governmental entity is
23 prohibited unless a statement containing a full analysis of the total economic impact on private
24 property of the regulation or restraint is prepared by the entity and made available to the public at
25 least 30 days before adoption of the regulation or imposition of the restraint.
26 (2) The statement shall identify the manner in which the proposed action will substantially
27 advance the purpose of protecting public health and safety against identified public health or safety
28 risks created by the use of private property, and analyze the economic impact of all reasonable
29 alternatives to the regulation or restraint.
30 (3) If the governmental entity chooses to adopt a proposed regulation or restraint on the
31 use of private property, the governmental entity shall adopt the regulation or restraint that has the

- 2 -

1 least possible impact on private property and still accomplishes the necessary public purpose.
2 Section 4. Section 63-90b-202 is enacted to read:
3 63-90b-202. Takings -- Defined -- Compensation required.
4 (1) A portion or parcel of private property shall be considered to have been taken for
5 general public use when:
6 (a) a governmental entity regulates or imposes a restraint of land use on such portion or
7 parcel of property for public benefit including wetlands, fish or wildlife habitat, buffer zone, or
8 other public benefit designations; and
9 (b) no public nuisance will be created absent the regulation.
10 (2) (a) When private property is taken for general public use, the governmental entity shall
11 pay full compensation of reduction in value to the owner.
12 (b) If the governmental entity fails to pay full compensation of reduction in value to the
13 owner within the time required by this section, the use of the land by the owner may not be
14 restricted because of the regulation or restraint.
15 (c) The jurisdiction may not require waiving this compensation as a condition of approval
16 of use or another permit, nor as a condition of subdivision of land.
17 (3) The governmental entity shall pay the compensation required by this section to the
18 owner of the private property within three months of the adoption of a regulation of restraint that
19 results in a taking for general public use.
20 (4) A governmental entity may not deflate the value of property by suggesting or
21 threatening a designation to avoid full compensation to the owner.
22 (5) A governmental entity that places restrictions on the use of public or private property
23 that deprive a landowner of access to his property shall either:
24 (a) provide alternative access to the property at the governmental entity's expense; or
25 (b) purchase the inaccessible property.
26 (6) The county assessor shall:
27 (a) adjust property valuation for tax purposes;
28 (b) notify the owner of the new tax valuation; and
29 (c) ensure that the new property valuation is reflected and identified in the next tax
30 assessment notice.
31 (7) The state shall provide other governmental entities with the total compensation owed

- 3 -

1 to a property owner for any action that restricts the use of property when the action is mandated
2 by state law or by a state agency.
3 (8) Claims for compensation as a result of a taking of private property under this chapter
4 must be brought within ten years.
5 Section 5. Section 63-90b-203 is enacted to read:
6 63-90b-203. Prohibited charges.
7 A governmental entity may not require any private property owner to provide or pay for
8 any studies, maps, plans, or reports used in decisions to consider restricting the use of private
9 property for public use.
10 Section 6. Section 63-90b-301 is enacted to read:
11 Part 3. Enforcement
12 63-90b-301. Interpretation and application.
13 This chapter is intended to provide remedies to property owners in addition to any
14 constitutional rights under the state and federal constitutions and is not intended to restrict or
15 replace any constitutional rights.
16 Section 7. Section 63-90b-302 is enacted to read:
17 63-90b-302. Enforcement -- Attorney fees.
18 (1) This chapter may be enforced in Superior Court against any governmental entity that
19 fails to comply with the provisions of this chapter by any owner of property subject to the
20 jurisdiction of that governmental entity.
21 (2) Each prevailing plaintiff may recover the costs of litigation, including reasonable
22 attorney's fees.




Legislative Review Note
as of 2-11-97 1:14 PM

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

Office of Legislative Research and General Counsel

- 4 -