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Bill 799

                    Current Status

Bill Number:                      799
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  19990506
Primary Sponsor:                  McConnell
All Sponsors:                     McConnell
Drafted Document Number:          l:\council\bills\nbd\11302jm99.doc
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Private Property Rights Protection Act, 
                                  Courts, Administrative Law Judge, Political 
                                  Subdivisions, Zoning, Regulations


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  19990506  Introduced, read first time,           11 SJ
                  referred to Committee


                             Versions of This Bill

TO ENACT THE "SOUTH CAROLINA PRIVATE PROPERTY RIGHTS PROTECTION ACT"; TO AMEND SECTION 1-23-570, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PROVISIONS OF LAW MAKING THE CHIEF JUDGE OF THE SOUTH CAROLINA ADMINISTRATIVE LAW JUDGE DIVISION RESPONSIBLE FOR THE ADMINISTRATION OF THAT DIVISION, SO AS TO PROVIDE THAT, WHEN MAKING ASSIGNMENTS, THE CHIEF JUDGE SHALL ASSIGN ONE JUDGE OF THE DIVISION TO HEAR CASES IN WHICH A PETITIONER SEEKS A VARIANCE FROM A STATE LAW OR REGULATION DIRECTLY AFFECTING THE USE OF LAND; TO AMEND CHAPTER 23, TITLE 1, RELATING TO STATE AGENCY RULE-MAKING AND ADJUDICATION OF CONTESTED CASES, BY ADDING ARTICLE 7 SO AS TO ENACT PROVISIONS REGULATING VARIANCE FROM STATE LAWS OR REGULATIONS DIRECTLY AFFECTING THE USE OF LAND, INCLUDING PROVISIONS FOR, AMONG OTHER THINGS, EXCLUSIONS, THE POWER TO GRANT VARIANCES, PETITIONS FOR VARIANCE, SCREENING OF PETITIONS, NOTICE, LOCAL GOVERNMENT'S RIGHT TO INTERVENE, PREHEARING PROCEEDINGS, SETTLEMENT PROPOSALS, HEARINGS, RELIEF, JUDICIAL REVIEW, AND REGULATIONS; TO AMEND ARTICLE 3, CHAPTER 29 OF TITLE 6, RELATING TO THE COMPREHENSIVE LOCAL PLANNING PROCESS UNDER THE "SOUTH CAROLINA LOCAL GOVERNMENT COMPREHENSIVE PLANNING ENABLING ACT OF 1994", BY ADDING SECTION 6-29-550 SO AS TO PROVIDE THAT A MUNICIPALITY OR COUNTY MAY ADOPT ORDINANCES DIRECTLY REGULATING LAND USE ONLY AFTER ADOPTING AT LEAST THE LAND USE ELEMENT OF THE COMPREHENSIVE PLAN SET FORTH IN THIS ARTICLE, AND PROVIDE THAT A MUNICIPALITY OR COUNTY WHICH BY ORDINANCE DIRECTLY REGULATES LAND USE SHALL EMPOWER A PERSON OR ENTITY TO GRANT VARIANCES FROM SUCH ORDINANCES IN CASES OF UNNECESSARY HARDSHIP; AND TO AMEND ARTICLE 5, CHAPTER 29 OF TITLE 6, RELATING TO LOCAL PLANNING AND ZONING UNDER THE "SOUTH CAROLINA LOCAL GOVERNMENT COMPREHENSIVE PLANNING ENABLING ACT OF 1994", BY ADDING SECTIONS 6-29-765 SO AS TO REQUIRE A ZONING ADMINISTRATOR TO PROVIDE A LANDOWNER, UNDER CERTAIN CONDITIONS, INFORMATION CONCERNING MECHANISMS AVAILABLE FOR MITIGATING OR MODIFYING THE EFFECTS OF A ZONING OR OTHER ORDINANCE ON A PARTICULAR TRACT OF LAND, AND 6-29-815 SO AS TO PROVIDE THAT IF AN APPEAL FOR VARIANCE FROM THE REQUIREMENTS OF A ZONING ORDINANCE IS DENIED BY THE BOARD OF APPEALS, THE LANDOWNER MAY PETITION THE SOUTH CAROLINA ADMINISTRATIVE LAW JUDGE DIVISION FOR JUDGMENT ON WHETHER THE APPLICATION TO HIS LAND OF THE ZONING OR OTHER ORDINANCE CONSTITUTES A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHOUT JUST COMPENSATION IN VIOLATION OF THE UNITED STATES CONSTITUTION OR THE SOUTH CAROLINA CONSTITUTION, OR BOTH, AND PROVIDE FOR RELATED MATTERS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. This act may be referred to and cited as the 'South Carolina Private Property Rights Protection Act' .

