SUBJECT: UNIVERSITY OF NORTH TEXAS TAKINGS IMPACT ASSESSMENT POLICY
APPLICABILITY: TOTAL UNIVERSITY
Pursuant to the Private Real Property Rights Preservation Act
("Act") which is set forth in Chapter 2007 of the Texas
Government Code and the accompanying Guidelines issued by the Office of
the Attorney General, the University of North Texas has promulgated
specific procedures to be followed in making a Takings Impact Assessment
and in determining which of its activities, programs, policies, rules or
regulations trigger the need for a Takings Impact Assessment. Taking
Impact Assessments will be used to ensure that the private real property
implications of actions are considered before decisions are made and
actions are taken by the University of North Texas.
Section One. DEFINITIONS
In the application of this policy, the following definitions shall
apply:
1. "Owner" means a person with legal or equitable title to
affected private real property at the time a taking occurs.
2. "Market value" means the price a willing buyer would pay a
willing seller after considering all factors in the marketplace that
influence the price of private real property.
3. "Private real property" means an interest in real property
recognized by common law, including a groundwater or surface water right
of any kind, that is not owned by the federal government, the State of
Texas, or a political subdivision of the State of Texas.
4. "Taking" means:
(A) an action on the part of the University of North Texas that
affects private real property, in whole or in part or temporarily or
permanently, in a manner that requires the governmental entity to
compensate the private real property owner as provided by the Fifth and
Fourteenth Amendments to the United States Constitution or Section 17 or
19, Article I, Texas Constitution; or
(B) an action on the part of the University of North Texas that:
(i) affects an owner's private real property that is the subject of
the governmental action, in whole or in part or temporarily or
permanently, in a manner that restricts or limits the owner's right to
the property that would otherwise exist in the absence of the action
on the part of the University of North Texas; and
(ii) is the producing cause of a reduction of at least 25 percent
in the market value of the affected private real property, determined
by comparing the market value of the property as if the action on the
part of the University of North Texas is not in effect and the
market value of the property determined as if the action is in effect.
Section Two. APPLICABILITY
A. This policy shall apply to the following types of actions on the
part of the University of North Texas:
(1) the adoption or issuance of an ordinance, rule, regulatory
requirement, resolution, policy, guideline, or similar measure; or
(2) an action that imposes a physical invasion or requires a
dedication or exaction of private real property.
(3) enforcement of an action listed in (1) or (2) whether
enforcement is accomplished through the judicial or quasi-judicial
proceedings or other similar actions.
B. This policy shall not apply to the following types of actions on the
part of the University of North Texas:
(1) a lawful forfeiture or seizure of contraband as defined by
Article 59.01, Code of Criminal Procedure;
(2) a lawful seizure of property as evidence of a crime or violation
of law;
(3) an action that is reasonably taken to fulfill an obligation
mandated by federal law or an action that is reasonably taken to fulfill
an obligation mandated by state law;
(4) the discontinuance or modification of a program or regulation
that provides a unilateral expectation that does not rise to the level of
a recognized interest in private real property;
(5) an action taken to prohibit or restrict a condition or use of
private real property if it can be proven that the condition or use
constitutes a public or private nuisance as defined by background
principles of nuisance and property law of this state;
(6) an action taken out of a reasonable good faith belief that the
action is necessary to prevent a grave and immediate threat to life or
property;
(7) a formal exercise of the power of eminent domain;
(8) an action taken under a state mandate to prevent waste of oil and
gas, protect correlative rights or owners of interests in oil or gas, or
prevent pollution related to oil and gas activities;
(9) a rule or proclamation adopted for the purpose of regulating
water safety, hunting, fishing, or control of nonindigenous or exotic
aquatic resources;
(10) the appraisal of property for purposes of ad valorem taxation;
(11) an action that:
(a) is taken in response to a real and substantial threat to public
health and safety;
(b) is designed to significantly advance the health and safety
purpose; and
(c) does not impose a greater burden than is necessary to achieve
the health and safety purpose.
C. This Policy does not apply to the enforcement or implementation of
Subchapter B, Chapter 61, Natural Resources Code, as it existed on
September 1, 1995, or to the enforcement or implementation of any rule or
similar measure that was adopted under that subchapter and was in
existence on September 1, 1995.
Section Three. REVIEW PROCEDURES
A. In considering whether to take an action that is covered by this
Policy, the University of North Texas shall develop a written Takings
Impact Assessment of the proposed action. The Takings Impact Assessment
shall be conducted in the following manner:
(1) When an employee believes that a proposed action on the part of
the University of North Texas may come within the provisions of this
Policy, the employee shall notify the Office of the Vice President for
Finance and Business Affairs.
