South Carolina General Assembly
114th Session, 2001-2002

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Bill 528


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      528
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  20010329
Primary Sponsor:                  McConnell
All Sponsors:                     McConnell, Branton, Grooms, McGill, Ford 
                                  and Giese
Drafted Document Number:          l:\s-jud\bills\mcconnell\jud0067.gfm.doc
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Private Property Rights Protection Act, 
                                  Eminent domain, Courts, Administrative Law 
                                  Judges Division, Taxation


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  20010329  Introduced, read first time,           11 SJ
                  referred to Committee


              Versions of This Bill

View additional legislative information at the LPITS web site.


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

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"; TO AMEND SECTION 1-23-570, RELATING TO THE PROVISIONS OF LAW MAKING THE CHIEF JUDGE OF THE SOUTH CAROLINA ADMINISTRATIVE LAW JUDGE DIVISION RESPONSIBLE FOR THE ADMINISTRATION OF THAT DIVISION, SO AS TO PROVIDE THAT WHEN MAKING ASSIGNMENTS, THE CHIEF JUDGE MUST ASSIGN ONE JUDGE OF THE DIVISION TO HEAR CASES IN WHICH A PETITIONER SEEKS A VARIANCE FROM A STATE LAW OR REGULATION DIRECTLY AFFECTING THE USE OF LAND.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. This act may be referred to and cited as the 'South Carolina Private Property Rights Protection Act'.

SECTION 2. Section 1-23-570 of the 1976 Code is amended to read:

"Section 1-23-570. The Chief Judge of the Administrative Law Judge Division is responsible for the administration of the division, including budgetary matters, assignment of cases, and the administrative duties and responsibilities of the support staff. The chief judge must assign judges of the division to hear all cases of the various state departments and commissions for which it is responsible on a general rotation and interchange basis by scheduling and assigning administrative law judges based upon subject matter no less frequently than every six months. When making assignments, the chief judge must also assign one judge of the division to hear cases in which a petitioner files a claim for relief pursuant to the provisions of Title 28, chapter 4 of the Code, the South Carolina Private Property Rights Protection Act."

SECTION 3. 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' or 'chapter', unless the context clearly indicates otherwise, mean the 'South Carolina Private Property Rights Protection Act'.

Section 28-4-20. The General Assembly finds that:

(A) Some laws, regulations, and ordinances of the State and political subdivisions of the State, as applied, may, intentionally or not, unreasonably burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution.

(B) There is an important state interest in protecting the interests of private property owners from unreasonable restrictions on the use of their property.

(C) Existing laws and procedures for challenging governmental actions which restrict or limit the use of private real property are expensive and time consuming to the extent that practical relief is not available to many owners of private real property.

(D) There exists a need to provide for an inexpensive and expedited procedure to all owners of private real property to challenge the reasonableness of governmental restrictions on their real property while preserving the important and legitimate exercise of governmental regulatory and land use programs.

Section 28-4-30. The General Assembly declares that the basic state policies to be followed in the implementation of this chapter are:

(A) To recognize that, in certain specific applications, governmental action affecting the use of private real property can result in inverse condemnation of private real property through an unintended regulatory taking.

(B) To recognize that, in certain specific applications, governmental action affecting the use of private real property can result in the imposition of unnecessary hardships on the owners of private real property which, while not rising to the level of a constitutional taking, under principles of fairness and equity the granting of some relief to the owner of the real property is warranted.

(C) To provide a method by which the owner of private real property can seek review of the governmental action in an expedited proceeding and by which the governmental entity can be empowered to fashion equitable remedies while preserving the integrity of the regulatory program involved.

Section 28-4-40. (A) When a specific action of a governmental entity has the effect of a constitutional taking of real property or has resulted in an unnecessary hardship on the use of real property, the property owner of that real property is entitled to relief under this chapter, which relief may include, but does not necessarily require, compensation for the actual loss of 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) 'Administrative Law Judge' means the administrative law judge assigned by the chief judge to hear petitions for variance from a state law or regulation directly affecting the use of land, as provided in Section 1-23-570.

(2) 'Division' means the Administrative Law Judge Division.

(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, 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, 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, unless such exercise is discretionary or exceeds the federal mandate.

(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 term 'property owner' means the person who holds legal title to the real property at issue. The term does not include a governmental entity.

(6) 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 has a relevant interest.

(7) The terms 'taking' or 'constitutional taking' mean a governmental action that affects private real property, in whole or in part, temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth Amendment or the Fourteenth Amendment to the United States Constitution, or both, Article 1, Section 13 of the South Carolina Constitution.

(8) The term 'unnecessary hardships' means that a particular real property suffers a singular disadvantage by operation of a governmental action so that application of the government statute, regulation, ordinance, or other action results in a restriction more burdensome than intended or the application of the governmental action to the real property effectively prohibits or unreasonably restricts the utilization of the property.