SECTION 2. Section 1-23-570 of the 1976 Code, as added by Section 19 of Act 181 of 1993 and amended by Act 359 of 1998, is further amended to read:

"Section 1-23-570. The Chief Judge of the Administrative Law Judge Division is responsible for the administration of the division, including budgetary matters, assignment of cases, and the administrative duties and responsibilities of the support staff. The chief judge shall assign judges of the division to hear all cases of the various state departments and commissions for which it is responsible on a general rotation and interchange basis by scheduling and assigning administrative law judges based upon subject matter no less frequently than every six months. When making assignments, the chief judge shall also assign one judge of the division to hear cases in which a petitioner seeks a variance from a state law or regulation directly affecting the use of land, as provided in Article 7 of this chapter."

SECTION 3. Chapter 23, Title 1 of the 1976 Code is amended by adding:

Section 1-23-700. It is the purpose of this article to provide an expedient and inexpensive remedy where the impact of applying a state law or regulation to a tract of land is so severe and the public benefit so minimal that the particular application of the law or regulation is of questionable constitutionality. The provisions of this article must be interpreted so as to accomplish this purpose.

Section 1-23-710. For purposes of this article:

(1) 'Administrative law judge' means the administrative law judge assigned by the chief judge to hear petitions for variance from a state law or regulation directly affecting the use of land, as provided in Section 1-23-570.

(2) 'Agency' means the state agency which took the action complained of in a petition for variance pursuant to this article.

(3) 'Division' means the Administrative Law Judge Division.

(4) 'Government entity' means an officer or department of state government that is authorized to take actions directly affecting the use of land.

(5) 'Land' means a portion of the earth's surface which was either (a) the entire tract owned by a particular landowner at the time of adoption of the law or regulation from which variance is sought, or (b) a lot identified on a plat recorded prior to adoption of the law or regulation from which variance is sought.

(6) 'Landowner' means a person who holds a present freehold estate in the land which allegedly is subject to 'unnecessary hardship'.

(7) 'Regulatory system' means a body of statutes and regulations that create an integrated set of rules for achieving a legislative objective.

Section 1-23-720. This article has no application to the following government actions:

(1) law enforcement activity involving the seizure or forfeiture of private property for a violation of law or the seizure of property to be used as evidence in a criminal proceeding;

(2) issued orders or enforcement actions initiated by a government entity or a court of competent jurisdiction in accordance with provisions of state or federal law;

(3) enforcement or implementation of federal law or regulations by the state agency.

Section 1-23-730. (A) An administrative law judge assigned by the chief judge pursuant to Section 1-23-570 has the power to hear and decide petitions for variance from the requirements of a state law or regulation directly affecting the use of land when it is alleged that strict application of the law or regulation would result in unnecessary hardship as defined in subsection (B).

(B) Except as otherwise provided in this section, the judge may grant a variance or other form of relief provided for in this article in an individual case of unnecessary hardship upon making all of the following findings:

(1) there are extraordinary and exceptional conditions pertaining to the particular piece of land that do not generally apply to other land subject to the law or regulation from which variance is sought; and

(2)(a) because of these conditions, the application of the law or regulation to the particular piece of land would deprive the land of substantially most of its economically beneficial use; or

(b) the law or regulation requires termination of an existing lawful business or would otherwise unreasonably interfere with distinct investment-backed expectations of the landowner, and variance from the law or regulation would not substantially undermine the legitimate state interests sought to be advanced by the regulatory system. For purposes of this subsection, the state interests advanced by the regulatory system are those interests stated in the body of law that creates the regulatory system or manifested in the standards from which a variance is sought; and

(3) the authorization of a variance will not unfairly disadvantage other landowners restricted by the regulatory system; and

(4) the purpose of the regulatory system will not be undermined by granting the variance. The purpose of the regulatory system is a purpose stated in the body of law that creates the regulatory system or a purpose that is manifested in the standards from which a variance is sought.

