S 0686 General Bill, By Land and Holland

Similar(H 3591)
 A BILL TO AMEND TITLE 28, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
 EMINENT DOMAIN, BY ADDING CHAPTER 4 SO AS TO ENACT THE "SOUTH CAROLINA
 PROPERTY RIGHTS ACT".

   04/23/97  Senate Introduced and read first time SJ-4
   04/23/97  Senate Referred to Committee on Judiciary SJ-4

TO AMEND TITLE 28, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EMINENT DOMAIN, BY ADDING CHAPTER 4 SO AS TO ENACT THE "SOUTH CAROLINA PROPERTY RIGHTS ACT".

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

SECTION 1. Title 28 of the 1976 Code is amended by adding:

Section 28-4-10. This chapter may be cited as the 'South Carolina Property Rights Act' and any references to the term 'act', unless the context clearly indicates otherwise, mean the 'South Carolina Property Rights Act'.

Section 28-4-20. As used in this chapter:

(1)(a) 'Governmental action' or 'action' means:

(i) proposed or enacted laws, regulations, emergency regulations, and ordinances by a governmental entity which by adoption or enforcement limit the use of private property;

(ii) licensing or permitting conditions, requirements, or limitations on the use of private property;

(iii) required dedications or exactions from owners of private property;

(iv) amendments to any of the above.

(b) The following actions are not included in the definition of 'governmental action' or 'action':

(i) activity in which the power of eminent domain is exercised formally;

(ii) repealing regulations, discontinuing governmental programs, or amending regulations in a manner that lessens interference with the use of private property;

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

(iv) orders and enforcement actions that are issued by a governmental entity or a court in accordance with applicable federal or state provisions of law;

(v) governmental action specifically mandated by a federal governmental authority, to the extent that the action does not result from the exercise of legislative, executive, or administrative discretion.

(2) 'Governmental entity' means:

(a) an officer, entity, or department of state government that is authorized to promulgate regulations;

(b) the General Assembly;

(c) a political subdivision of the State that is created by the State Constitution or by general or special act, or a county or municipality that independently exercises governmental authority;

(d) a special purpose district.

(3) 'Private real property' means any real property in this State that is protected by either the Fifth Amendment or the Fourteenth Amendment to the Constitution of the United States or Article 1, Section 13 of the State Constitution.

(4) 'Taking' or 'constitutional taking' means a governmental action that affects private real property in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth Amendment or the Fourteenth Amendment to the United States Constitution, or both, or Article 1, Section 13 of the South Carolina Constitution.

Section 28-4-30. (A) The General Assembly declares the basic state policies furthered by this chapter to be the recognition that land use regulation may constitute a taking requiring compensation, and the requirement that governmental entities follow the same procedures with respect to compensating landowners to the event of a taking through regulation as they are required to follow for the physical appropriation of real property under Chapter 2 of Title 28.

(B) Specific policies which must be promoted through the implementation of this chapter are to:

(1) provide uniform procedures for compensation when property has been taken through regulation;

(2) reduce costly litigation which may be caused by taking claims arising from the implementation of regulations;

(3) provide for the development and use of administrative procedures to afford landowners alternative remedies to compensation if possible, or to compensate landowners for a taking resulting from land use regulation;

(4) assist governmental entities in planning and budgeting for state programs which involve the regulation of land use;

(5) provide for the efficient use of state resources in the achievement of state objectives involving land use regulation;

(6) maximize the results of desirable regulation through cost control, informed planning, and the avoidance of after-the-fact litigation;

(7) provide explicit guidelines for governmental entities involved in land use regulation;

(8) protect the property rights of landowners and provide for compensation or alternative remedies for a taking through regulation.

Section 28-4-40. (A) The Attorney General shall prepare a checklist of guidelines to assist governmental entities in evaluating proposed governmental action to assure that such actions do not result in a taking of private property.

(B) In establishing the guidelines, the Attorney General shall take into consideration recent court rulings on the taking of private property. A person may make comments or suggestions or provide information to the Attorney General concerning the guidelines. The Attorney General shall consider the comments, suggestions, and information in the annual review process required by subsection (C) of this section.

(C) The Attorney General shall complete the guidelines by October 1, 1997 and distribute them to all governmental entities. The guidelines must be filed with Legislative Council and published in the State Register. The Attorney General shall review the guidelines at least annually and revise them as necessary to ensure consistency with the decisions of the Supreme Court of the United States and the Supreme Court of South Carolina and the expressed intentions of this chapter.

(D) The checklist of guidelines shall include, among other factors considered appropriate by the Attorney General, the following considerations:

(1) the specific purpose of the proposed regulation;

(2) a statement as to how the proposed regulation advances that purpose;

(3) the probable effect of the proposed action on the use and value of private property, including an evaluation of the probable cost of acquisition of an interest in that property through enactment or enforcement of the regulation;

(4) alternatives to the proposed action that may lessen the effect on private property or which may involve lower probable costs to the State;

(5) the source of payment within the governmental entity's budget for such compensation.

