H 3591 Session 112 (1997-1998)
H 3591 General Bill, By Harrison, Allison, Altman, Bailey, Barfield, Barrett,
Battle, Bauer, J.M. Baxley, Beck, Bowers, G. Brown, H. Brown, Campsen, Carnell,
Cato, Chellis, Cooper, Dantzler, Davenport, Easterday, Edge, J.G. Felder,
Fleming, Gamble, Harrell, Harvin, Haskins, Hawkins, Hinson, Jennings,
B.L. Jordan, Kelley, Kennedy, M.H. Kinon, Kirsh, Klauber, Knotts, Koon, Lanford,
Law, Leach, L.H. Limbaugh, Limehouse, Littlejohn, Maddox, Martin, Mason, McCraw,
McKay, J.D. McMaster, Neilson, Phillips, Quinn, Rice, Riser, Robinson, Sandifer,
Seithel, Sharpe, Simrill, D. Smith, R. Smith, Spearman, Stille, E.C. Stoddard,
Stuart, Townsend, Tripp, Trotter, Vaughn, Walker, Webb, Whatley, Wilkes,
Wilkins, Witherspoon, Woodrum, W.J. Young and Young-Brickell
Similar(S 686)
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".
03/04/97 House Introduced and read first time HJ-2
03/04/97 House Referred to Committee on Judiciary HJ-2
05/01/97 House Committee report: Favorable with amendment
Judiciary HJ-4
05/07/97 House Requests for debate-Rep(s). Harrison, D. Smith,
Limbaugh, J. Smith, Woodrum, Simrill,
Cobb-Hunter, Sandifer, Robinson, Knotts,
Chellis, Meacham, Cato, Canty, Breeland, Rhoad,
Mack, T. Brown, Clyburn & J. Hines HJ-68
05/21/97 House Amended HJ-85
05/21/97 House Debate interrupted HJ-104
05/22/97 House Amended HJ-90
05/22/97 House Debate interrupted HJ-96
05/27/97 House Amended HJ-64
05/27/97 House Read second time HJ-87
05/27/97 House Roll call Yeas-78 Nays-35 HJ-87
05/28/97 House Read third time and sent to Senate HJ-54
05/29/97 Senate Introduced and read first time SJ-7
05/29/97 Senate Referred to Committee on Judiciary SJ-7
AMENDED
May 27, 1997
H. 3591
Introduced by Reps. Harrison, D. Smith, Limbaugh, Wilkins, Allison,
Altman, Bailey, Barfield, Barrett, Battle, Bauer, Baxley, Beck,
Bowers, G. Brown, H. Brown, Campsen, Carnell, Cato, Chellis,
Cooper, Dantzler, Davenport, Easterday, Edge, Felder, Fleming,
Gamble, Harrell, Harvin, Haskins, Hawkins, Hinson, Jennings,
Jordan, Kelley, Kennedy, Kinon, Kirsh, Klauber, Knotts, Koon,
Lanford, Law, Leach, Limehouse, Littlejohn, Maddox, Mason,
McCraw, McKay, McMaster, Neilson, Phillips, Quinn, Rice, Riser,
Robinson, Sandifer, Seithel, Sharpe, Simrill, R. Smith, Spearman,
Stille, Stoddard, Stuart, Townsend, Tripp, Trotter, Vaughn, Walker,
Webb, Whatley, Wilkes, Witherspoon, Woodrum, Young,
Young-Brickell and Martin
S. Printed 5/27/97--H.
Read the first time March 4, 1997.
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".
Amend Title To Conform
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:
"CHAPTER 4
The South Carolina Private Property
Rights Protection Act
Section 28-4-10. This chapter may be cited as the 'South Carolina
Private Property Rights Protection Act' and any references to the
term 'act', unless the context clearly indicates otherwise, mean the
'South Carolina Private Property Rights Protection Act'.