(C) The fact that property may be utilized more profitably if a variance is granted is not grounds for a variance.

(D) No variance may be granted from a regulation where the effect of the regulation is equivalent to abatement or mitigation of a public or private nuisance, and the variance would permit the existence of the nuisance.

(E) The administrative law judge may attach to a variance conditions regarding the location, character, or other features of the proposed building, structure, site plan, or use designed to protect either the state interests advanced by the regulatory system or the interests of other persons whose use of land is restricted by the regulatory system.

Section 1-23-740. (A) A landowner who believes that the application of a state law or regulation to his land by an agency of the State results in unnecessary hardship as defined in Section 1-23-730(B) may petition the division for a variance within thirty days after notice of the action alleged to result in the hardship.

(B) The petition must allege facts which, if proved, would show that the effect of applying the law or regulation to his land meets the criteria for unnecessary hardship.

(C) The landowner must file a copy of the petition with the division and serve a copy on the agency whose action is the subject of the petition.

Section 1-23-750. (A) Within ten days after receiving a variance petition, the administrative law judge must review the petition, and any information submitted to the division by the agency, to determine whether the petition states a prima facie claim for relief.

(B) If the administrative law judge determines that the petition does not state a prima facie claim, the administrative law judge must issue a written statement refusing to accept the petition for hearing and stating the basis for the determination. A copy of the statement must be provided to the petitioner and the agency. If requested by the landowner within ten days after notice that the administrative law judge has refused to accept the petition, the administrative law judge must hold a hearing on the issue of whether the petition state a prima facie claim. The issue at the hearing is limited to the sufficiency of the petition, and no evidence other than the record existing at the time of the initial determination by the administrative law judge may be considered.

(C) The division must not accept a petition for variance from a permitting requirement until a permit has been applied for an denied. However, a petition for variance from a permitting requirement may be accepted if the administrative law judge finds that application for a permit would be futile because of the clear inability of the landowner to meet the criteria for a permit.

(D) If the administrative law judge determines that the petition states a prima facie claim, the division shall schedule the petition for hearing on the next date for hearing variance petitions that falls at least thirty days after notice of the determination is provided to the landowner.

Section 1-23-760. (A) The division shall provide written notice of the hearing to the landowner, the regulatory agency, and the county or municipality with comprehensive planning authority over the land. The notice shall direct the parties to attempt to reach a settlement prior to the date set for the hearing.

(B) Upon receipt of notice from the division, the agency must provide notice of the hearing by mail to all persons other than the landowner who were parties to or commented in the administrative proceeding that gave rise to the petition. If there was no administrative proceeding, the regulatory agency must post conspicuous notice of the hearing on or adjacent to the affected land so that a notice is visible from every public road bordering the land. The agency satisfies the requirement to post notice on the land if it provides notice signs to the landowner who wilfully fails to post notice as directed by the agency may be held in contempt.

(C) Notice under this section includes the date, time, place, and nature of the hearing and a description of the law or regulation from which a variance is sought.

Section 1-23-770. (A) Upon receipt of notice of the hearing from the division, the agency must immediately transmit to the division and the petitioner the record of the action giving rise to the claim of unnecessary hardship.

(B) The filing of a variance petition by the landowner stays all legal proceedings in furtherance of the action giving rise to the claim of unnecessary hardship, unless the agency certifies to the division by verified pleading, after receiving notice of the hearing, that by reason of facts stated in the certification, a stay would cause imminent peril to life or property. If a certification is filed, proceedings may not be stayed otherwise than by order of the administrative law judge upon application for good cause shown.

Section 1-23-780. The county or municipality with comprehensive planning authority over the land must be allowed to intervene in a proceeding under this article upon complying with the procedural requirements contained in the rules of the division.

Section 1-23-790. (A) Upon his own motion or the motion of a party, the administrative law judge may schedule a prehearing conference to attempt a settlement or to clarify the issues to be determined at the hearing.