(C) Nothing in this chapter shall be considered 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 28-4-50. (A) Not less than one hundred eighty days prior to filing an action under this chapter against a governmental entity, a property owner who seeks relief must present a claim therefor in writing to the governmental entity. The property owner may submit along with the claim an appraisal that supports the claim and demonstrates the loss of 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 must present the claim as provided in this section to each of the so identified governmental entities.

(B) The governmental entity or entities must 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 or entities must make a written settlement offer to the private real property owner, separately or jointly, 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 the 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.

(12) payment of just compensation for the loss of value due to the unnecessary hardship.

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 governmental entity must ensure the relief granted protects the public interest served by the regulations at issue and is the appropriate relief necessary to prevent the governmental action from taking or imposing an unnecessary hardship on the real property.

(2) Whenever a governmental entity enters into a settlement agreement under this action 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 must jointly file an action in the circuit court, at the expense of the governmental entity, 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 resulting in a taking or the imposition of an unnecessary hardship on the real property.

Section 28-4-60. (A) During the one hundred eighty-day-notice period provided for in Section 28-4-50, unless a settlement offer is accepted by the property owner, each of the governmental entities provided notice pursuant to Section 28-4-50(A) must 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 is considered to ripen the prior action of the governmental entity and operates 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 is considered ripe or final for the purposes of judicial proceeding authorized by this chapter, 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 relief with the division, 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. The procedural rules and regulations of the division must thereafter govern the claim for relief.

Section 28-4-70. (A) The Administrative Law Judge must determine whether the governmental action has resulted in a taking or the imposition of unnecessary hardship on 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 resulted in the taking or imposition of the unnecessary hardships on the real property of the property owner, the court must determine the percentage of responsibility of each governmental entity bears with respect thereto. A governmental entity may take an interlocutory appeal to the circuit court in the county in which the property is located on the division's determination that the action of the governmental entity has resulted in a taking or imposition of an unnecessary hardship. 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 must award to the prevailing property owner, in addition to any award for loss of value, the costs and reasonable attorney fees incurred by the property owner in the interlocutory appeal.

(B) Following its determination of the percentage of responsibility of each governmental entity (if more than one), and following the resolution of any interlocutory appeal,

(1) in the case of a taking, the court must impanel a jury to determine the total amount of compensation to the property owner for the loss in value due to the taking of the real property; or

(2) in the case of an unnecessary hardship, the court must determine which of the alternative remedies set forth in Section 28-4-50(C) most fairly provides relief to the property owner, considering the totality of the circumstances surrounding the application of the governmental action to the real property, and only when none of the remedies, either singularly or in combination, afford an equitable remedy, or at the specific election of the governmental entity, may compensation be determined to be the appropriate remedy. Where compensation is determined to be the remedy for the unnecessary hardship, the award of compensation must be determined by a jury impaneled by the court for this purpose.

(C)(1) In all cases where a jury is impaneled to determine compensation, the amount to be awarded is to be computed by calculating the difference in the fair market value of the real property as it existed immediately prior to the governmental action at issue, and the fair market value of the real property as restricted to limited by the governmental action. In making this calculation, the jury must consider the settlement offer or ripeness decision, or both, of the governmental entity or entities.

(2) In determining an award of monetary 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 must include a reasonable award of prejudgment interest from the date the claim was presented to the governmental entity or entities.

Section 28-4-80. (A) In any action filed pursuant to this chapter, the property owner is entitled to recover reasonable costs and attorney fees incurred by the property owners, 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 (1) the property owners prevails in the action and (2) 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.

(B) 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 any subsequent proceeding established by this section and may only be used for the purposes of the determination pursuant to this subsection.

Section 28-4-90. The division and the circuit court may enter any orders necessary to effectuate the purposes of this chapter and to make final determinations to effectuate relief available under this chapter.

Section 28-4-100. An award or payment of compensation pursuant to this chapter 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 must determine the form and the recipient of the right, title, and interest, as well as the terms of their acquisition.

Section 28-4-110. This chapter does not supplant methods agreed to by the parties and lawfully available for arbitration, mediation, or other forms of alternative dispute resolution which may be available by agreement of the parties, and governmental entities are encouraged to utilize these methods to augment or facilitate the processes and actions contemplated by this chapter.

Section 28-4-120. The provisions of this chapter 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 any action of a governmental entity applicable to, or for the loss in value to, a subject real property more than once for the same action.

Section 28-4-130. This chapter does not apply to any actions taken by a governmental entity which relate to the operation, maintenance, or expansion of transportation facilities, and this chapter does not affect existing law regarding eminent domain.

Section 28-4-140. A cause of action may not be commenced under this chapter 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 in a manner giving rise to the alleged taking or unreasonable hardship. If an owner seeks relief from the governmental action through other lawfully available administrative or judicial proceedings, the time for bringing an action under this chapter is tolled until the conclusion of those proceedings.

Section 28-4-150. This chapter does not affect the sovereign immunity of government to the extent that sovereign immunity of government exists in this State."

SECTION 4. This act takes effect upon approval by the Governor.

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