Section 28-4-20. The General Assembly recognizes that some
laws, regulations, and ordinances of the State and political
subdivisions of the State, as applied, may inordinately burden,
restrict, or limit private property rights without amounting to a taking
under the State Constitution or the United States Constitution. The
General Assembly determines that there is an important state interest
in protecting the interests of private property owners from such
inordinate burdens. Therefore, it is the intent of the General
Assembly that as a separate and distinct cause of action from the law
of takings, the General Assembly in this chapter provides for relief
or payment of compensation when a new law, regulation, or
ordinance of the State or of a political subdivision of the State, as
applied, unfairly affects real property.
Section 28-4-30. (A) When a specific action of a governmental
entity has inordinately burdened an existing use of real property or a
vested right to a specific use of real property, the property owner of
that real property is entitled to relief, which may include
compensation for the actual loss to the fair market value of the real
property caused by the action of government, as provided in this
section.
(B) For purposes of this section:
(1) The existence of a 'vested right' is to be determined by
applying the principles of equitable estoppel or substantive due
process under the common law or by applying the statutory law of
this State.
(2) The term 'existing use' means an actual present use or
activity on the real property including periods of inactivity which are
normally associated with, or are incidental to, the nature or type of
use or activity or such reasonably foreseeable, nonspeculative land
uses which are suitable for the subject real property and compatible
with adjacent land uses and which have created an existing fair
market value in the property greater than the fair market value of the
actual present use or activity on the real property.
(3) The term 'governmental entity' includes an agency of the
State, a regional or a local government created by the State
Constitution or by act of the General Assembly, any county, or
municipality, or any other entity that independently exercises
governmental authority. The term does not include the United States
or any of its agencies, or an agency of the State, a regional or a local
government created by the State Constitution or by act of the General
Assembly, any county or municipality, or any other entity that
independently exercises governmental authority, when exercising the
powers of the United States or any of its agencies through a formal
delegation of federal authority.
(4) The term 'action of a governmental entity' means a specific
action of a governmental entity which affects real property including
action on an application or permit.
(5) The terms 'inordinate burden' or 'inordinately burdened'
mean that an action of one or more governmental entities has directly
restricted or limited the use of real property such that the property
owner is unable to attain the reasonable, investment-backed
expectation for the existing use of the real property or a vested right
to a specific use of the real property with the respect to the real
property as a whole, or that the property owner is left with existing
or vested use that are unreasonable such that the property owner
bears a disproportionate share of a burden imposed for the good of
the public, which in fairness should be borne by the public at large.
The terms 'inordinate burden' or 'inordinately burdened' do not
include temporary impacts to real property; impacts to real property
occasioned by governmental abatement, prohibition, prevention, or
remediation of a public nuisance at common law or a noxious use of
private property; impacts to real property caused by an action of a
governmental entity taken to grant relief to a property owner under
this section; or any action of a governmental entity affecting either
the location of any type of solid or liquid waste disposal facility (or
the discharge therefrom) or landfill or expansion of any existing solid
or liquid waste disposal facility (or the discharge therefrom) or
landfill.
(6) The term 'property owner' means the person who holds legal
title to the real property at issue. The term does not include a
governmental entity.
(7) The term 'real property' means land and includes any
appurtenances and improvements to the land including any other
relevant real property in which the property owner had a relevant
interest.
(C) Nothing in this section shall be deemed to prevent the exercise
of the police powers of any governmental entity to adopt or modify
lawful zoning ordinances or comprehensive land use plans consistent
with the provisions of this chapter.
Section 28-4-40. (A) Not less than one hundred eighty days prior
to filing an action under this section against a governmental entity, a
property owner who seeks compensation under this section must
present the claim in writing to the head of the governmental entity.
The property owner must submit along with the claim a bona fide,
valid appraisal that supports the claim and demonstrates the loss in
fair market value to the real property. If the action of government is
the culmination of a process that involves more than one
governmental entity, or if a complete resolution of all relevant issues,
in the view of the property owner or in the view of a governmental
entity to whom a claim is presented, requires the active participation
of more than one governmental entity, the property owner shall
present the claim as provided in this section to each of the
governmental entities.
(B) The governmental entity shall provide written notice of the
claim to all parties to any administrative action that gave rise to the
claim, and to owners of real property contiguous to the owner's
property at the addresses listed on the most recent county tax rolls.
