1.1                          A bill for an act 
  1.2             relating to property rights; providing for the 
  1.3             protection of private property rights from state 
  1.4             agency actions; requiring the attorney general to 
  1.5             develop guidelines to assist state agencies in 
  1.6             evaluating proposed actions to determine whether they 
  1.7             may constitute a taking; requiring state agencies to 
  1.8             follow the guidelines and prepare reports; requiring 
  1.9             consideration of the effects of a taking for property 
  1.10            tax valuation purposes when determining the value of 
  1.11            the property; proposing coding for new law in 
  1.12            Minnesota Statutes, chapter 15. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  [15.48] [PRIVATE PROPERTY PROTECTION; DUTY OF 
  1.15  STATE.] 
  1.16     The state of Minnesota and state agencies, in planning and 
  1.17  carrying out governmental actions, must recognize and abide by 
  1.18  the obligations imposed by the fifth and the 14th amendments of 
  1.19  the Constitution of the United States and section 13 of the bill 
  1.20  of rights of the Constitution of the state of Minnesota.  
  1.21  Adherence to these obligations by the state will reduce the risk 
  1.22  of undue or inadvertent burdens on private property rights 
  1.23  resulting from certain lawful governmental actions.  
  1.24     Sec. 2.  [15.481] [PRIVATE PROPERTY PROTECTION; 
  1.25  DEFINITIONS.] 
  1.26     Subdivision 1.  [SCOPE.] The definitions in this section 
  1.27  apply to sections 15.48 to 15.484.  
  1.28     Subd. 2.  [GOVERNMENTAL ACTION.] (a) "Governmental action" 
  1.29  means any of the following actions by a state agency that may 
  2.1   constitute a taking: 
  2.2      (1) proposed legislation; 
  2.3      (2) proposed rules or directives; or 
  2.4      (3) proposed agency guidelines and procedures concerning 
  2.5   the process of issuing licenses or permits. 
  2.6      (b) Governmental action does not include: 
  2.7      (1) activity in which the power of eminent domain is 
  2.8   formally exercised; 
  2.9      (2) a repeal of rules, elimination of governmental 
  2.10  programs, or amendment of rules that results in a reduction or 
  2.11  removal of limitations on the use of private property; 
  2.12     (3) law enforcement activities involving seizure or 
  2.13  forfeiture of private property for violations of law or as 
  2.14  evidence in criminal proceedings; or 
  2.15     (4) state agency action, authorized by statute or by valid 
  2.16  court order, in response to a violation of law.  
  2.17     Subd. 3.  [PRIVATE PROPERTY.] "Private property" means real 
  2.18  property or an interest arising from or relating to real 
  2.19  property in this state. 
  2.20     Subd. 4.  [PUBLIC NUISANCE.] "Public nuisance" means a 
  2.21  public nuisance as defined under section 609.74, common law, or 
  2.22  a statute or rule codifying common law.  
  2.23     Subd. 5.  [TAKE OR TAKING.] "Take" or "taking" means that 
  2.24  private property is taken or its use is restricted or limited by 
  2.25  a governmental action so that compensation to the owner of the 
  2.26  property is required by the fifth or 14th amendment of the 
  2.27  Constitution of the United States or section 13 of the bill of 
  2.28  rights of the Constitution of the state of Minnesota.  
  2.29     Sec. 3.  [15.482] [ATTORNEY GENERAL GUIDELINES; STATE 
  2.30  AGENCY COMPLIANCE AND REPORTS.] 
  2.31     Subdivision 1.  [ATTORNEY GENERAL TO ESTABLISH GUIDELINES.] 
  2.32  By June 30, 2002, the attorney general shall establish and 
  2.33  update annually guidelines to assist state agencies in 
  2.34  evaluating proposed governmental actions and in determining 
  2.35  whether the actions may constitute a taking.  The guidelines 
  2.36  must be published in the State Register.  The guidelines must be 
  3.1   based on current law as articulated by the United States Supreme 
  3.2   Court and the Minnesota supreme court.  
  3.3      Subd. 2.  [STATE AGENCIES TO FOLLOW GUIDELINES IN ADOPTING 
  3.4   RULES.] When a state agency adopts rules, the state agency shall 
  3.5   follow the guidelines developed by the attorney general under 
  3.6   subdivision 1. 
