COMMITTEE SUBSTITUTE

FOR

H. B. 4165

(By Delegates Martin, Michael, Rowe, Mezzatesta,
Beach, L. Williams and Willison)
(Originating in the Committee on Government
Organization)
[February 28, 1994]


A BILL to amend chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a, relating to state actions that affect private property; enacting a private property protection act; legislative findings and purpose; definitions; requiring the division of environmental protection to adopt guidelines; requiring assessment of constitutional taking implications of agency actions; requiring agency report on creation of buffer zones; specifying remedies and providing for award to property owner for attorney's fees and costs in certain circumstances; limiting provisions of article to division of environmental protection.
Be it enacted by the Legislature of West Virginia:

That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-a, to read as follows:
 ARTICLE 1A. PRIVATE REAL PROPERTY PROTECTION.
 § 22-1A-1. Short title.
This article shall be known and may be cited as the "Private Real Property Protection Act."
 § 22-1A-2. Legislative findings and purpose.
It is the policy of this state that action affecting private real property is subject to such protection as is afforded by the constitutions of the United States and of West Virginia. The Legislature intends that the division of environmental protection follow guidelines to ensure constitutional protection of private real 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 the division to evaluate proposed regulatory or administrative actions that affect privately owned real property. It is not the purpose of this article to reduce or expand the scope of private real 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, as those provisions have been and may in the future be interpreted by the courts of this state and of the United States.
§ 22-1A-3. Division of environmental protection to adopt guidelines.

The division of environmental protection shall adopt guidelines to identify actions which are reasonably likely to require compensation to be paid to private real property owners under applicable constitutional principles and case law. In creating the guidelines, the division shall take into consideration court rulings on compensation under section nine, article three of the constitution of West Virginia and the fifth and fourteenth amendments of the constitution of the United States. The guidelines as finally adopted shall conform to the general law as set forth in case law. No assessment shall be required under subsection (a), section four of this article, unless a court has, under similar factual circumstances required compensation to be paid. The division shall complete the guidelines on or before the first day of January, one thousand nine hundred ninety-five and shall review and update the guidelines annually as may be necessary to maintain consistency with court rulings.

§ 22-1A-4. Actions by division; requirement for assessment.

(a) Using the guidelines prepared under section three of this article, whenever the division of environmental protection considers any action that is reasonably likely to deprive a private real property owner of his or her property in fee simple or to deprive an owner of all productive use of his or her private real property, it shall prepare an assessment that includes but need not be limited to the following:

(1) A clear and specific identification of the risk created by the private real property use;
(2) An explanation of how the action substantially advances the purpose of protecting against the specifically identified risk;
(3) The reasons that the division believes that its action will result in requiring the state, under applicable provisions of constitutional principles and case law, to compensate the owner of private real property, including a description of how the action affects the use or value of private real property;
(4) Alternatives, if any, to the proposed action that will fulfill the legal obligations of the division, reduce the impact on the private real property owner and reduce the likelihood of requiring compensation; and
(5) An estimate of the cost to the state for compensation in the event such compensation is required.
(b) If an action of the division is reasonably likely to result in depriving a private real property owner of part of the productive use of his or her private real property which may result in a court of competent jurisdiction requiring the state to compensate the owner for such use, the division shall only perform an assessment as set forth in subsection (a) of this section, after submitting the question of whether a court would be reasonably likely to require the private real property owner to be compensated to the attorney general and receiving an informal opinion of the attorney general that compensation will likely be required by a court of competent jurisdiction. The attorney general shall issue an informal opinion on the question within thirty days of receipt of the request. In the event the informal opinion is not issued within the thirty day period, the division shall determine if it is reasonably likely that a court of competent jurisdiction may require the state to compensate the private real property owner for such use and, if so, shall perform an assessment.
(c) In the case of an immediate threat to human health and safety that constitutes an emergency and requires an immediate response, the assessment required by this section may be delayed until after the emergency response is completed.
(d) The following do not require an assessment under this section:
(1) Licensing or permitting conditions, requirements, or limitations to the use of private real property if required by applicable state or federal statutes, rules or regulations; or
(2) Rules and emergency rules of the division that are reasonably likely to limit the use of private real property if the limitation is required by applicable state or federal statutes, rules or regulations; or
(3) Enforcement actions undertaken by the division pursuant to any applicable state or federal statutes, rules or regulations.
(e) Before the division implements an action that is reasonably likely to result in requiring compensation to be paid to a private real property owner, the division shall submit a copy of its assessment to the governor, except that in the case of an emergency, the assessment may be submitted after the implementation of the action, pursuant to subsection (c) of this section. Assessments made pursuant to this article are public information. The summary of assessments made pursuant to this article shall be included in the annual report of the division.
 § 22-1A-5. Buffer zones.
(a) Prior to the division requiring that a buffer zone be created on private real property, the division shall prepare a report which shall identify the public purpose or policy which is to be served by the creation of the buffer zone and how the creation and maintenance of the buffer zone promotes or fulfills that public purpose or policy. This report is in addition to any other assessment required pursuant to the provisions of this article.
(b) Any report made pursuant to this section is public information.
(c) In the case of an immediate threat to human health and safety that constitutes an emergency and requires an immediate response, the report required by this section may be delayed until after the emergency response is completed.
 § 22-1A-6. Remedies.
When a court of competent jurisdiction determines that action of the division requires that compensation be paid to a private real property owner pursuant to section nine, article three of the constitution of West Virginia, or the fifth or fourteenth amendments of the constitution of the United States, the private real property owner is also entitled to his or her reasonable attorney fees and costs:
(1) If the court determines that the division failed to perform the assessment required in section four of this article; or
(2) If the court determines that the division performed the assessment required in section four of this article but failed to conclude that its action was reasonably likely to require compensation to be paid to the private real property owner.
 § 22-1A-7. Scope of application.
The provisions of this article only apply to the programs administered by the division of environmental protection on the effective date of this article.

NOTE: The purpose of this bill is to require the division of environmental protection to create guidelines regarding and provide assessments of agency action that is reasonably likely to result in a constitutional taking of private real property.