(B) Upon his own motion or the motion of a party, the administrative law judge may refer the case for mediation, with the mediator to be selected by the parties from the list of certified mediators maintained by the South Carolina Bar and the cost of mediation to be divided equally between the landowner and the agency. Relief agreed to in mediation must be treated as a 'settlement proposal' under this section.

Section 1-23-800. (A) Within thirty days after receiving notice of the hearing from the division, the agency must file with the administrative law judge a statement describing any steps that have been taken to attempt to reach a settlement with the landowner, and either:

(1) stating that a settlement proposal has been agreed upon and detailing the terms of the settlement proposal; or

(2) stating reasons why it is not possible or appropriate to provide relief to the landowner.

(B) Prior to the hearing, either the landowner or the agency may file a motion that:

(1) requests an extension of time for settlement negotiations upon showing that good faith efforts indicate a likelihood that the parties can agree upon a settlement proposal; or

(2) requests a prehearing conference to facilitate agreement on a settlement proposal or to clarify the issues to be determined at the hearing; or

(3) requests that the case be referred for mediation.

(C) A settlement proposal pursuant to this section is not limited to forms of relief that are under the jurisdiction of the regulatory agency or that the regulatory agency has authority to grant.

(D) If the relief provided for in a settlement proposal is within the authority of one or more parties to the proceeding and has been duly approved by that party, or parties, or has been duly approved by a government entity that is not a party to the proceeding but which has authority to grant the relief, the administrative law judge shall adopt the settlement proposal as his order. The administrative law judge shall continue the proceedings for a reasonable period agreed to by the parties if additional time is necessary to enable a government entity to complete its processes for approving proposed relief.

(E) If the relief provided for in a proposed settlement involves matters under the sole jurisdiction of a government entity that is not a party to the proceeding and which has not duly approved the proposed settlement, the administrative law judge shall make the government entity a party to the proceedings and shall reschedule the hearing for the next date for hearing variance petitions that falls at least thirty days after notice is provided to the government entity. The administrative law judge must assure that the government entity is provided with notice of the hearing, which shall include the date, time, place, and nature of the hearing, a description of the law or regulation from which a variance is sought, and a copy of the proposed settlement.

(F) If the proposed settlement includes forms of relief that the regulatory agency does not have authority to grant and that are not approved by the government entity, if any, that has authority to grant the relief, the administrative law judge shall treat the proposed settlement as a recommendation.

Section 1-23-810. (A) When a hearing is held pursuant to this article, the administrative law judge shall ensure that all persons involved in the hearing are treated fairly and impartially.

(B) The record submitted to the division by the agency must be incorporated into the record of the hearing. In addition, the agency, the landowner, and other parties may present further written or oral evidence. The administrative law judge shall allow questioning of agency representatives, witnesses, or persons making oral statements and may limit repetitive or immaterial statements or questions.

(C) A record must be made of the hearing to include all written material submitted, but the record need not be transcribed, except upon request of a party or the administrative law judge.

Section 1-23-820. (A) If the administrative law judge finds that strict application of the law or regulation would result in unnecessary hardship as defined in Section 1-23-730(B), the administrative law judge may grant a variance, which may be subject to conditions or limitations. Instead of granting a variance, the administrative law judge may order any other form of relief agreed to by the parties so long as the relief would not substantially undermine the purpose of any relevant regulatory system and would not otherwise have a substantial detrimental effect on the public health, safety, or welfare.

(B) This section does not give the administrative law judge authority to vary, alter, or otherwise limit the application of any local ordinance.

(C) The decision of the administrative law judge must be in writing and shall be permanently available as a public record. The decision must be sent by certified mail within ten days after the hearing to the landowner, other parties to the proceeding, and the county or municipality with comprehensive planning authority over the land.

Section 1-23-830. (A) A party may appeal the decision of the administrative law judge to the circuit court for the county in which the land is situated by filing with the clerk of the circuit court a petition in writing setting forth plainly and fully the basis for the appeal. The petition must be filed within thirty days after the decision is mailed to the parties.

(B) Upon the filing of the appeal, the clerk of the circuit court shall give immediate notice of the appeal to the division. Within thirty days from the time of the notice, the division shall file with the clerk a certified copy of the decision of the administrative law judge and the record on which the decision was based.

