Senate Bill No. 249
(By Senators Manchin, Schoonover, Sharpe, Minard and Helmick)
____________
[Introduced February 2, 1994; referred to the Committee
on 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 agovernmental 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 ofthe 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 theimpact 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 orsafety 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 submita 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-fiveof 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.