AB521: Bill Text

LRB-2786/6

RPN:jrd:km

1995 - 1996 LEGISLATURE

1995 Assembly BILL 521

August 21, 1995 - Introduced by Representatives Albers, Johnsrud, Green, Seratti, Harsdorf, Freese, Ainsworth, Brancel, Brandemuehl, Goetsch, Gronemus, Grothman, Gunderson, Hahn, Huebsch, Jensen, Kreibich, Lehman, Musser, Porter, Ryba, Skindrud, Walker, Zukowski and Hoven, cosponsored by Senators Drzewiecki, Huelsman, A. Lasee, Schultz and Petak. Referred to Committee on Judiciary.

AB521,1,6 An Act to amend 20.865 (1) (a), 20.865 (1) (g) and 20.865 (1) (q); and to create 20.855 (8), subchapter III of chapter 32 [precedes 32.80], 70.32 (1p), 70.47 (9) (am) and 893.78 of the statutes; relating to: imposing a duty on state agencies and local governmental units to minimize the adverse effect of governmental actions on private property value, creating a cause of action for certain governmental actions affecting private property and making an appropriation.

Analysis by the Legislative Reference Bureau

Under this bill, a state executive agency or a local governmental agency, in taking certain actions that affect the use of private property and reduce the fair market value of private property, must do so in a manner that results in the least amount of reduction in the fair market value of that private property while accomplishing the intended objective of the governmental action. If an action by the state or a local governmental agency results in a reduction in the fair market value of the private property, the bill provides that the owner of the private property may commence an action in response to the governmental action. Under the bill, a governmental agency has several defenses to the lawsuit, including the defense that the governmental action is necessary to prevent a threat to harm health.

Under the bill, if a court determines that a governmental action lowers the fair market value of private property, the court must order the assessor to adjust the property's assessed valuation to reflect the reduced value. If a court determines that the governmental action reduces the fair market value by more than 20%, the bill requires the court to order the governmental agency to pay damages equal to the amount of the reduction in the fair market value of the private property if the plaintiff still owns the property at the time that the judgment is entered. If the plaintiff does not own the property at the time that the judgment is entered, in a case involving a reduction in the fair market value by more than 20%, the bill provides that the court must order the governmental agency to pay damages equal to the amount of the reduction in the fair market value of the private property that was attributable to the governmental action at the time that the plaintiff sold the private property.

The bill permits a court to allow a local unit of government to pay any damages under an action under this bill in up to 5 equal annual instalments, with interest.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB521, s. 1 Section 1. 20.855 (8) of the statutes is created to read:

AB521,2,4 20.855 (8) Judgments. (a) State actions reducing private property value. A sum sufficient to pay for the costs of judgments, orders and settlements of actions, appeals and complaints under s. 32.82 (1) not chargeable under s. 20.865 (1) (a), (g) or (q).

AB521, s. 2 Section 2. 20.865 (1) (a) of the statutes is amended to read:

AB521,2,13 20.865 (1) (a) Judgments and legal expenses. A sum sufficient to pay for legal expenses under ss. 59.31 and 776.43, for costs under ss. 227.485 and 814.245 and for the costs of judgments, orders and settlements of actions, appeals and complaints under subch. II of ch. 111 or subch. II or III of ch. 230, and those judgments, awards, orders and settlements under ss. 21.13, 32.82 (1), 165.25 (6), 775.04 and 895.46 that are not otherwise reimbursable as liability costs under par. (fm). Release of moneys under this paragraph pursuant to any settlement agreement, whether or not incorporated into an order, is subject to approval of by the attorney general.

AB521, s. 3 Section 3. 20.865 (1) (g) of the statutes is amended to read:

AB521,3,7 20.865 (1) (g) Judgments and legal expenses; program revenues. From the appropriate program revenue and program revenue-service accounts, a sum sufficient to pay for legal expenses under ss. 59.31 and 776.43, for costs under ss. 227.485 and 814.245 and for the cost of judgments, orders and settlements of actions, appeals and complaints under subch. II of ch. 111 or subch. II or III of ch. 230, and those judgments, awards, orders and settlements under ss. 21.13, 32.82 (1), 165.25 (6), 775.04 and 895.46 that are not otherwise reimbursable as liability costs under par. (fm). Release of moneys under this paragraph pursuant to any settlement agreement, whether or not incorporated into an order, is subject to approval of the attorney general.

