Landowners’ rights bill goes to Hutchinson; Measure would allow suit if rules hurt property value 

With no fanfare, the Arkansas Senate on Friday sent the governor a bill aimed at protecting private property owners’ rights.

In a 31-2 vote, the Senate concurred with a House-approved amendment to Senate Bill 757 by Senate Republican leader Jim Hendren of Sulphur Springs and voted to send it to Republican Gov. Asa Hutchinson.

Hendren, the governor’s nephew, reminded senators that the Arkansas Municipal League is neutral on his legislation.

The measure gives property owners options to fight government decisions that substantially lower property values.

Under the legislation, a property owner asserting “a taking” would file suit in circuit court claiming the implementation of a state or local governmental regulatory program has permanently reduced the fair market value of his property by at least 20 percent.

Earlier this month, Hendren told lawmakers that most of his legislation is based on a successful law in Texas, and it’s designed to cause “a delay and an appropriate amount of consideration given by state agencies when they impose regulations on private property landowners.”

The lawsuit would have to be filed within 180 days after the property owner knew or should have known that the regulatory program restricted or limited the owner’s private property rights.

A jury would determine whether the owner’s property had lost at least 20 percent of its value because of the government action, Hendren said.

Upon a finding that property has been taken, the state or local governmental entity would have to either compensate the property owner for the reduction in fair market value or “invalidate all or part of the regulatory program.”

The bill wouldn’t apply to someone whose property is not directly subject to a regulatory program. It would also not apply to actions by a state or local government that are reasonably taken to fulfill an obligation mandated by federal or state law.

Government agencies would still be allowed to lawfully seize property if it is evidence of a crime.

The legislation also exempts the regulatory activities of the state Pollution Control and Ecology Commission, Department of Environmental Quality, Livestock and Poultry Commission, the Public Service Commission, and the state Plant Board “under delegated or authorized programs or approved plans under federal law.” Also exempted: an eminent domain proceeding undertaken by a governmental unit under applicable law; a rule, regulation or proclamation adopted to regulate water safety, hunting, fishing or control of non-indigenous or exotic aquatic resources; and laws or rules in the jurisdiction of the state health officer.

Under the bill, if an electric utility acquires land from a private property owner through eminent domain for a transmission line, the utility “shall compensate the private property owner at least three times the market value of the property taken by eminent domain.”

Hendren has said that provision of the bill is in response to the proposed 720-mile, $2 billion transmission line that would cut through a dozen counties in Arkansas.

Clean Line Energy’s planned project would run 3,500 megawatts of wind energy from Oklahoma, through Arkansas, to Tennessee. It has faced opposition from some Arkansans, including landowners living in or near its path.

This is the fifth time Hendren has proposed this type of legislation.

The state House of Representatives passed similar legislation in 1995, 1997 and 1999 when he served there, and the Senate approved a similar bill two years ago, he said.

Two years ago, the legislation failed to clear the House Judiciary Committee.

Earlier this month, Don Zimmerman, executive director for the Arkansas Municipal League, said the league was “neutral” on the legislation because “we compromised with [Hendren].” Texas cities generally haven’t had a problem with a similar law over the years, he said.