63L-3 - Private Property Protection Act

Title 63L > 63L-3

Sections (4)

General Provisions

63L-3-101 - Title.

This chapter is known as the “Private Property Protection Act.”

63L-3-102 - Definitions.

As used in this chapter: 63L-3-102(1) “Constitutional taking” or “taking” means a governmental action that results in a taking of private property so that compensation to the owner of the property is required by:

the Fifth or Fourteenth Amendment of the Constitution of the United States; or Utah Constitution Article I, Section 22. 63L-3-102(2) “Governmental action” or “action” means: proposed rules and emergency rules 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 statutes; and the agency has adopted and implemented the guidelines required by Section 63L-3-201; 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 statutes, rules, or regulations; and the agency has adopted and implemented the guidelines required by Section 63L-3-201; required dedications or exactions from owners of private property; or statutes and rules. “Governmental action” or “action” does not mean: activity in which the power of eminent domain is exercised formally; repealing rules discontinuing governmental programs or amending rules in a manner that lessens interference with the use of private property; law enforcement activity involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings; school and institutional trust land management activities and disposal of land and interests in land conducted pursuant to Title 53C, School and Institutional Trust Lands Management Act; orders and enforcement actions that are issued by a state agency in accordance with Title 63G, Chapter 4, Administrative Procedures Act, and applicable federal or state statutes; or orders and enforcement actions that are issued by a court of law in accordance with applicable federal or state statutes. 63L-3-102(3) “Private property” means any school or institutional trust lands and any real or personal property in this state that is protected by:

the Fifth or Fourteenth Amendment of the Constitution of the United States; or Utah Constitution Article I, Section 22. 63L-3-102(4) “State agency” means an officer or administrative 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. 63L-3-102(5) “Takings law” means the provisions of the federal and state constitutions, the case law interpreting those provisions, and any relevant statutory provisions that require a governmental unit to compensate a private property owner for a constitutional taking.

Requirements for State Agencies

63L-3-201 - State agencies to adopt guidelines.

63L-3-201(1) Each state agency shall adopt guidelines to assist them in the identification of actions that have constitutional taking implications. 63L-3-201(2) In creating the guidelines, the state agency shall take into consideration recent court rulings on the taking of private property. 63L-3-201(3) Each state agency shall complete the guidelines on or before January 1, 1999, and review and update the guidelines annually to maintain consistency with court rulings.

63L-3-202 - Agency actions.

63L-3-202(1) Using the guidelines prepared under Section 63L-3-201, 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: 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; alternatives to the proposed action that may:

fulfill the government’s legal obligations of the state agency; reduce the impact on the private property owner; and reduce the risk of a constitutional taking; and 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. 63L-3-202(2) In addition to the guidelines prepared under Section 63L-3-201, 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:

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. 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. 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. Before taking an action restricting private property use for the protection of public health or safety, the state agency, in internal deliberative documents, shall: clearly identify, with as much specificity as possible, the public health or safety risk created by the private property use; establish that the action substantially advances the purpose of protecting public health and safety against the specifically identified risk; 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 estimate, to the extent possible, the potential cost to the government if a court determines that the action constitutes a constitutional taking. 63L-3-202(3) If there is an immediate threat to health and safety that constitutes an emergency and requires an immediate response, the analysis required by Subsection (2)(b) may be made when the response is completed. 63L-3-202(4) 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 governor and the Legislative Management Committee.