(C) During the one hundred eighty-day-notice period, unless
extended by agreement of the parties, the governmental entity shall
make a written settlement offer to effectuate:
(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 developmental 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 the development permit, a variance, special
exception, or other extraordinary relief;
(10) purchase of the real property, or an interest in the real
property, including development rights, by an appropriate
governmental entity;
(11) no changes to the action of the governmental entity.
If the property owner accepts the settlement offer, the governmental
entity may implement the settlement offer by appropriate
development agreement; by issuing a variance, special exception, or
other extraordinary relief, or by other appropriate method, subject to
subsection (D).
(D)(1) Whenever a governmental entity enters into a settlement
agreement under this section which would have the effect of a
modification, variance, or a special exception to the application of a
regulation or ordinance as it would otherwise apply to the subject real
property, the relief granted shall protect the public interest served by
the regulations at issue and be the appropriate relief necessary to
prevent the governmental regulatory effort from inordinately
burdening the real property.
(2) Whenever a governmental entity enters into a settlement
agreement under this section which would have the effect of
contravening the application of a statute as it would otherwise apply
to the subject real property, the governmental entity and the property
owner shall jointly file an action in the circuit court where the real
property is located for approval of the settlement agreement by the
court to ensure that the relief granted protects the public interest
served by the statute at issue and is the appropriate relief necessary
to prevent the governmental regulatory effort from inordinately
burdening the real property.
Section 28-4-50. (A) During the one hundred eighty-day-notice
period provided for in Section 28-4-40, unless a settlement offer is
accepted by the property owner, each of the governmental entities
provided notice pursuant to Section 28-4-40(A) shall issue a written
ripeness decision identifying the allowable uses to which the subject
property may be put. The failure of the governmental entity to issue
a written ripeness decision during the one hundred eighty-day-notice
period must be deemed to ripen the prior action of the governmental
entity and shall operate as a ripeness decision that has been rejected
by the property owner. The ripeness decision, as a matter of law,
constitutes the last prerequisite to judicial review, and the matter must
be deemed ripe or final for the purposes of the judicial proceeding
created by this section, notwithstanding the availability of other
administrative remedies.
(B) If the property owner rejects the settlement offer and the
ripeness decision of the governmental entity or entities, the property
owner may file a claim for compensation in the circuit court, a copy
of which must be served contemporaneously on the head of each of
the governmental entities that made a settlement offer and a ripeness
decision that was rejected by the property owner. Actions under this
section must be brought only in the county where the real property is
located.
Section 28-4-60. (A) The circuit court shall determine whether
an existing use of the real property or a vested right to a specific use
of the real property existed and, if so, whether considering the
settlement offer and ripeness decision, the governmental entity or
entities have inordinately burdened the real property. If the actions
of more than one governmental entity, considering any settlement
offers and ripeness decisions, are responsible for the action that
imposed the inordinate burden on the real property of the property
owner, the court shall determine the percentage of responsibility each
governmental entity bears with respect to the inordinate burden. A
governmental entity may take an interlocutory appeal of the court's
determination that the action of the governmental entity has resulted
in an inordinate burden. An interlocutory appeal does not
automatically stay the proceedings; however, the court may stay the
proceedings during the pendency of the interlocutory appeal. If the
governmental entity does not prevail in the interlocutory appeal, the
court shall award to the prevailing property owner the costs and a
reasonable attorney fee incurred by the property owner in the
interlocutory appeal.
(B) Following its determination of the percentage of responsibility
of each governmental entity, and following the resolution of any
interlocutory appeal, the court shall impanel a jury to determine the
total amount of compensation to the property owner for the loss in
value due to the inordinate burden to the real property. The award of
compensation must be determined by calculating the difference in the
fair market value of the real property, as it existed at the time of the
governmental action at issue, as though the owner had the ability to
attain the reasonable investment-backed expectation or was not left
with uses that are unreasonable, whichever the case may be, and the
fair market value of the real property, as it existed at the time of the
governmental action at issue, as inordinately burdened, considering
the settlement offer together with the ripeness decision, of the
governmental entity or entities. In determining the award of
compensation, consideration may not be given to business damages
relative to any development, activity, or use that the action of the
governmental entity or entities, considering the settlement offer
together with the ripeness decision has restricted, limited, or
prohibited. The award of compensation shall include a reasonable
award of prejudgment interest from the date the claim was presented
to the governmental entity or entities.
