South Carolina General Assembly
116th Session, 2005-2006

Download This Bill in Microsoft Word format

Indicates Matter Stricken
Indicates New Matter

S. 167

STATUS INFORMATION

General Bill
Sponsors: Senator Elliott
Document Path: l:\council\bills\ggs\22840htc05.doc

Introduced in the Senate on January 11, 2005
Currently residing in the Senate Committee on Judiciary

Summary: Property Rights Bill

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
  12/15/2004  Senate  Prefiled
  12/15/2004  Senate  Referred to Committee on Judiciary
   1/11/2005  Senate  Introduced and read first time SJ-162
   1/11/2005  Senate  Referred to Committee on Judiciary SJ-162
    2/4/2005  Senate  Referred to Subcommittee: Martin (ch), Malloy, Campsen, 
                        Williams

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/15/2004

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 4 TO TITLE 28 SO AS TO REQUIRE ALL STATE, COUNTY, MUNICIPAL, LOCAL, AND OTHER GOVERNMENTAL ENTITIES WHICH ADMINISTER LAND USE REGULATIONS TO ADOPT REGULATIONS AND INTERNAL PROCEDURES FOR APPRAISING PROPERTY AND COMPENSATING A PROPERTY OWNER FOR PROPERTY TAKEN UNDER EMINENT DOMAIN PROCEDURES, AND TO PROVIDE FOR INVERSE CONDEMNATION ACTION BY A PROPERTY OWNER.

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

Property Appraisal Procedures for

Governmental Entities

Section 28-4-10.    (A)    The definitions provided in Section 28-2-30 apply to this chapter, unless the context clearly indicates otherwise. In addition, as used in this chapter:

(1)    'Acquire' means acquisition of an interest in real property or property rights and includes any enactment or enforcement of a regulation that has the effect of limiting or extinguishing any existing rights to use real property by an owner, whether or not the regulation involves the physical appropriation or invasion of real property, and whether or not the regulation transfers the right to use to a governmental entity.

(2)    'Condemn' means the acquisition of an interest in real property by governmental entities through regulation.

(3)    'Governmental entity' means the General Assembly or a board, authority, commission, council, committee, department, office, individual, or agency in the executive branch of government; a political subdivision of the State; or a special purpose district.

(4)    'Interest in real property' means any rights to the use of property which may be limited through regulation by a governmental entity.

(5)    'Investment' as used in the term 'investment backed expectations' must include the giving of value for the acquisition of property; the giving of value to maintain, improve or retain ownership of property; the decision not to sell an interest in real property in the expectation of future use or sale; or the giving of value to develop or improve adjacent property.

(6)    'Nuisance' means the unreasonable, unwarranted, or unlawful use of property, as traditionally recognized in the common law, and is limited to those uses whose prohibition inheres in the title of the property and which use could be enjoined by adjacent land owners or other uniquely affected persons or by the State under its power to abate nuisances that affect the public generally.

(7)(a)    'Regulation' means all land use regulation, rules or emergency rules, statutes, ordinances, dedications, or denials of permits, licenses, authorizations, or other governmental permission if the denial is without cause or if the denial is with cause but is based upon selective enforcement of a statute, regulation, or standard, any of which has the effect of limiting or imposing conditions upon the owner's rights to use or occupy property.

(b)    'Regulation' does not mean:

(i)        the exercise of the power of eminent domain to physically appropriate real property or to effect the physical invasion of real property;

(ii)    the repeal or amendment of a statute, rule, ordinance, requirement, or other action if the repeal or amendment qualifies, lessens, or reverses a limitation or restriction on the use of private property;

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

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

(v)    any regulation which would otherwise be included in this definition, to the extent that it does not affect existing property rights, or clarifies, restates, or otherwise imposes restrictions on property use which were already in effect before the enactment of the regulation. If a regulation imposes new or broader restrictions, to that extent, the regulation is subject to the provisions of this chapter. Exemptions created by this section do not serve to limit or extinguish any rights or causes of action resulting from prior legislation.

(B)    No later than January 1, 2006, all executive governmental entities which administer or issue land use regulations shall adopt regulations and internal procedures for the implementation of the policies contained in this section.

(C)    Before adoption or enforcement of regulations affecting land use, governmental entities shall assess the proposed regulation or proposed manner of enforcing the regulation and prepare a written assessment which states the following findings:

(1)    the specific purpose of the proposed regulation;

(2)    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;

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

(4)    an estimate of the cost to the governmental entity's budget for compensation.

(D)    If there is an immediate threat to health and safety that constitutes an emergency and requires immediate action, the assessment required under this section may be postponed until the action is complete.

(E)    The governmental entity shall deliver copies of this assessment to the Governor, appropriate financial management authority, and the Attorney General.

Section 28-4-20.    (A)    To the extent reasonably possible, governmental entities shall avoid adopting or enforcing regulations in a manner that constitutes a taking of property requiring the payment of just compensation in accordance with the Constitution of this State or of the United States or which would require compensation under the provisions of this chapter.

When the adoption or enforcement of a regulation appears to give rise to a right to compensation under the Constitution of this State or of the United States, under the common law of this State, under the statutes of this State, or under the provisions of this section, the proposed regulation must be treated as an acquisition of an interest in real property under the Eminent Domain Procedure Act and the governmental entity shall proceed to condemn that interest in real property in accordance with the provisions of the Eminent Domain Procedure Act.

A regulation of real property must give rise to a right to compensation when an appraisal or other valuation pursuant to this section or the Eminent Domain Procedure Act indicates a substantial diminution of the total value of the real property resulting from the regulation.

Section 28-4-30.    (A)    For the purposes of this chapter, in appraising property rights which may be acquired through land use regulation and in accordance with the procedures set forth in the Eminent Domain Procedure Act, the following additional factors must be taken into account the:

(1)    economic impact of the regulation on the property owner;

(2)    extent to which the regulation interferes with distinct investment backed expectations;

(3)    character of the regulation;

(4)    present use of the property and of adjacent property;

(5)    probable future use of the property;

(6)    extent to which the use of the property is already limited by other regulations, nuisance laws, and the use of adjacent property;

(7)    extent to which remaining uses of the property are economically viable;

(8)    economic benefit to the property as a result of the proposed regulation; and

(9)    existence of any liens or encumbrances on the property, and the extent to which claims secured by the liens or encumbrances on the property before the regulation exceeds the extent to which the claims are secured by liens or encumbrances on the property subject to the regulation.

(B)    If a property owner paid property taxes based upon a particular valuation or use of the property, that tax payment is not relevant to the valuation of property or an interest in property for the purposes of this chapter. However, if the compensation is awarded based upon an anticipated change in valuation or use, payment of the compensation must be equivalent to a sale or change in use for tax purposes and the property may be subject to tax rollbacks as would otherwise be effective in the event of a sale or change in use.

(C)    If a governmental entity fails to institute condemnation proceedings and the enforcement or enactment of the regulation has the effect of diminishing the value of real property, then the property owner is entitled to bring an inverse condemnation action for damages and is entitled to reimbursements of fees and costs as provided in Section 28-11-30(3). Nothing in this chapter may be construed as limiting the rights of a property owner to seek damages for inverse condemnation or constitutional takings, or to challenge the constitutionality of any regulation."

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

----XX----

This web page was last updated on Friday, December 4, 2009 at 3:27 P.M.