H. B. 4165


(By Delegates Martin, Michael, Rowe, Mezzatesta,
Beach, L. Williams and Willison)
[Introduced January 26, 1994; referred to the
Committee on Government Organization then the
Judiciary.]




A BILL to amend chapter one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six, relating to state actions that affect private property; enacting a private property protection act; legislative findings and purpose; definitions; requiring that state agencies adopt guidelines; requiring assessment of constitutional taking implications of agency actions; specifying remedies including action for declaratory judgment; and providing for award to property owner for attorney's fees, costs and additional compensation in certain circumstances.
Be it enacted by the Legislature of West Virginia:

That chapter one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six, to read as follows:
 ARTICLE 6. PRIVATE PROPERTY PROTECTION ACT.
 § 1-6-1. Short title.
This article shall be known and may be cited as the "West Virginia Private Property Protection Act."
 § 1-6-2. Legislative findings and purpose.
It is the policy of this state that no person may be deprived of the use of private property without due process of law and no private property may be taken or damaged by governmental action without just compensation having first been made. A presidential executive order and recent decisions by the United States Supreme Court have established the guidelines and tests to be used in the determining when the taking of private property has occurred. The Legislature intends that each agency whose actions affect private property follow similar guidelines to ensure constitutional protection of property rights and reduce the burden on and uncertainty of citizens, local governments and this state caused by lengthy and costly litigation. The purpose of this article is to establish an orderly, consistent process that better enables governmental bodies to evaluate proposed regulatory or administrative actions that may result in a constitutional taking of private property. It is not the purpose of this article to reduce the scope of private property protections provided in section nine, article three of the constitution of West Virginia and the fifth and fourteenth amendments of the constitution of the United States.
§ 1-6-3. Definitions.

As used in this article:

(a) "Constitutional taking" or "taking" means that due to a governmental action private property is taken so that compensation to the owner of the property is required by either (1) the fifth or fourteenth amendment of the constitution of the United States, or (2) section nine, article three of the West Virginia constitution.
(b) "Governmental action" or "action" means (1) rules and emergency rules of a state agency, whether proposed or implemented, that may limit the use of private property, unless the limitation is specifically required by applicable state or federal statutes; (2) proposed or implemented licensing or permitting conditions, requirements, or limitations to the use of private property, unless the conditions are specifically required by applicable state or federal statutes, rules or regulations; or (3) required dedications or exactions from owners of private property. "Governmental action" or "action" does not mean (1) activity in which the power of eminent domain is exercised formally; (2) repealing rules discontinuing governmental programs or amending rules in a manner that lessens interference with the use of private property; (3) law-enforcement activity involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings; or (4) orders and enforcement actions that are issued by a state agency or a court of law in accordance with requirements of applicable federal or state statutes.
(c) "Private property" means any real or personal property that is protected by either the fifth or fourteenth amendment of the constitution of the United States or section nine, article three of the West Virginia constitution.
(d) "State agency" means an officer or unit of the executive branch of state government that is authorized by law to adopt rules. "State agency" does not include the legislative or judicial branches of state government.
 § 1-6-4. State agencies to adopt guidelines.
Each state agency shall adopt guidelines to assist in the identification of actions that have constitutional taking implications. In creating the guidelines, the state agency shall take into consideration recent court rulings on the taking of private property. The state agency shall complete the guidelines on or before the first day of January, one thousand nine hundred ninety-five and review and update the guidelines annually as may be necessary to maintain consistency with court rulings.
§ 1-6-5. Agency actions; requiring assessment of constitutional taking implications.

(a) Using the guidelines prepared under section four of this article, each state agency shall determine whether an action has constitutional taking implications and prepare an assessment of constitutional taking implications that includes an analysis of the following: (1) The likelihood that the action may result in a constitutional taking, including a description of how the taking affects the use or value of private property; (2) alternatives to the proposed action that may fulfill the government's legal obligations of the state agency, reduce the impact on the private property owner and reduce the risk of a constitutional taking; and (3) an estimate of financial cost to the state for compensation and the source of payment within the agency's budget if a constitutional taking is determined.