  3.7      Subd. 3.  [WRITTEN REPORT REGARDING EFFECT OF PROPOSED 
  3.8   GOVERNMENTAL ACTION.] (a) Before a governmental action is 
  3.9   initiated, a state agency shall prepare a written report 
  3.10  available for public inspection that follows the guidelines 
  3.11  established by the attorney general and complies with the 
  3.12  following, to the extent applicable:  
  3.13     (1) clearly and specifically identifies a public nuisance 
  3.14  or a risk to public health or safety created by the use of 
  3.15  private property that may be affected by the action; 
  3.16     (2) describes the manner in which the proposed action will 
  3.17  substantially advance the purpose of preventing a public 
  3.18  nuisance or protecting public health or safety from the 
  3.19  specifically identified risk; 
  3.20     (3) sets forth the facts relied upon to establish and 
  3.21  justify the need for the restrictions or limitations; 
  3.22     (4) analyzes the likelihood that the governmental action 
  3.23  may result in a taking; 
  3.24     (5) identifies the alternatives, if any, to the proposed 
  3.25  governmental action that may: 
  3.26     (i) fulfill the legal obligations of the state agency; 
  3.27     (ii) reduce the extent of limitation of the use of the 
  3.28  private property; and 
  3.29     (iii) reduce the risk to the state that the action will be 
  3.30  deemed a taking; and 
  3.31     (6) ensures that any conditions imposed on issuing a permit 
  3.32  relate directly to the public purpose for which the permit is to 
  3.33  be issued, substantially advance that purpose, and are 
  3.34  authorized by law.  
  3.35     (b) If there is an immediate threat to public health or 
  3.36  safety or a public nuisance that constitutes an emergency 
  4.1   requiring immediate action to eliminate the risk, the report 
  4.2   required by this section may be prepared when the emergency 
  4.3   action is completed, in which case the report must include a 
  4.4   complete description of the facts relied upon by the agency in 
  4.5   declaring the need for emergency action. 
  4.6      (c) If a governmental action involves a permit process or 
  4.7   any other procedure that will limit or otherwise prohibit the 
  4.8   use of private property pending completion of the process or 
  4.9   procedure, the duration of the limitation on or prohibited use 
  4.10  of the property pending completion of the process or procedure 
  4.11  may not extend beyond 60 days.  This time limit may be extended 
  4.12  under the circumstances described in section 15.99, subdivision 
  4.13  3.  
  4.14     (d) Before any state agency implements a governmental 
  4.15  action for which a report is required under this section, the 
  4.16  state agency must submit a copy of the report to the governor 
  4.17  and the attorney general.  
  4.18     Sec. 4.  [15.483] [COURT DETERMINATION OF TAKING.] 
  4.19     Subdivision 1.  [PROPERTY VALUATION.] If a court or state 
  4.20  agency acting under section 15.482 determines that a 
  4.21  governmental action has resulted in a taking, the effect on the 
  4.22  valuation of the property for property tax purposes must be 
  4.23  taken into account in determining the value of the property.  
  4.24     Subd. 2.  [ATTORNEY FEES AND EXPENSES.] A court may award 
  4.25  reasonable attorney fees and expenses to an owner of private 
  4.26  property who successfully establishes that a governmental action 
  4.27  constitutes a taking of the owner's private property.  
  4.28     Sec. 5.  [15.484] [CONSTRUCTION.] 
  4.29     Subdivision 1.  [RELATION TO OTHER LAW.] Nothing in 
  4.30  sections 15.48 to 15.484 limits the scope of judicial review of 
  4.31  an agency action, creates a new private cause of action, or 
  4.32  limits any right of action under other law.  
  4.33     Subd. 2.  [EXCEPTION.] Sections 15.48 to 15.484 do not 
  4.34  apply to an exercise of police power to prevent uses noxious in 
  4.35  fact or posing demonstrable harm to the health and safety of the 
  4.36  public.  A use is a noxious use if, and only if, it amounts to a 
  5.1   public nuisance in fact.  Determination by a state agency that a 
  5.2   use is a noxious use or poses a demonstrable harm to public 
  5.3   health and safety is binding upon a court.  
  5.4      Sec. 6.  [EFFECTIVE DATE.] 
  5.5      This act is effective July 1, 2002, except that section 3, 
  5.6   subdivision 1, is effective July 1, 2001.