AB521, s. 4 Section 4. 20.865 (1) (q) of the statutes is amended to read:

AB521,3,17 20.865 (1) (q) Judgments and legal expenses; segregated revenues. From the appropriate segregated funds, a sum sufficient to pay for legal expenses under ss. 59.31 and 776.43, for costs under ss. 227.485 and 814.245 and for the cost of judgments, orders and settlements of actions, appeals and complaints under subch. II of ch. 111 or subch. II or III of ch. 230, and those judgments, awards, orders and settlements under ss. 21.13, 32.82 (1), 165.25 (6), 775.04 and 895.46 that are not otherwise reimbursable as liability costs under par. (fm). Release of moneys under this paragraph pursuant to any settlement agreement, whether or not incorporated into an order, is subject to approval of by the attorney general.

AB521, s. 5 Section 5. Subchapter III of chapter 32 [precedes 32.80] of the statutes is created to read:

AB521,3,20 CHAPTER 32

AB521,3,22 SUBCHAPTER III PRIVATE PROPERTY RIGHTS

AB521,3,23 32.80 Definitions. In this subchapter:

AB521,4,3 (1) (a) "Governmental action" means the exercise of any power or duty required or authorized by law, including all of the following actions, whether temporary or permanent:

AB521,4,4 1. Creating a state statute.

AB521,4,5 2. Promulgating an administrative rule.

AB521,4,6 3. Enacting an ordinance.

AB521,4,7 4. Adopting a resolution.

AB521,4,9 5. Entering into a memorandum of understanding or a memorandum of agreement.

AB521,4,10 6. Entering into an intergovernmental cooperation contract.

AB521,4,13 7. Creating a condition on, requirement for or limitation on the use of private property imposed as part of or as a condition of receiving any type of permit, license, authorization, variance or exception.

AB521,4,16 8. Requiring the dedication or exaction by the owner of private property as a part of or as a condition to receiving any type of permit, license, authorization, variance or exception related to the use of the property.

AB521,4,18 (b) Notwithstanding par. (a), "governmental action" does not include any of the following actions:

AB521,4,19 1. The formal exercise of the power of eminent domain.

AB521,4,21 2. A law enforcement agency's seizure of private property for a violation of law or as evidence in a criminal proceeding.

AB521,4,22 3. The forfeiture of private property resulting from the violation of law.

AB521,4,23 4. The regulation of metallic mining under ss. 144.80 to 144.94.

AB521,5,2 (2) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of the political subdivision or special purpose district or a combination or subunit of any of the foregoing.

AB521,5,4 (3) "Private property" means real property that is not owned by the United States, the state or a local governmental unit.

AB521,5,7 (4) "Regulatory taking" means any of the following governmental actions that affect the use of private property and result in a reduction in the fair market value of the private property by more than 20%:

AB521,5,8 (a) One or more governmental actions by the state or a local governmental unit.

AB521,5,11 (b) Governmental action by the state and one or more local governmental units or by 2 or more local governmental units, if each of the governmental actions relate to a common regulatory scheme or purpose.

AB521,5,13 (5) "State agency" means any department, independent agency, board, commission or office in the executive branch of state government.

AB521,5,19 32.81 Effect of governmental actions on private property. A state agency or local governmental unit, in taking any governmental action that affects the use of private property and that reduces the fair market value of private property, shall exercise its authority in a manner that results in the least amount of reduction in the fair market value of private property, while still accomplishing the intended objective of the governmental action.

AB521,5,25 32.82 Liability for governmental actions; cause of action. (1) The owner of private property may commence an action against the state or a local governmental unit if a governmental action of that unit of government affects the use of private property and reduces the fair market value of the private property. This subsection first applies to governmental actions that are final and binding and take effect on the effective date of this subsection .... [revisor inserts date].

AB521,6,2 (2) Any action filed under sub. (1) is not subject to s. 16.007, 775.01, 893.80 or 893.82.

AB521,6,5 (3) The venue for an action under sub. (1) shall be the county where the plaintiff resides or the county where the private property is located, at the option of the plaintiff.

AB521,6,10 (4) (a) In any action under sub. (1) that relates to administrative rules, the joint committee for review of administrative rules shall be served with a copy of the summons and complaint. With the approval of the joint committee on legislative organization, the joint committee for review of administrative rules shall be made a party to the action.