Omnibus Property Rights Act 1995

Issue #4

Fall 1995

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section 1 Short title.

“Emergency Property Owners Relief Act of 1995″


section 101 Findings.

section 102 Purpose.


>section 201 Findings.

>section 202 Purposes.

>section 203 Definitions.

* “Property” and “private property” means real property; the right to use and receive water; rents, issues, and profits from land; property rights defined by contract; and any interest understood to be property under common law.

* “Taking” does not include condemnation or criminal forfeiture.

>section 204 Compensation for private property.

* A property owner shall receive compensation if: private property has been physically taken for public use; the rights of the owner are abridged in order to obtain a permit for use of the property; the owner is deprived of all or substantially all of the economic benefit of the land; the affected property is diminished in value by 33%; and any other circumstance considered a taking with the meaning of the Fifth Amendment to the Constitution of the United States.

* The property owner has the burden of proving the diminution of value of property.

* Where required, the government has the burden of proving that:

- its action substantially advances the stated purpose.

- its conditions on granting a permit are roughly proportional to the impact of the proposed use of the property.

- the prohibited use, is a nuisance.

* The government is not required to pay compensation in cases where the property is a nuisance.

* Owners shall be compensated the difference between the fair market value of the affected property before the agency action and its value after the agency action.

* Compensation for a taking shall be paid out of the budget of the agency responsible for the taking.

>section 205 Jurisdiction and judicial review.

Affected property owners can choose to file claims against offending federal agencies in either the United States District Court or United States Court of Federal Claims.

>section 206 Statute of limitations.

A property owner has six years to make a claim against an offending agency.

>section 207 Attorney’s fees and costs.

Attorney’s fees and costs shall be awarded to prevailing plaintiffs.

>section 208 Rules of construction.

Nothing in this title shall infringe upon the authority of state governments to create new property rights.

>section 209 Effective date.

This title shall take effect the day it is signed into law and applies to any agency actions occurring after that date.


>section 301 Alternative dispute resolution.

* Alternative dispute resolution is not mandatory and must be approved by both parties.

* Appeals of arbitration decisions may be made to the District or Claims Courts.

* Arbitration awards are made from the budget of the offending party.


>section 401 Findings and purpose.

>section 402 Definitions.

>section 403
Private property taking impact analysis (TIA).

* Prior to issuing any regulation likely to result in a taking, a federal agency must submit a report of the Office of Management and Budget stating: the specific purpose of the action, the likelihood that the action would provoke a taking of private property, alternatives to the proposed regulation that would ease the impact of the taking, an estimate of the cost of compensating affected property owners. No TIA need be prepared for actions connected with: condemnation proceedings, trust properties and treaty negotiations, criminal forfeiture, planning activity, communications regarding state or local regulation of property, military activity on federal property, immediate threat to health or safety if a TIA is later completed.

* Agencies must submit to OMB annually a list of actions requiring a TIA or resulting in a taking for publication in the Federal Register.

* The TIA is to be made public, and given to owners of affected property. * TIA estimates are presumed inaccurate if completed five years or more before the agency action,

>section 404 Decisional criteria and agency compliance.

* An agency shall not issue rules that require uncompensated takings.

* Agencies must review all existing regulations, re-issuing them if necessary, to reduce takings, and identify and prioritize statutory changes necessary to carry out the purpose of the act within 120 days.

>section 405 Rules of construction.

This bill does not limit any other available remedies, nor act as conclusive determination of property values for appraisal purposes.

>section 406 Statute of limitations.

Suit must be filed within six years after submission of the TIA.


>section 501 Findings and purpose.

>section 502 Definitions.

* “Property” means interests in land and the right to use and receive water. * “Agency action” means action taken under section 404 of the Clean Water Act or Endangered Species Act of 1973.

>section 503 Protection of private property rights.

* Agency head shall minimize impacts on private property. * Agencies shall develop rules to ensure the protection of property rights.

>section 504 Property owners consent for entry.

* Agencies may not enter private property without the consent of the owner, prior notice of a visit, and the sharing of any data collected on the property.

* An agency is not barred from entering property to obtain such permission.

>section 505 Right to review and dispute data collected from private property.

An agency may not use data it has collected unless the property owner has been given access to the data, a description of the manner in which it was collected, and the owner has been allowed to dispute the accuracy of the collected information.

>section 506 Right to an administrative appeal of wetlands decisions.

* Amends Section 404 of the Federal Water Pollution Control Act to create an administrative appeal of regulatory jurisdiction, permit denials, terms and conditions of permits, penalties, and orders to restore wetlands.

* The appeal will be heard by an official other than the official who took the action.

>section 507 Right to administrative appeal under the Endangered Species Act of 1973.

* Amends section 11 of the Endangered Species Act of 1973 to create an administrative appeal on designation of critical habitat, permit denial, terms and conditions of permits, finding of jeopardy, incidental take statements, penalties, and limitations a property use. * The appeal will be heard by an official other than the official who took the action.

>section 508 Compensation for taking of private property.

* A Property owners whose regulated property is devalued by 33% or who is denied the economically viable use of the regulated property are entitled to compensation.

* An owner has 90 days to file a claim after final agency action. * The agency head has 180 days to offer to compensate or purchase the property.

* The property owner has 60 days to accept or reject any offer made.

* The property owner may reject any offer made, and submit to binding arbitration the issues of amount of compensation owed and whether compensation is required.

* Payment shall come from the budget of the agency promulgating the action.

>section 509 Private property owner participation in cooperative agreement.

Amends the Endangered Species Act of 1973 to require the Secretary to inform owners or lessees if their property is subject to an ESA management agreement, and allow them to participate in the management agreement.

>section 510 Election of remedies.

Property owners retain the right to preserve all other remedies.


>section 601 Severability.

>section 602 Effective date.

Takes effect the day it is signed into law.

This document is informational, and is not meant to support or oppose any legislation pending before the Senate.

Nancie G. Marzulla is the president and chief legal counsel of Defenders of Property Rights. For a free copy of Defenders’ “Pocket Guide to Your Private Property Rights,” send a self-addressed, stamped envelope (52 cents, please) to: 6235 33rd Street NW, Washington, DC 20015

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