October 18, 2005, Introduced by Reps. Palmer, Drolet, Robertson, Gosselin, Casperson, Hoogendyk, Brandenburg, Rocca, Taub, Vander Veen, Amos, Baxter, Stahl and Farhat and referred to the Committee on Government Operations.
A joint resolution proposing an amendment to the state
constitution of 1963, by adding section 7 to article X, to create a
right of compensation for land use regulations.
Resolved by the Senate and House of Representatives of the
state of Michigan, That the following amendment to the state
constitution of 1963, to create a right of compensation for land
use regulations, is proposed, agreed to, and submitted to the
people of the state:
ARTICLE X
Sec. 7. (1) If a public entity enacts or enforces a new land
use regulation or enforces a land use regulation enacted before the
effective date of this section that restricts the use of private
real property or any interest therein and has the effect of
reducing the fair market value of the property, or any interest
therein, then the owner shall be paid compensation.
(2) The amount of compensation under paragraph (1) shall equal
the reduction in the fair market value of the affected property
interest resulting from enactment or enforcement of the land use
regulation as of the date the owner makes written demand for
compensation under this section.
(3) Paragraph (1) does not apply:
(a) To a land use regulation restricting or prohibiting
activities commonly and historically recognized as public nuisances
under common law. This subdivision shall be construed narrowly in
favor of a finding of compensation under this section.
(b) To a land use regulation restricting or prohibiting
activities for the protection of public health and safety, such as
fire and building codes, health and sanitation regulations, solid
or hazardous waste regulations, and pollution control regulations.
(c) To the extent a land use regulation is required to comply
with federal law.
(d) To a land use regulation restricting or prohibiting the
use of a property for a sexually oriented business. This
subdivision does not affect or alter rights provided by this
constitution or the United States Constitution.
(e) To a land use regulation enacted before the date of
acquisition of the property by the owner or by a family member of
the owner who owned the subject property before acquisition or
inheritance by the owner, whichever occurred first.
(4) The owner is entitled to compensation under paragraph (1)
if the land use regulation continues to be enforced against the
property 180 days after the owner makes written demand for
compensation under this section to the public entity enacting or
enforcing the land use regulation.
(5) For claims arising from land use regulations enacted
before the effective date of this section, the owner shall demand
compensation under paragraph (4) within 2 years of the effective
date of this section, or the date the public entity applies the
land use regulation as an approval criterion to an application
submitted by the owner, whichever is later. For claims arising from
land use regulations enacted after the effective date of this
section, written demand for compensation under paragraph (4) shall
be made within 2 years of the enactment of the land use regulation,
or the date the owner submits a land use application for which the
land use regulation is an approval criterion, whichever is later.
(6) If a land use regulation continues be enforced against the
property more than 180 days after the owner makes written demand
for compensation under this section, the owner may bring an action
for compensation under this section in the circuit court in the
county in which the real property is located, and the owner is
entitled to reasonable attorney fees, costs, and other expenses
reasonably incurred to collect the compensation.
(7) A public entity may adopt or apply procedures for the
processing of claims under this section, but such a procedure shall
not be a prerequisite to the filing of an action under paragraph
(6). The failure of an owner to file an application for a land use
permit with the public entity is not grounds for dismissal,
abatement, or delay of an action under paragraph (6).
(8) Notwithstanding any state statute or the availability of
money under paragraph (9), in lieu of payment of compensation under
this section, the governing body responsible for enacting the land
use regulation may amend or repeal the land use regulation or not
apply it to the property so as to allow the owner to use the
property for a use permitted at the time the owner acquired the
property.
(9) Claims made under this section shall be paid from money,
if any, specifically allocated for payment of claims under this
section by the public entity that enacted the land use regulation.
Notwithstanding the availability of such money, a public entity may
use other available money to pay claims. If a claim has not been
paid within 2 years from the date on which it accrues, the owner
may use the property as permitted at the time the owner acquired
the property.
(10) The remedy created by this section is in addition to any
other remedy under this constitution or the United States
Constitution and is not intended to modify or replace any other
remedy.
(11) As used in this section:
(a) "Family member" means the wife, husband, son, daughter,
mother, father, brother, brother-in-law, sister, sister-in-law,
son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt,
uncle, niece, nephew, stepparent, stepchild, grandparent, or
grandchild of the owner, an estate of any of these family members,
or a legal entity owned by 1 or more of these family members or by
the owner or by both.
(b) "Land use regulation" means any of the following:
(i) Any statute, ordinance, or rule regulating the use of land
or any interest in land.
(ii) Comprehensive plans, zoning ordinances, land division
ordinances, and transportation ordinances of a local government or
authority.
(iii) Any statute, ordinance, or rule regulating farming and
forest practices.
(c) "Owner" means the present owner of the property or any
interest therein.
(d) "Public entity" means the state, a city, a village, a
township, a county, or any combination thereof, and includes an
authority established by any of these.
Resolved further, That the foregoing amendment shall be
submitted to the people of the state at the next general election
in the manner provided by law.