Section 28-4-50. To the extent reasonably possible, governmental entities shall avoid adopting or enforcing regulations in a manner that constitutes a taking of property under the Constitution of this State or the Constitution of the United States.

Section 28-4-60. (A) Before the adoption or enforcement of regulations affecting land use, governmental entities, consistent with the guidelines established by Section 28-4-40, shall assess the proposed regulation and prepare a written assessment which specifically and fully addresses each of the checklist guidelines.

(B) The written assessment is public information and must be made available by the governmental entity upon request.

Section 28-4-70. A party may not institute suit under this chapter until all administrative remedies afforded by the applicable governmental entity are exhausted. If the parties cannot agree to an administrative remedy, the parties shall mediate the dispute with a mediator selected by the parties from a list of certified mediators maintained by the South Carolina Bar, as a condition precedent to suit. All administrative remedies and the mediation process must be completed within one hundred eighty days from the date the aggrieved private property owner institutes the administrative proceeding. If the matter is not resolved within the one hundred eighty-day period, the private property owner may commence a suit for compensation.

Section 28-4-80. (A) To avoid or resolve a dispute under this chapter, a governmental entity is specifically authorized and empowered to recommend one or more alternatives, consistent with applicable law that protect the public interest served by the governmental action at issue but allow for reduced restraints on the use of the owner's real property including, but not limited to:

(1) an adjustment of land development or permit standards or other provisions controlling the development or use of land;

(2) increases or modifications in the density, intensity, or use of areas of development;

(3) the transfer of development rights;

(4) land swaps or exchanges;

(5) mitigation, including payments in lieu of onsite mitigation;

(6) location on the least sensitive portion of the property;

(7) conditioning the amount of development or use permitted;

(8) a requirement that issues be addressed on a more comprehensive basis than a single proposed use or development;

(9) issuance of a variance, special exception, or other extraordinary relief, including withdrawal of the proposed action;

(10) purchases of the real property, or an interest in it, by an appropriate governmental entity.

(B) This section does not prohibit the owner and governmental entity from entering into an agreement as to the permissible use of the property prior to the administrative agency or mediator entering a recommendation.

Section 28-4-90. (A) Sovereign immunity shall not be a defense to an action brought pursuant to this chapter.

(B) A person who has a claim under this chapter may sue the State or a governmental entity, as provided by this chapter, to:

(1) recover damages;

(2) invalidate a governmental action; or

(3) recover damages and invalidate a governmental action.

(C) This chapter does not preclude a person from electing to pursue a claim under the United States Constitution in the federal court having proper jurisdiction.

Section 28-4-100. (A) After the parties have exhausted the applicable governmental entity's administrative remedies and the mediation process prescribed by this chapter, an aggrieved private real property owner may bring suit de novo to recover compensation for a taking. A suit under this chapter must be filed in a court which has jurisdiction of statutory eminent domain actions in the county in which the private real property owner's affected property is located. If the affected private real property is located in more than one county, the private real property owner may file suit in any county in which the affected property is located and demand a jury trial to determine all factual issues.

(B) A suit under this chapter must be filed not later than three years after the date the private real property owner knew or should have known that the alleged taking had occurred.

Section 28-4-110. (A) Whether a governmental action results in a taking is a question of fact.

(B) The compensation owed to the private real property owner in a suit under this chapter must be determined from the date of the taking and is the difference between the market value of the private real property, determined as though the governmental action is not in effect, and the market value of the private real property determined as though the governmental action is in effect.

(C) The trier of fact, in determining the diminution in market value, may not consider an injury or benefit that is sustained or enjoyed in similar degree by private real property owners in the general community unless the governmental action imposes a direct physical or legal restriction on the use of the property.

(D) If the trier of fact determines that a governmental action resulted in a taking, and the governmental action has ceased or has been rescinded, amended, invalidated, or repealed, the private real property owner may recover compensation in an amount equal to the temporary or permanent economic loss sustained while the governmental action was in effect.

(E) The court shall award a private real property owner who prevails in a suit under this chapter reasonable and necessary attorney's fees, expert witness fees, court costs, and prejudgment interest. Prejudgment interest under this subsection must be calculated from the date of the taking.

Section 28-4-120. (A) The court's judgment in favor of a private real property owner in a suit under this chapter shall:

(1) order the governmental entity or the Attorney General, as appropriate, to certify to the court whether all compensation, fees, costs, and interest owed under this chapter have been paid;

(2) enjoin the governmental entity from enforcing or continuing the governmental action as applied to the private real property owner until the date the governmental entity or the Attorney General, as appropriate, certifies to the court that all compensation, fees, costs, and interest owed under this chapter have been paid.

(B) A judgment awarding compensation to a private real property owner who prevails in a suit against a governmental entity under this chapter is subject to an appropriation by the appropriate funding agency."

SECTION 2. Except as otherwise provided in this act, this act takes effect upon approval by the Governor and applies to governmental action, as defined in Section 28-4-20(1) of the 1976 Code as contained in Section 1 of this act, which is first proposed or enacted on September 1, 1997 and thereafter.