(2) The Vice President for Finance and Business Affairs shall meet
with the Vice Chancellor and General Counsel to consider the proposed
action. This meeting may include other parties as determined to be
necessary.
(3) At the meeting of the Vice President for Finance and Business
Affairs, the Vice Chancellor and General Counsel, and others as may be
necessary, the following questions shall be answered:
(a) Is the proposed action to be undertaken an action that is
covered by this Policy? If the answer is "No": No
further compliance with this Policy is necessary. If the answer
is "Yes": the following question should be answered.
(b) Does the proposed action result in a burden on "Private
Real Property"? If the answer is "No": A "No
Private Real Property Impact" or No PRPI Determination
should be made. No further compliance with this Policy is
necessary. If the answer is "Yes": A Takings Impact
Assessment is required.
B. The Takings Impact Assessment must be in writing and must include
the following information:
(1) A description of the specific purpose of the proposed action;
(2) An identification of the following:
(a) whether and how the proposed action substantially advances its
stated purpose; and
(b) the burdens imposed on private real property and the benefits
to society resulting from the proposed use of private real property;
(3) A determination as to whether engaging in the
proposed action will constitute a taking as defined by this Policy; in
making a determination as to whether the proposed action will result in
a "taking", the following questions must be answered:
(a) Does the Proposed Action Result Indirectly or Directly in a
Permanent or Temporary Physical Occupation of Private Real
Property? Regulation or action resulting in a permanent or
temporary physical occupation of all or portion of private real
property will generally constitute a "taking."
(b) Does the Proposed Action Require a Property Owner to Dedicate a
Portion of Private Real Property or to Grant an Easement?
Carefully review all actions requiring the dedication of property or
grant of an easement. The dedication of real property must be
reasonably and specifically designed to prevent or compensate for
adverse impacts of the proposed development. Likewise, the magnitude
of the burden placed on the proposed development should be reasonably
related to the adverse impacts created by the development.
(c) Does the Proposed Action Deprive the Owner of all Economically
Viable Uses of the Property? If an action prohibits or somehow
denies all economically viable or beneficial uses of the land, it will
likely constitute a "taking." The action's impact on
the property as a whole, and not just the impact on a portion of the
property, should be considered. It is also important to assess whether
there is any profitable use of the remaining property available. The
remaining use does not necessarily have to be the owner's planned use,
a prior use, or the highest and best use of the property. One factor
in this assessment is the degree to which the action interferes with a
property owner's reasonable investment-backed development
expectations.
(d) Does the Proposed Action have a Significant Impact on the
Landowner's Economic Interest?
(e) Does the Proposed Action Decrease the Market Value of the
Affected Private Real Property by 25% or More? Is the Affected Private
Real Property the subject of the Covered Governmental Action?
(f) Does the Proposed Action Deny a Fundamental Attribute of
Ownership? Governmental actions that deny the land owner a
fundamental attribute of ownership--including the right to possess,
exclude others and dispose of all or a portion of the property--are
potential takings.
(g) Does the Proposed Action Serve the Same Purpose that Would be
Served by Directly Prohibiting the Use or Action; and Does the
Condition Imposed Substantially Advance that Purpose?
(4) A description of alternative actions that could accomplish the
specified purpose of the proposed action;
(5) A comparison, evaluation, and explanation regarding:
(a) how an alternative action would further the specified purpose;
and
(b) whether an alternative action would constitute a taking.
C. A Takings Impact Assessment prepared under this Policy shall be
considered public information.
Section Four. PUBLIC NOTICE
A. If it is determined through the Takings Impact Assessment process
that an action may result in a taking, then the University shall:
(1) Give at least 30 days' notice of its intention to take action
prior to taking the proposed action.
(2) Such notice shall be given by filing a reasonably specific
summary of the Takings Impact Assessment with the Secretary of State for
publication in the Texas Register in accordance with the following
manner:
(a) during normal working hours, the University shall deliver to
the office of the Secretary of State two certified copies of the
document for filing; or
(b) the University shall send to the Secretary of State over
dedicated cable or commercial lines between word or data processors
one copy of the document to be filed and shall deliver to the Office
of the Secretary a letter of certification that is signed by the Vice
President for Finance and Business Affairs and that contains a
statement specifying the type of information electronically sent.
(c) The Vice President for Finance and Business Affairs shall
certify each document that is filed with the Secretary of State for
publication.
(d) The Vice President for Finance and Business Affairs shall act
as the liaison through whom all required documents are submitted to
the Secretary of State for filing and publication.
Section Five. LEGALITY
This policy is created in accordance with existing State law and is
subject to modification as determined by the Courts and the Legislature.
References
Texas Government Code, Chapter 2007
Attorney General Guidelines
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