Creating the private property protection act

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1 SENATE BILL NO. 146
2 INTRODUCED BY B. BEARD
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATED TO PRIVATE PROPERTY RIGHTS;
5 PROVIDING PRIVATE PROPERTY PROTECTIONS; PROVIDING THAT GOVERNMENTAL ACTIONS MAY
6 NOT RESTRICT THE USE OF PRIVATE PROPERTY UNLESS THE ACTION FULFILLS A COMPELLING
7 GOVERNMENTAL INTEREST IN PUBLIC HEALTH OR SAFETY; PROVIDING FOR A CAUSE OF ACTION
8 AND A STATUTE OF LIMITATION; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN
9 APPLICABILITY DATE.”
10
11 WHEREAS, Article II, section 3, of the Montana Constitution provides that all persons are born free with
12 certain inalienable rights, including the right of "acquiring, possessing and protecting property"; and
13 WHEREAS, the Montana Legislature recognizes that government increasingly relies on regulations that
14 consume or otherwise negatively impact the use of private property; and
15 WHEREAS, the Montana Legislature is the proper branch of government to establish policies and
16 principles related to property within the context of the provisions provided in Article II, section 3, of the Montana
17 Constitution.
18
19 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
20
21 NEW SECTION. Section 1. Short title. [Sections 1 through 5 6] may be cited as the "Private
22 Property Protection Act".
23
24 NEW SECTION. Section 2. Findings and intent. (1) The legislature has the highest interest in
25 vindicating and protecting private property rights.
26 (2) The legislature finds that the constitutional right to acquire, possess, and protect property under
27 Article II, section 3, of the Montana constitution also embodies the notion of the fundamental right to use
28 property, including the use of property for financial gain or benefit.
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1 (3) The legislature's intent is to ensure that property use restrictions are limited to those
2 demonstrably necessary and narrowly tailored to fulfill a compelling governmental interest in public health or
3 safety.
4
5 NEW SECTION. Section 3. Definitions. As used in [sections 1 through 5 6], unless the context or
6 subject matter clearly requires otherwise, the following definitions apply:
7 (1) "Compelling governmental interest in public health or safety" means a governmental interest of
8 the highest order in protecting the health and safety of the publicthat cannot be achieved through less restrictive
9 means.
10 (2) "Governmental entity" means any unit of state or local government, including but not limited to
11 a state agency, county, city, town, consolidated city-county, or political subdivision of the state.
12 (3) "Private property" has the same meaning as "real property" as defined in 70-1-106 THAT IS
13OWNED BY A PRIVATE PERSON OR PRIVATE ENTITY.
14 (4) "Property use restriction" means any law, ordinance, resolution, regulation, rule, policy, fee,
15 condition, test, permit, or other administrative action that restricts the use and enjoyment of private property by
16 the property owner OR OTHERS IN LAWFUL POSSESSION.
17
18 NEW SECTION. Section 4. Limitations on property use restrictions -- exceptions. (1) Except as
19 provided in subsection (2), any property use restriction enacted by a governmental entity pursuant to Title 76,
20 chapters 1, 2, 3, or 25, must be limited to those demonstrably necessary and narrowly tailored to fulfill a
21 compelling governmental interest in public health or safety.
22 (2) [Sections 1 through 5 6] do not apply to:
23 (a) actions that prevent or abate nuisances as defined in 27-30-101;
24 (b) the enforcement of the terms of a license, permit, or authorization, including requirements
25 imposed by federal law; or
26 (c) a government enforcement action that is the result of a final, nonappealable judicial
27 determination;
28 (D)ACTIONS BY A TRIBAL GOVERNMENT AS DEFINED IN 2-15-141; OR
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1 (E)A RESTRICTIVE COVENANT ENTERED INTO BETWEEN PRIVATE PARTIES, UNLESS THE IMPLEMENTATION
2OR ADOPTION OF THE RESTRICTIVE COVENANT WAS REQUIRED BY A GOVERNMENTAL ENTITY.
3
4 NEW SECTION. Section 5. Enforcement. (1) An owner of private property that is the subject of a
5 property use restriction in violation of [section 4] may file an action in a court of competent jurisdiction to
6 challenge the property use restriction.
7 (2) The plaintiff shall prevail in an action filed under this section unless the governmental entity
8 demonstrates to the court through clear and convincing evidence that:
9 (a) the property use restriction is demonstrably necessary and narrowly tailored to fulfill a
10 compelling governmental interest in public health or safety;
11 (b) the property use restriction is the least restrictive means to achieve the stated purpose of the
12 restriction; and
13 (c) alternative mechanisms REASONABLE ALTERNATIVES could not achieve the stated interest of the
14 governmental entity.
15 (3) If a plaintiff prevails under subsection (2), the court shall permanently enjoin further
16 enforcement of the property use restriction and shall award reasonable attorney fees and costs.
17 (4) Nothing in this section supersedes or preempts any existing cause of action that a person may
18 have under the Montana or United States constitutions, any statute, or common law.
19
20 NEW SECTION. SECTION 6. STATUTE OF LIMITATION. THE PERIOD PRESCRIBED FOR THE COMMENCEMENT
21OF AN ACTION ALLOWED UNDER [SECTION 5] IS 5 YEARS FROM THE DATE A PERSON BECOMES AWARE OF, OR
22REASONABLY MAY HAVE BECOME AWARE OF, THE CAUSE OF ACTION HAVING ACCRUED.
23
24 NEW SECTION. Section 7. Codification instruction. [Sections 1 through 5 6] are intended to be
25 codified as a new chapter in Title 76, and the provisions of Title 76 apply to [sections 1 through 5 6].
26
27 NEW SECTION. Section 8. Severability. If a part of [this act] is invalid, all valid parts that are
28 severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications,
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1 the part remains in effect in all valid applications that are severable from the invalid applications.
2
3 NEW SECTION. Section 9. Effective date. [This act] is effective on passage and approval.
4
5 NEW SECTION. Section 10. Applicability. [This act] applies to laws, ordinances, resolutions,
6 regulations, rules, policiesf, eesc, onditions, tests, permits, or other administrative actions PROPERTY USE
7RESTRICTIONS enacted or enforced ESTABLISHED on or after [the effective date of this act].
8 - END -