_____________ bill NO. _____________
INTRODUCED
BY _________________________________________________
By Request of the ****
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATING TO PROPERTY INTERESTS; IDENTIFYING THINGS IN WHICH PROPERTY INTERESTS exist, INCLUDING GOODWILL AND GOING CONCERN VALUE OF A BUSINESS, LICENSE TO PURSUE A BUSINESS OR LIVELIHOOD, REAL PROPERTY AND FIXTURES, PERSONAL PROPERTY AND APPURTENANCES, WATER RIGHTS, AND INTANGIBLE PROPERTY; PROVIDING THAT IDENTIFIED PROPERTY INTERESTS ARE PROTECTED PRIVATE PROPERTY INTERESTS; PROVIDING EXCEPTIONS; AMENDING SECTION 70-1-104, MCA; and PROVIDING AN IMMEDIATE EFFECTIVE date and AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 70-1-104, MCA, is amended to read:
"70-1-104. In what things property interests may exist. (1) There may be ownership of:
(1)(a) all inanimate things which that are capable of appropriation or of manual delivery;
(2)(b) all domestic animals;
(3)(c) all obligations;
(4)(d) such products of labor or skill such as the composition of an author, the goodwill and going concern value of a business, trademarks, and signs; and
(5)(e) rights created or granted by statute;
(f) licenses to pursue a business or livelihood, including state licenses that have been approved and issued and for which the holder has a legitimate claim of entitlement, and the property interests associated with licenses, including any authorized ability to freely transfer or dispose of the license;
(g) real property and fixtures;
(h) personal property and appurtenances;
(i) water rights and beneficial water use permits or authorizations; and
(j) intangible property.
(2) (a) The property interests in subsection (1) are protectable private property interests under Article II, section 29, of the Montana constitution for which compensation may be claimed and just compensation must be awarded when a court finds that the property has been damaged or taken for a public use by means of eminent domain or a regulatory taking. Prima facie evidence of a regulatory taking occurs if there is 25% or greater diminution in the private property's fair market value.
(b) Subsection (2)(a) may not be construed to limit the types of property interests or what may be considered property recognized under the Montana constitution or by law for which just compensation may be claimed and awarded, such as property interests recognized and protected under Article II, section 3, of the Montana constitution and property as defined in 15-1-101.
(3) A court may not deny a regulatory taking on the basis that the property being taken is associated with a highly regulated business or industry.
(4) (a) This section does not affect:
(i) the enforcement of the terms of a license, permit, or authorization, including requirements imposed by federal law; or
(ii) the power or authority of a county, city, or town to lawfully enact valid zoning, subdivision, or other land use regulations or ordinances that are required by law or that are necessary to protect documented public health, welfare, or safety impacts.
(b) Compensation may not be claimed under subsection (2) for action taken pursuant to subsection (4)(a).
(5) This section does not apply to any license that is not transferable and may not be sold. This includes but is not limited to driver's licenses, professional licenses held by individuals, or any license relating to marijuana.
(6) In order to be protected under subsection (2), the property interests described in subsection (1) must be owned by the claimant at the time of the government action for which a taking is being claimed. In the case of a business interest, the business must have been authorized by law and must have been in existence at the time of the government action for which a taking is being claimed."
NEW SECTION. Section 2. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 3. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 4. Applicability. [This act] applies to governmental actions involving eminent domain or regulatory takings that are initiated on or after [the effective date of this act].