Bill 816

                    Current Status

Introducing Body:               Senate
Bill Number:                    816
Primary Sponsor:                Elliott
Committee Number:               11
Type of Legislation:            GB
Subject:                        Private Property Protection
                                Act
Residing Body:                  Senate
Computer Document Number:       NO5/7318SD.93
Introduced Date:                19930601
Last History Body:              Senate
Last History Date:              19930601
Last History Type:              Introduced, read first time,
                                referred to Committee
Scope of Legislation:           Statewide
All Sponsors:                   Elliott
Type of Legislation:            General Bill

Bill  Body    Date          Action Description              CMN  Leg Involved
____  ______  ____________  ______________________________  ___  ____________

816   Senate  19930601      Introduced, read first time,    11
                            referred to Committee

A BILL

TO AMEND TITLE 28, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EMINENT DOMAIN BY ADDING CHAPTER 13 SO AS TO ENACT THE "SOUTH CAROLINA PRIVATE PROPERTY PROTECTION ACT OF 1993" INCLUDING PROVISIONS PROVIDING THAT COMPENSATION MUST BE PAID UNDER CERTAIN CONDITIONS AS A RESULT OF REGULATIONS OR ACTIONS BY STATE AGENCIES SUBSTANTIALLY INTERFERING WITH OR TAKING PRIVATE PROPERTY, REQUIRING AGENCIES TO CREATE GUIDELINES TO DETERMINE WHETHER THERE IS A TAKING, PROVIDING FOR AN ASSESSMENT TO BE MADE BEFORE THE ACTION IS TAKEN, AND PROVIDING FOR EMERGENCIES WHEN HEALTH AND SAFETY IS AN ISSUE.

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 28-13-10. This chapter is known and may be cited as the `South Carolina Private Property Protection Act of 1993'.

Section 28-13-20. As used in this chapter:

(A) `Constitutional taking' or `taking' means due to a governmental action private property is taken such 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) Article 1, Section 13 of the Constitution of this State.

(B)(1) `Governmental action' or `action' means:

(a) proposed regulations and emergency regulations by a state agency that if adopted and enforced may limit the use of private property unless its provisions are in accordance with applicable state or federal provisions of law;

(b) proposed or implemented licensing or permitting conditions, requirements, or limitations to the use of private property unless its provisions are in accordance with applicable state or federal provisions of law or the regulations applicable thereto;

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

(d) provisions or law on the regulations applicable thereto.

(2) `Governmental action' or `action' does not mean:

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

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

(c) law enforcement activity involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings;

(d) orders and enforcement actions that are issued by a state agency or a court of law in accordance with applicable federal or state provisions of law.

(C) `Private property' means any real or personal property in this State that is protected by either the fifth or fourteenth amendment of the Constitution of the United States or Article I, Section 13 of the Constitution of this State.

(D) `State agency' means an officer, entity, or department of state government that is authorized by law to promulgate regulations. State agency does not include the legislative or judicial branches of state government.

Section 28-13-30. (A) Each state agency shall adopt guidelines to assist them in the identification of actions that have constitutional taking implications.

(B) In creating the guidelines, the state agency shall take into consideration recent court rulings on the taking of private property.

(C) The state agency shall complete the guidelines on or before July 1, 1994, and review and update the guidelines annually to maintain consistency with court rulings.

Section 28-13-40. (A) Using the guidelines prepared under Section 28-13-30, each state agency shall:

(1) determine whether an action has constitutional taking implications; and

(2) prepare an assessment of constitutional taking implications that includes an analysis of the following:

(a) 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;

(b) alternatives to the proposed action that may:

(i) fulfill the government's legal obligations of the state agency;

(ii) reduce the impact on the private property owner; and

(iii) reduce the risk of a constitutional taking;

(c) 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 28-13-30, 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 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 must 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 must be kept to the minimum necessary.

(4) Before taking an action restricting private property use for the protection of public health or safety, the state agency, in internal deliberative documents, shall:

(a) clearly identify, with as much specificity as possible, the public health or safety risk created by the private property use;

(b) establish that the action substantially advances the purpose of protecting public health and safety against the specifically identified risk;

(c) establish, to the extent possible, that the restrictions imposed on the private property are proportionate to the extent the use contributes to the overall risk; and

(d) estimate, to the extent possible, the potential cost to the State or local government if a court determines that the action constitutes a constitutional taking.

(C) If there is an immediate threat to health and safety that constitutes an emergency and requires an immediate response, the analysis required by item (B)(2) of this section may be made when the response is completed.

(D) Before the state agency implements an action that has constitutional taking implications, the state agency shall submit a copy of the assessment of constitutional taking implications to the State Budget and Control Board."

SECTION 2. This act takes effect upon approval by the Governor.