(C) At the next term of the circuit court or in chambers, upon ten days notice to the parties, the presiding judge of the circuit court of the county shall hear and decide the appeal on the certified record of the proceedings before the administrative law judge. The findings of fact of the administrative law judge must be treated in the same manner as a finding of fact by a jury, and evidence in addition to the certified record may be presented only with leave of the court. In the event the judge determines that the certified record is insufficient for review, the matter may be remanded to the division for rehearing. The court may reverse the decision of the administrative law judge only if it is incorrect as a matter of law or is not supported by substantial evidence on the record.

Section 1-23-840. Each government entity that directly regulates the use of land must promulgate regulations detailing the manner in which the government entity will comply with the requirements of this article.

Section 1-23-850. (A) The division shall adopt rules consistent with this article to govern proceedings on a petition for a variance.

(B) The Chief Judge of the Administrative Law Judge Division shall promulgate forms for use as a petition, notice of the claim, request to intervene, agency response, and any other document required to be filed by this article or the rules of the division.

(C) The division shall publish and make available to the public a booklet containing the forms and rules of procedure used by the division in proceedings under this article."

SECTION 4. Article 3, Chapter 29 of Title 6 of the 1976 Code, as added by Act 355 of 1994, is amended by adding:

"Section 6-29-550. A municipality or county may adopt ordinances directly regulating land use only after adopting at least the land use element of the comprehensive plan as set forth in this article. A municipality or county which by ordinance directly regulates land use shall empower a person or entity to grant variances from such ordinances in cases of unnecessary hardship as defined in Section 6-29-800(A)(2)."

SECTION 5. Article 5, Chapter 29 of Title 6 of the 1976 Code, as added by Act 355 of 1994, is amended by adding:

"Section 6-29-765. Upon request of a landowner who believes that the application of a zoning or other local ordinance to his land is unduly burdensome, the zoning administrator shall provide the landowner information concerning mechanisms available for mitigating or modifying the effects of the ordinance on a particular tract of land, including variance, special exception, classification as a nonconforming use, development agreement, planned unit development, and any other mechanism available under local ordinances, and the method for initiating consideration of each of these mechanisms."

SECTION 6. Article 5, Chapter 29 of Title 6 of the 1976 Code, as added by Act 355 of 1994, is amended by adding:

"Section 6-29-815. (A) If an appeal for variance from the requirements of a zoning ordinance is denied by the board of appeals, the landowner may petition the Administrative Law Judge Division for judgement on whether the application to his land of the zoning or other ordinance, either alone or in combination with regulations of other government entities, constitutes a taking of private property for public use without just compensation, in violation of the United States Constitution or the South Carolina Constitution, or both.

(B) A petition pursuant to this section must be heard by the administrative law judge designated to hear petitions for variance from state law or regulation as provided by Section 1-23-570, using the procedures provided for such petitions in Article 7, Chapter 23 of Title 1. The opinion of the administrative law judge must be based on the record of the proceedings before the board of appeals and any additional evidence or arguments presented at the hearing before the administrative law judge.

(C) The opinion of the administrative law judge must be in writing and shall state:

(1) whether or not the administrative law judge finds that the landowner's property has been taken for public use without just compensation in violation of the United States Constitution or the South Carolina Constitution, or both, and the basis for this conclusion; and

(2) if so, what restriction or combination of restrictions gives rise to the taking.

(D) If the administrative law judge concludes that a taking has occurred solely as a result of restrictions imposed by the local government, the zoning administrator within sixty days after issuance of the opinion shall bring the matter before the planning commission to consider whether some form of relief is appropriate and make a recommendation to the municipal or county council which is the governing authority.

(E) If the administrative law judge finds that a taking has occurred as a result of the combined effect of restrictions imposed by the local government entity and one or more state government entities, the administrative law judge shall issue an order of this finding and order appropriate damages.

(F) The opinion of the administrative law judge may be appealed to the circuit court in the circuit of the property's location. The opinion of the administrative law judge is subject to judicial review and is admissible as evidence in any judicial proceeding. The circuit court shall review the matter as to error of law and as to substantial evidence as to the administrative law judge's findings and may call any additional witnesses it deems appropriate and necessary as to the administrative law judge's findings."

SECTION 7. This act takes effect upon approval by the Governor.

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