(C)(1) In any action filed pursuant to this section, the property
owner is entitled to recover reasonable costs and attorney fees
incurred by the property owner, from the governmental entity or
entities, according to their proportionate share as determined by the
court, from the date of the filing of the circuit court action, if the
property owner prevails in the action and the court determines that
the settlement offer, including the ripeness decision, of the
governmental entity or entities did not constitute a bona fide offer to
the property owner which reasonably would have resolved the claim,
based upon the knowledge available to the governmental entity or
entities and the property owner during the one hundred
eighty-day-notice period.
(2) In any action filed pursuant to this section, the governmental
entity or entities are entitled to recover reasonable costs and attorney
fees incurred by the governmental entity or entities from the date of
the filing of the circuit court action, if the governmental entity or
entities prevail in the action and the court determines that the
property owner did not accept a bona fide settlement offer, including
the ripeness decision, which reasonably would have resolved the
claim fairly to the property owner if the settlement offer had been
accepted by the property owner, based upon the knowledge available
to the governmental entity or entities and the property owner during
the one hundred eighty-day-notice period.
(3) The determination of total reasonable costs and attorney fees
pursuant to this subsection must be made by the court and not by the
jury. Any proposed settlement offer or any proposed ripeness
decision, except for the final written settlement offer or the final
written ripeness decision, and any negotiations or rejections in regard
to the formulation either of the settlement offer or the ripeness
decision, are inadmissible in the subsequent proceeding established
by this section except for the purposes of the determination pursuant
to this subsection.
(D) The circuit court may enter any orders necessary to effectuate
the purposes of this section and to make final determinations to
effectuate relief available under this section.
(E) An award or payment of compensation pursuant to this section
shall operate to grant to and vest in any governmental entity by whom
compensation is paid the right, title, and interest in rights of use for
which the compensation has been paid, which rights may become
transferable development rights to be held, sold, or otherwise
disposed of by the governmental entity. When there is an award of
compensation, the court shall determine the form and the recipient of
the right, title, and interest, as well as the terms of their acquisition.
(F) This section does not supplant methods agreed to by the parties
and lawfully available for arbitration, mediation, or other forms of
alternative dispute resolution, and governmental entities are
encouraged to utilize these methods to augment or facilitate the
processes and actions contemplated by this section.
(G) This section provides a cause of action for governmental
actions that may not rise to the level of a taking under the State
Constitution or the United States Constitution. This section may not
necessarily be construed under the case law regarding takings if the
governmental action does not rise to the level of a taking. The
provisions of this section are cumulative and do not abrogate any
other remedy lawfully available, including any remedy lawfully
available for governmental actions that rise to the level of a taking.
However, a governmental entity is not liable for compensation for an
action of a governmental entity applicable to, or for the loss in value
to, a subject real property more than once for the same inordinate
burden.
(H) This section does not apply to any actions taken by a
governmental entity which relate to the operation, maintenance, or
expansion of transportation facilities, and this section does not affect
existing law regarding eminent domain relating to transportation.
(I) A cause of action may not be commenced under this section if
the claim is presented more than one year after a law or regulation is
first applied by the governmental entity to the property at issue. If an
owner seeks relief from the governmental action through lawfully
available administrative or judicial proceedings, the time for bringing
an action under this section is tolled until the conclusion of those
proceedings.
(J) No cause of action exists under this section as to the
application of any law enacted on or before July 1, 1997, or as to the
application of any regulation or ordinance adopted, or formally
noticed for adoption, on or before that date. A subsequent
amendment to any such law, regulation, or ordinance gives rise to a
cause of action under this section only to the extent that the
application of the amendatory language imposes an inordinate burden
apart from the law, regulation, or ordinance being amended.
(K) This section does not affect the sovereign immunity of
government to the extent that sovereign immunity of government
exists in this State."
SECTION 2. This act takes effect July 1, 1997.
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