North Dakota Code 28-32-09 – Takings assessment
1. An agency or the commission shall prepare a written assessment of the constitutional takings implications of a proposed rule that may limit the use of private real property. The assessment must:
Terms Used In North Dakota Code 28-32-09
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Rule: includes regulation. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- United States: includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
a. Assess the likelihood that the proposed rule may result in a taking or regulatory taking.
b. Clearly and specifically identify the purpose of the proposed rule.
c. Explain why the proposed rule is necessary to substantially advance that purpose and why no alternative action is available that would achieve the agency’s or commission’s goals while reducing the impact on private property owners.
d. Estimate the potential cost to the government if a court determines that the proposed rule constitutes a taking or regulatory taking.
e. Identify the source of payment within the agency’s or commission’s budget for any compensation that may be ordered.
f. Certify that the benefits of the proposed rule exceed the estimated compensation costs.
2. Any private landowner who is or may be affected by a rule that limits the use of the landowner’s private real property may request in writing that the agency or commission reconsider the application or need for the rule. Within thirty days of receiving the request, the agency or commission shall consider the request and shall in writing inform the landowner whether the agency or commission intends to keep the rule in place, modify application of the rule, or repeal the rule.
3. In an analysis of the takings implications of a proposed rule, “taking” means the taking of private real property, as defined in section 47-01-03, by government action which requires compensation to the owner of that property by the fifth or fourteenth amendment to the Constitution of the United States or section 16 of article I of the Constitution of North Dakota. “Regulatory taking” means a taking of real property through the exercise of the police and regulatory powers of the state which reduces the value of the real property by more than fifty percent. However, the exercise of a police or regulatory power does not effect a taking if it substantially advances legitimate state interests, does not deny an owner economically viable use of the owner’s land, or is in accordance with applicable state or federal law.