18-15-1703. Taking — Application.

18-15-1703. Taking — Application. (a)(1) An owner of real property asserting a taking under this subchapter shall bring a cause of action in circuit court claiming that the implementation of a regulatory program by a governmental unit has permanently reduced by at least twenty percent (20%) the fair market value of the real property. (2) The reduction in the fair market value of the real property shall be determined by comparing the fair market value of the real property as if the regulatory program is not in effect and the fair market value of the real property determined as if the regulatory program is in effect. (3) To assert that a taking has occurred, the regulatory program must have been implemented at the time the owner acquired title or after April 2, 2015, whichever is later. (4) Upon a preponderance of the evidence, the real property shall be deemed to have been taken for the use of the public. (b) A jury shall determine the amount of the difference in fair market value. (c)(1) Upon a finding that real property has been taken for the use of the public, the governmental unit may either: (A) Pay compensation for the reduction in fair market value caused by the regulatory program; or (B) Invalidate all or part of the regulatory program. (2) Compensation is required under this section only when the fair market value of the real property is reduced by at least twenty percent (20%). (3) If a governmental unit elects to pay compensation to the private real property owner under subdivision (c)(1)(A) of this section: (A) The court that rendered the judgment in the lawsuit or the state agency that issued the final order or decision in the case shall withdraw the part of the judgment or final decision or order rescinding the regulatory program; (B) The governmental unit shall pay to the owner the damages determined in the judgment or final order by the thirtieth day after the date the judgment is rendered or the final decision or order is issued; and (C) When more than one (1) governmental unit is involved, the court shall determine the proportion each governmental unit shall be required to contribute to the compensation. (d) When a regulatory program resulting from a zoning ordinance operates to change a permitted use and the fair market value of the affected real property is the same or greater than the fair market value was before the effective date of the implementation of the regulatory program, compensation shall not be paid under this subchapter. (e) This subchapter does not apply to: (1) An owner of real property if the real property is not the direct subject of the regulatory program; (2) Laws or rules within the jurisdiction of the State Health Officer or regulatory activities of the Arkansas Pollution Control and Ecology Commission, the Division of Environmental Quality, the Arkansas Livestock and Poultry Commission, the Arkansas Public Service Commission, or the State Plant Board under delegated or authorized programs or approved plans under federal law; (3) An eminent domain proceeding to which the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq., as in effect on January 1, 2015, applies; (4) An eminent domain proceeding undertaken by a governmental unit under applicable law; (5) A lawful forfeiture or seizure of contraband under Arkansas Code, Title 5; (6) A lawful seizure of property as evidence of a crime or violation of law; (7) An action, including an action of a governmental unit, that is reasonably taken to fulfill an obligation mandated by federal law or an action of a governmental unit that is reasonably taken to fulfill an obligation mandated by state law; (8) The discontinuance or modification of a program, rule, or regulation that provides a unilateral expectation that does not rise to the level of a recognized interest in private real property; (9) An action taken to prohibit or restrict a condition or use of private real property if the governmental entity reasonably determines that the condition or use constitutes a public or private nuisance as determined by background principles of nuisance and property law of this state; (10) An action taken out of a reasonable good faith belief that the action is necessary to prevent an immediate threat to life or property; (11) A rule, regulation, or proclamation adopted for the purpose of regulating water safety, hunting, fishing, or control of nonindigenous or exotic aquatic resources; (12) An action taken by a governmental unit: (A) To regulate construction in an area designated under law as a floodplain; (B) To regulate on-site sewage facilities; (C) To prevent waste of or protect rights of owners of interest in groundwater; (D) To prevent subsidence; or (E) Under its police power to make laws, rules, and regulations for the benefit of its communities; (13) The appraisal of property for purposes of ad valorem taxation; (14) An action that is taken in response to a threat to public health and safety that is designed to advance the health and safety purpose; or (15) An action by a municipality unless the regulatory program has effect in the territorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces a regulatory program that does not impose identical requirements or restrictions in the entire territorial jurisdiction of the municipality.