(b) In addition to the guidelines prepared under section four of this article, each state agency shall adhere, to the extent permitted by law, to the following criteria if implementing or enforcing actions that have constitutional taking implications:
(1) If an agency requires a person or governmental entity to obtain a permit for a specific use of private property, any conditions imposed on issuing the permit shall directly relate to the purpose for which the permit is issued and shall substantially advance that purpose.
(2) Any restriction imposed on the use of private property shall be proportionate to the extent the use contributes to the overall problem that the restriction is to redress.
(3) If an action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.
(c) Before taking an action restricting private property use for the protection of public health or safety, the state agency, in internal deliberative documents, shall:
(1) Clearly identify, with specificity, the public health or safety risk created by the private property use;
(2) Establish that the action substantially advances the purpose of protecting public health and safety against the specifically identified risk;
(3) Establish that the restrictions imposed on the private property are proportionate to the extent the use contributes to the overall risk; and
(4) Estimate the potential cost to the agency if a court determines that the action constitutes a constitutional taking: Provided, That in the case of an immediate threat to human health and safety that constitutes an emergency and requires an immediate response, the analysis required by this subsection may be made after the response is completed.
(d) Governmental action may amount to a taking even though the action constitutes less than a complete deprivation of all use or value or of all separate and distinct interests in the same private property or the action is only temporary in nature.
(e) Governmental action by any state agency demanding that a buffer zone be created as a requirement for the issuance of any permit, which buffer zone lies on or is to be created on private property, is a taking which will require just compensation to be paid to the affected property owner or owners by the agency requiring a buffer zone as a condition for the issuance of the permit requested.
(f) Before the state agency implements an action that has constitutional taking implications, the state agency shall submit a copy of the assessment of constitutional taking implications to the secretary of the department of which the agency is a part, or, in the case of an agency whose chief administrator reports directly to the governor, to the governor; except that in the case of an emergency pursuant to subsection (c) of this section, the assessment may be submitted after the implementation of the action. Assessments made pursuant to this article are public information and shall be made available to any member of the public upon request. Not later than the fifteenth day of January, one thousand nine hundred ninety-five, and each year thereafter, a summary of assessments made pursuant to this section during the preceding calendar year shall be submitted to the governor, the speaker of the House and the president of the Senate and the chairs of the joint committee on government operations; except that, in the case of an agency required by other provision of this code to file an annual report, the summary of assessments made pursuant to this article may be included in the annual report of the agency.
 § 1-6-6. Remedies; additional compensation.
Any property owner affected by, or who may potentially be affected by a governmental action, who believes that the governmental action is a taking, may, upon the state agency's denial that the governmental action has constitutional taking implications or the agency's failure to report pursuant to subsection (f), section five of this article, file a declaratory judgment action pursuant to article thirteen, chapter fifty-five of this code in the circuit court of the county in which the property is situated, seeking a judicial determination that the proposed governmental action is a taking which would require just compensation pursuant to the fifth or fourteenth amendment of the constitution of the United States, or section nine, article three of the West Virginia constitution. Any property owner affected by governmental action which is ultimately determined by a court of competent jurisdiction to be a taking, shall, when the governmental action is not reported pursuant to subsection (f), section five of this article, or when the state agency denies that there are constitutional taking implications, be entitled to his or her reasonable attorney's fees and costs in the action for declaratory judgment and an additional award, as compensation for inconvenience, in an amount which is an additional one-third the sum of money which is awarded the landowner as just compensation for the taking.



NOTE: The purpose of this bill is to require state agencies which interfere with or take private property to compensate the owner or owners for the property, to require state agencies to create guidelines to determine whether there is a taking and to provide for an assessment of the constitutional taking implications of agency actions to be made.

This article is new; therefore, strike-throughs and underscoring have been omitted.