12-1134

12-1134. Diminution in value; just
compensation

(Caution: 1998 Prop. 105 applies)

A. If the existing rights to use, divide, sell or possess private real property are
reduced by the enactment or applicability of any land use law enacted after the date the
property is transferred to the owner and such action reduces the fair market value of the
property the owner is entitled to just compensation from this state or the political
subdivision of this state that enacted the land use law.

B. This section does not apply to land use laws that:

1. Limit or prohibit a use or division of real property for the protection of the
public's health and safety, including rules and regulations relating to fire and building
codes, health and sanitation, transportation or traffic control, solid or hazardous
waste, and pollution control;

2. Limit or prohibit the use or division of real property commonly and historically
recognized as a public nuisance under common law;

3. Are required by federal law;

4. Limit or prohibit the use or division of a property for the purpose of housing
sex offenders, selling illegal drugs, liquor control, or pornography, obscenity, nude or
topless dancing, and other adult oriented businesses if the land use laws are consistent
with the constitutions of this state and the United States;

5. Establish locations for utility facilities;

6. Do not directly regulate an owner's land; or

7. Were enacted before the effective date of this section.

C. This state or the political subdivision of this state that enacted the land use
law has the burden of demonstrating that the land use law is exempt pursuant to
subsection B.

D. The owner shall not be required to first submit a land use application to
remove, modify, vary or otherwise alter the application of the land use law to the
owner's property as a prerequisite to demanding or receiving just compensation pursuant
to this section.

E. If a land use law continues to apply to private real property more than ninety
days after the owner of the property makes a written demand in a specific amount for just
compensation to this state or the political subdivision of this state that enacted the
land use law, the owner has a cause of action for just compensation in a court in the
county in which the property is located, unless this state or political subdivision of
this state and the owner reach an agreement on the amount of just compensation to be
paid, or unless this state or political subdivision of this state amends, repeals, or
issues to the landowner a binding waiver of enforcement of the land use law on the
owner's specific parcel.

F. Any demand for landowner relief or any waiver that is granted in lieu of
compensation runs with the land.

G. An action for just compensation based on diminution in value must be made or
forever barred within three years of the effective date of the land use law, or of the
first date the reduction of the existing rights to use, divide, sell or possess property
applies to the owner's parcel, whichever is later.

H. The remedy created by this section is in addition to any other remedy that is
provided by the laws and constitution of this state or the United States and is not
intended to modify or replace any other remedy.

I. Nothing in this section prohibits this state or any political subdivision of
this state from reaching an agreement with a private property owner to waive a claim for
diminution in value regarding any proposed action by this state or a political
subdivision of this state or action requested by the property owner.