Bill Text: MS HB1354 | 2020 | Regular Session | Introduced
Bill Title: "Mississippi Property Owner Fairness Act"; enact to provide restriction on exercise of eminent domain on private property.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Failed) 2020-03-03 - Died In Committee [HB1354 Detail]
Download: Mississippi-2020-HB1354-Introduced.html
MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary A; Constitution
By: Representatives Brown (20th), Criswell, Hopkins
House Bill 1354
AN ACT TO CREATE "MISSISSIPPI PROPERTY OWNERSHIP FAIRNESS ACT" TO ENSURE THAT GOVERNMENT CAN ONLY CONDEMN PRIVATE PROPERTY FOR TRULY PUBLIC USES; TO DEFINE TERMS USED IN THE ACT; TO REQUIRE THE GOVERNMENT TO COMPENSATE OWNERS WHEN ITS REGULATIONS REDUCE THE OWNER'S PROPERTY VALUES WITHOUT ENSURING PUBLIC HEALTH AND SAFETY; TO PRESCRIBE THE PROCEDURE TO BE USED IN THE SUBMISSION OF REQUIRED INFORMATION FOR CLAIMS FOR JUST COMPENSATION; TO PROVIDE FOR A WAIVER OF GOVERNMENTAL IMMUNITY; TO PRESCRIBE A THREE-YEAR STATUTE OF LIMITATIONS FOR CAUSES OF ACTION ARISING FROM EXERCISES OF EMINENT DOMAIN; TO PROVIDE FOR REMEDIES AVAILABLE TO A PROPERTY OWNER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known, and may be cited as the "Mississippi Property Ownership Fairness Act."
SECTION 2. Pursuant to Article I, Section 8, Clause 17 of the Constitution of the United States, the consent of this state may be given to the acquisition of any other privately owned real property within this state by the United States only upon the passage of legislation signed by the Governor, specific to the privately owned real property subject to the acquisition. The legislation shall recite the legal description of the land and the purposes to which the state consents that the property may be used.
SECTION 3. As used in this act, the following terms shall have the meanings ascribed in this section, unless the context requires otherwise:
(a) "Action of a governmental entity" or "governmental action" means an enforceable administrative, regulatory, or legislative action of a governmental entity, including any statute, law, rule, ordinance, resolution, guideline, policy, action on an application or permit, or similar measure, and whether enacted by a legislative body, citizen initiative, or referendum.
(b) "Claim" means a written demand for compensation filed in accordance with this act.
(c) "Enacted" means to enact, adopt, or amend.
(d) "Fair market value" means the price estimated in terms of money of private property that a willing buyer would pay a willing seller after considering all factors in the marketplace that influence the price of private property, including the highest and best use of the property.
(e) "Governmental entity" means the state and its political subdivisions.
(f) "Just compensation" means, for purposes of an action for taking or damaging property, the remuneration equal to the reduction in fair market value of all or a portion of the affected property resulting from the application or enforcement of the action of a governmental entity, as of the date that the governmental action is in effect.
(g) "Owner" means the holder of fee title to the subject private real property at the time a governmental entity enacts or enforces an action affecting that property and as further defined under Montana statutory and common law. The term does not include a governmental entity.
(h) "Public use" means any of the following:
(i) The possession, occupation, and enjoyment of the land by the general public or by public agencies;
(ii) The use of land for the creation or functioning of public utilities;
(iii) The acquisition of property to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of a structure that is beyond repair or unfit for human habitation or use; or
(iv) The acquisition of abandoned property.
The term "public use" does not include the public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health.
(i) "Taken" and "taking" mean the transfer of ownership or use from a private property owner to this state or a political subdivision of this state or to any person other than this state or a political subdivision of this state.
SECTION 4. Eminent domain may be exercised only if the use of eminent domain is both:
(a) Authorized by this state, whether by statute or otherwise; and
(b) For a public use as defined by this act.
SECTION 5. (1) Except as provided in subsection (3) of this section, if the existing rights to possess, use, modify, develop, sell or otherwise freely transfer property are reduced or limited by any action of a governmental entity and that action results in taking or damaging the property by diminishing its fair market value, the owner of the property is entitled to just compensation from the governmental entity responsible for the action.
(2) Nothing in this section prohibits a governmental entity from reaching an agreement with an owner to waive the owner's claim for diminution in value only if the claim directly results from a governmental action requested by the property owner. A governmental entity that chooses not to take action that would result in taking or damaging private property is not liable for paying compensation under this act.
(3) (a) If the existing rights to use, divide, sell or possess private real property are reduced by the enactment or
applicability of any law enacted or rule promulgated after the date the property is transferred to the owner and such action reduces the fair market value of the property, the owner is entitled to just compensation from the governmental entity that enacted such law or promulgated such rule.
(b) The following actions by a governmental entity are exempt from the requirements of subsection (1):
(i) Actions of a governmental entity that:
1. Were taken before July 1, 2020;
2. Limit or prohibit a use or division of real property if the action is narrowly tailored to protect public health and safety, including rules and regulations relating to fire and building codes, health and sanitation, transportation or traffic control, solid or hazardous waste, and pollution control;
3. Are required by federal law;
4. Limit the location or operation of property for the purpose of housing sex offenders, selling illegal drugs, or selling medical marijuana, or property associated with pornography, obscenity, nude or topless dancing, or other adult-oriented businesses, or actions related to liquor control;
5. Establish locations for utility facilities; or
6. Do not directly regulate an owner's property;
(ii) A governmental entity's formal exercise of eminent domain against only real property;
(iii) A proposed seizure of property by law enforcement officials as evidence or under a state forfeiture statute or a proposed forfeiture of property during or as a result of criminal proceedings; and
(iv) The repeal of an action of a governmental entity if the repeal of the action does not have the effect of burdening property rights.
