HOUSE DOCKET, NO. 1742 FILED ON: 1/13/2009
HOUSE . . . . . . . . . . . . . . . No. 1665
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The Commonwealth of Massachusetts
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In the Year Two Thousand Nine
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An Act protecting the rights of private property owners..
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Section 1 of Chapter 30A of the General Laws, as appearing in the 2006 Official Edition, is hereby amended in, by inserting at the end thereof the following definitions:—(7) “Policies that have constitution implications” means current or proposed regulations as defined above, law, agency policy statement, directive, or other restriction that, if implemented or enacted could affect a taking of private property without due process of law, such as policies, regulations, orders or agreements that propose or condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. This term does not include actions in which the power of eminent domain is formally exercised, or actions of law enforcement involving seizure of property for forfeiture or as evidence in criminal proceedings.(8) “Private property” means all real property protected by amendments V and XIV of the constitution of the United States, or article X of the constitution of the Commonwealth of Massachusetts.(9) “Taking” means an uncompensated damaging or deprivation of property in violation of the United States constitution or the constitution of the commonwealth.
SECTION 2. Chapter 30A of the General Laws, as so appearing, is hereby amended by inserting after Section 1C the following new section:—Section 1D. The attorney general shall develop a checklist and guidelines by December 31, 2009, to assist agencies in the identification and evaluation of policies that have constitutional implications, including policies that may result in a taking. The attorney general shall review and update the checklist and guidelines at least on an annual basis to maintain consistency with amendments to the laws.
SECTION 3. Section 5 of Chapter 30A of the General Laws, as so appearing, is hereby amended in by inserting after the second paragraph, the following paragraph:—Any agency proposing or implementing policies that have constitutional implications shall designate an official or officials in the agency to be responsible for ensuring compliance with the provisions of this chapter. Each agency policy that has constitutional implications shall be submitted to the designated official or officials for review. Using the checklist and guidelines prepared pursuant to Section 1D, the designated official or officials shall prepare a constitutional impact assessment which includes analysis of at least the following elements: (A) A description of how the policy affects private property including the likelihood that the policy could result in a taking of private property without due process of law; (B) Alternatives to the policy that would fulfill the agency’s legal obligations but that would reduce the impact on the private property owner and the risk of a taking; and (C) An estimate of the financial cost to the commonwealth for compensation, and a source of funding.Prior to the implementation of any policies that have constitutional implications a copy of the constitutional impact assessment shall be provided for review by the Secretary of Administration and Finance and by the Committees on Ways and Means of the Senate and House of Representatives.Any award made to an owner of private from the commonwealth for a taking under this act shall include an award of reasonable costs and attorney’s fees.
SECTION 4.Chapter 30A of the General Laws, as so appearing, is hereby amended by inserting after Section 5, the following new section:—Section 5A. Owners of private property who successfully establish that any such policy having constitutional implications results in an unconstitutional taking shall be awarded reasonable costs and attorney’s fees incurred in establishing their claim. The remedies provided in this chapter shall be in addition to any other remedies provided by law. The effect of policies that have constitutional implications on the fair market value of affected property shall be reflected in the assessed valuation of that real property for taxes, levies and similar purposes.