Bill on rights of landowners clears Senate
Credit: By Michael R. Wickline | Arkansas Online | March 19, 2015 | www.arkansasonline.com ~~
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Legislation aimed at protecting private property owners’ rights zipped through the Arkansas Senate on Wednesday.
In a 23-7 vote, the lawmakers sent Senate Bill 757 by Senate Republican leader Jim Hendren of Sulphur Springs to the state House of Representatives. It’s now in the House City, County and Local Affairs Committee.
“This is a bill that is really intended to be a speed bump as governmental agencies impose regulations on private property owners,” Hendren told senators.
“Unlike 26 other states, we have no statutory way for people to assert their constitutional rights and be compensated when government agencies do unjustly … take their property for regulatory use,” he said.
Hendren said most of his legislation is based on a successful law in Texas and designed to cause “a delay and an appropriate amount of consideration given by state agencies when they impose regulations on private property landowners.”
Under the legislation, a property owner asserting “a taking” would file suit in circuit court claiming the implementation of a state or local governmental regulatory program has permanently reduced the fair market value of his property by at least 20 percent.
The lawsuit would have to be filed within 180 days after the property owner knew or should have known that the regulatory program restricted or limited the owner’s right in private property.
A jury would determine whether the owner’s property has lost at least 20 percent of its value because of the government’s action, Hendren said.
Upon a finding that property has been taken, the state or local governmental entity would have to either compensate the property owner or “invalidate all or part of the regulatory program” under the legislation.
Afterward, Sen. Eddie Joe Williams, R-Cabot, said he voted against the bill because he “was honoring my mayor’s wishes.”
He said he doubts the bill would cost local governments a lot of money.
“I had some mixed feelings about it, but my mayor [Bill Cypert] thought it would, and he asked me to vote against it,” said Williams, a former mayor of Cabot.
Hendren told senators that the legislation includes language from the Texas law suggested by the Arkansas Municipal League to make it clear state agencies, cities and counties “still have a right to implement regulations that they have to do for the public good. …”
Afterward, Don Zimmerman of the Arkansas Municipal League said the league was “neutral” on the legislation because “we compromised with [Hendren].”
Zimmerman said Texas cities generally haven’t had a problem with the law over the years.
The Association of Arkansas Counties also has a “neutral” stand on the legislation, said association executive director Chris Villines.
Hendren said his bill would exempt actions reasonably taken to fulfill mandates by the state or federal government, actions taken out of “a reasonable good faith belief” that they are needed to prevent an immediate threat to the life and property, as well as those taken under governmental police powers.
Government agencies would also be allowed to lawfully seize property if it is evidence of a crime.
The legislation also exempts the regulatory activities of the state Pollution Control and Ecology Commission, Department of Environmental Quality, Livestock and Poultry Commission and state Plant Board under authorized programs or approved plans under federal law; an eminent domain proceeding undertaken by a governmental unit under state law; a rule, regulation or proclamation adopted to regulate water safety, hunting, fishing or control of nonindigenous or exotic aquatic resources; and laws or rules in the jurisdiction of the state health officer.
“Some people have concern about all these exceptions,” Hendren told senators.
“These exceptions don’t say you have no cause of action. All they say is you have no cause of action under his statute. … This bill does nothing to change the constitutional protection [for private property],” he said.
State Sen. Linda Collins-Smith, R-Pocatontas, told Hendren that “this bill in no way allows any government or any entity to take more land away from us.”
Under the bill, if an electric utility acquires land from a private property owner through eminent domain for a transmission line, the utility “shall compensate the private property owner at least three times the market value of the property taken by eminent domain.”
Hendren said this part of the bill “is fair and just.”
He said it’s in response to the proposed 720-mile, $2 billion transmission line that would cut through a dozen counties in Arkansas. Clean Line Energy’s planned project would run 3,500 megawatts of wind energy from Oklahoma, through Arkansas, to Memphis. It has faced opposition from some Arkansans, including landowners living in or near its path.
Hendren told senators that this is the fifth time that he’s proposed this type of private property rights legislation.
He said the state House of Representatives passed similar legislation in 1995, 1997 and 1999 when he served there, and the Senate approved a similar bill two years ago. Two years ago, the legislation failed to clear the House Judiciary Committee.
“Unfortunately, I’ve never had been lucky enough to [get it through] both houses at the same time, but I think this is the time,” said Hendren, who is a nephew of Republican Gov. Asa Hutchinson.
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