(4) In any action for just compensation under this act, a determination of whether an action of a governmental entity is exempt under subsection (3) of this section is a judicial question that must be determined without deference to any assertion by the governmental entity that the action is exempt. The governmental entity responsible for the governmental action shall establish by clear and convincing evidence that the action is exempt under subsection (3) of this section.
SECTION 6. (1) (a) A property owner that seeks compensation under this act shall first present the governmental entity that took the action with written notification describing the claim.
(b) To be complete, a claim under this section must include:
(i) The name, address and other contact information of each claimant;
(ii) The address, if any, tax lot number, and township, range and section of the affected property;
(iii) A reference to the governmental action by paragraph, section or any other description so that the action is clearly identified;
(iv) A description of the specific use of the property that the claimant desires to carry out but can not, in whole or in part, because of the governmental action; and
(v) A demand in a specific amount for just compensation.
(c) If a claim is incomplete, the governmental entity shall notify the claimant in writing of the information that is missing within thirty (30) days after the date of receipt of the claim by first-class mail or personal delivery and allow the claimant thirty (30) days to respond and submit the missing information. If the governmental entity does not notify the claimant that information is missing within thirty (30) days after the claim is received, the claim is considered to be complete on the date of receipt. If notice was provided within thirty (30) days, the claim becomes complete when the governmental entity receives:
(i) The missing information;
(ii) Part of the missing information and written notification from the claimant that the remainder of the missing information will not be provided; or
(iii) Written notification from the claimant that none of the missing information will be provided.
(2) If an action of a governmental entity continues to apply to private real property more than ninety (90) days after the owner makes a complete written notification, the owner has a cause of action for just compensation in a court in the county in which the property is located, unless the governmental entity and the owner reach an agreement on the amount of just compensation to be paid, or unless the governmental entity amends, repeals, or issues to the property owner a binding waiver of enforcement of the governmental action. The written demand for just compensation supersedes any other statutory notice or demand requirements.
(3) A governmental entity may not charge any fee for considering whether to waive or grant a variance from a governmental action under Section 5(2) of this act in order to avoid responsibility for paying compensation as provided in this act.
(4) The owner may not be required to submit an application to remove, modify, vary, or otherwise alter the application of the governmental action to the owner's property as a prerequisite to demanding or receiving just compensation under this act.
(5) A claim under this act for compensation or any waiver that is granted in lieu of compensation runs with the land.
(6) Immunity from suit and liability for a governmental entity is waived and abolished to the extent of the liability created by this act.
SECTION 7. An action for just compensation based on diminution in value must be made or forever barred within three (3) years of the effective date of the governmental action, or of the first date the governmental action is applied to the owner's property, whichever is later. A written demand for just compensation made by the owner of the property pursuant to Section 6 of this act is an exhaustion requirement that tolls the three-year time period for ninety (90) days or the length of time that it takes for the governmental entity that is responsible for the governmental action to deny the written demand, whichever is less.
SECTION 8. (1) A court may issue any order necessary to enforce the provisions of this act and to make final determinations to provide any relief available under this act.
(2) (a) A judgment in favor of a property owner or a final decision or order that determines that a taking or damaging has occurred must include the factfinder's determination of the monetary damages suffered by the property owner as a result of the taking or damaging.
(b) An award of compensation must include a reasonable award of prejudgment interest from the date the claim was presented to the governmental entity as provided in Section 6 of this act.
(3) The governmental entity shall pay to the property owner the damages as determined in the judgment or final order not later than thirty (30) days after the date the judgment is rendered or the final decision or order is issued.
(4) As provided by law, a party may appeal a judgment that the action of the governmental entity has or has not resulted in a taking or damaging. An appeal does not automatically stay the proceedings; however, the court may stay the proceedings while the appeal is pending. If the governmental entity is the appellant, the court shall enjoin the entity from invoking the governmental action resulting in the taking or damaging while the appeal is pending.
SECTION 9. (1) A property owner is not liable to any governmental entity for attorney's fees or costs in any action for just compensation based on diminution in value brought pursuant to this act.
(2) If a property owner prevails in an action for just compensation based on diminution of value and the court determines that a settlement offer of the governmental entity did not constitute a bona fide offer to the property owner that reasonably would have resolved the claim, based upon the knowledge available to the governmental entity and the property owner, the property owner may be awarded costs, expenses and reasonable attorney fees from the governmental entity, according to their proportionate shares, as determined by the court. This award may include costs and fees incurred when defending any interlocutory appeal brought by the governmental entity pursuant to this section.
SECTION 10. The provisions of this act are to be liberally construed to effectuate the intent, policies, and purpose of this act to protect private property owners.
SECTION 11. (1) A cause of action created by this act is cumulative to the eminent domain provisions of Titles 17, 19, 29, 31, 37, 43, 49, 57, 69 and 89, Mississippi Code of 1972, and any other remedy provided by the laws and Constitution of the State of Mississippi or the United States.
(2) This act may not be construed as limiting any other laws or remedies protecting private property rights.
(3) In the event of a conflict, the law providing the greatest protection of private property rights must prevail.
SECTION 12. This act does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2020.
SECTION 13. This act applies only to actions by a governmental entity taken on or after the effective date of this act.
SECTION 14. If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
SECTION 15. This act shall take effect and be in force from and after July 1, 2020.
