Kansas Statutes

Chapter 77: Statutes; Administrative Rules And Regulations And Procedure

Article 7: Private Property Protection

Statutes:

• 77-701: Short title.
• 77-702: Public policy; purpose of act.
• 77-703: Definitions.
• 77-704: Attorney general to establish guidelines for state agencies to follow.
• 77-705: Same; promulgation of rules and regulations.
• 77-706: Written report prepared by state agency prior to governmental action; guidelines.
• 77-707: State agencies evaluate and review rules and regulations.
• 77-708: Court determination of a taking that effects property valuation.
• 77-709: Attorney fees and expenses.
• 77-710: Construction of act.
• 77-711: Severability.

• 77-701: Short title. On and after January 1, 1996, this act shall be known and may be cited as the private property protection act.

        History:   L. 1995, ch. 170, § 1; July 1.

• 77-702: Public policy; purpose of act. On and after January 1, 1996, it is the public policy of the state of Kansas that state agencies, in planning and carrying out governmental actions, anticipate, be sensitive to and account for the obligations imposed by the fifth and the 14th amendments of the constitution of the United States and section 18 of the bill of rights of the constitution of the state of Kansas. It is the express purpose of this act to reduce the risk of undue or inadvertent burdens on private property rights resulting from certain lawful governmental actions.

        History:   L. 1995, ch. 170, § 2; July 1.

• 77-703: Definitions. On and after January 1, 1996, as used in this act, unless the context requires otherwise:

        (a)   "Take" or "taking" means, due to a governmental action, private property is taken or its use is restricted or limited by a governmental action such that compensation to the owner of the property is required by the fifth or 14th amendment of the constitution of the United States or section 18 of the bill of rights of the constitution of the state of Kansas.

        (b) (1)   "Governmental action" means any of the following actions by a state agency which may constitute a taking:

        (A)   Proposed legislation;

        (B)   proposed rules and regulations or directives; or

        (C)   proposed agency guidelines and procedures concerning the process of issuing licenses or permits;

        (2)   "Governmental action" does not include:

        (A)   Activity in which the power of eminent domain is formally exercised;

        (B)   the repeal of rules and regulations, elimination of governmental programs, or amendment of rules and regulations such that limitations on the use of private property are reduced or removed;

        (C)   law enforcement activities involving seizure or forfeiture of private property for violations of law or as evidence in criminal proceedings; and

        (D)   state agency action, authorized by statute or by valid court order, in response to a violation of state law.

        (c)   "Private property" means any real property or interest arising from or relating to any real property in this state that is protected by the fifth or 14th amendment of the constitution of the United States or section 18 of the bill of rights of the constitution of the state of Kansas.

        (d)   "State agency" means an officer, department, division or unit of the executive branch of the state of Kansas authorized to propose, adopt or enforce rules and regulations. "State agency" shall not include the legislative or judicial branches of the state of Kansas or any political or taxing subdivision of the state of Kansas.

        History:   L. 1995, ch. 170, § 3; July 1.

• 77-704: Attorney general to establish guidelines for state agencies to follow. The attorney general for the state of Kansas shall establish on or before January 1, 1996, and update annually guidelines to assist state agencies in evaluating proposed governmental actions and in determining whether such actions may constitute a taking. These guidelines shall be published in the Kansas register. The guidelines shall be based on current law as articulated by the United States supreme court and the supreme court of Kansas.

        History:   L. 1995, ch. 170, § 4; July 1.

• 77-705: Same; promulgation of rules and regulations. On and after January 1, 1996, the guidelines developed by the attorney general shall be adhered to by state agencies in promulgating rules and regulations pursuant to K.S.A. 77-415 et seq., and amendments thereto.

        History:   L. 1995, ch. 170, § 5; July 1.

• 77-706: Written report prepared by state agency prior to governmental action; guidelines. On and after January 1, 1996: (a) Before any governmental action is initiated, the state agency shall prepare a written report available for public inspection that follows the guidelines established by the attorney general and complies with the following, when applicable:

        (1)   Clearly and specifically identifies the public health, safety or welfare risk created by the use of the private property;

        (2)   describes the manner in which the proposed action will substantially advance the purpose of protecting public health, safety or welfare against the specifically identified risk;

        (3)   sets forth the facts relied upon to establish and justify the need for the restrictions or limitations;

        (4)   analyzes the likelihood that the governmental action may result in a taking;

        (5)   identifies the alternatives, if any, to the proposed governmental action that may:

        (A)   Fulfill the legal obligations of the state agency;

        (B)   reduce the extent of limitation of the use of the private property; and

        (C)   reduce the risk to the state that the action will be deemed a taking; and

        (6)   ensure that any conditions imposed on issuing a permit shall relate directly to the public health, safety or welfare purpose for which the permit is to be issued, shall substantially advance that purpose and shall be authorized by law.

        (b)   If there is an immediate threat to public health, safety or welfare that constitutes an emergency requiring immediate action to eliminate the risk, the report required by this section shall be prepared when the emergency action is completed, in which case the report shall include a complete description of the facts relied upon by the agency in declaring the need for emergency action.

        (c)   If a governmental action involves a permit process or any other procedure that will limit or otherwise prohibit the use of private property pending completion of the process or procedure, the duration of the limitation on or prohibited use of the property shall not extend beyond a reasonable period of time.

        (d)   Before any state agency implements a governmental action for which a report is required under this section, the state agency shall submit a copy of the report to the governor and the attorney general.

        (e)   Each state agency shall submit with the economic impact statement as required by K.S.A. 77-416, and amendments thereto, a copy of the taking assessment as required pursuant to this act.

        History:   L. 1995, ch. 170, § 6; July 1.

• 77-707: State agencies evaluate and review rules and regulations. On or before January 1, 1997, each state agency shall:

        (a)   Review and evaluate all of the agency's existing rules and regulations in accordance with the guidelines issued by the attorney general pursuant to this act; and

        (b)   prepare and submit to the governor and the attorney general a report containing the results of the evaluation.

        History:   L. 1995, ch. 170, § 7; July 1.

• 77-708: Court determination of a taking that effects property valuation. On and after January 1, 1996, if a state district or appellate court or state agency pursuant to this act determines that a governmental action has resulted in a taking, the effect on the valuation for property tax purposes of such property shall be taken into account in determining the value of the property as required pursuant to K.S.A. 79-503a, and amendments thereto.

        History:   L. 1995, ch. 170, § 8; July 1.

• 77-709: Attorney fees and expenses. On and after January 1, 1996, the court may award reasonable attorney fees and expenses to an owner of private property who successfully establishes that a governmental action constitutes a taking of such owner's private property.

        History:   L. 1995, ch. 170, § 9; July 1.

• 77-710: Construction of act. On and after January 1, 1996, nothing in this act shall be construed to limit the scope of judicial review of an agency action, create a new private cause of action or limit any right of action pursuant to other statutes or at common law.

        History:   L. 1995, ch. 170, § 10; July 1.

• 77-711: Severability. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

        History:   L. 1995, ch. 170, § 11; July 1.