Secure Arkansas

We at Secure Arkansas are rebutting many of the negative statements made by the Arkansas General Assembly regarding some of the Action Alerts we have sent out concerning SB757. Honestly, we feel like we have only scratched the surface of the damage that this bill could actually cause property owners. One senator claimed that we were misrepresenting the information sent out to our supporters.  You as readers and legislators will have to be the judge of that. Below, we have included the entire bill for your verification of the wording of the bill. We have also inserted our comments within SB757 in highlighted text.  (Or, if you prefer, you may read the bill here on the Arkansas Legislature’s website.)

The reader must have an understanding of eminent domain to understand SB757.  Eminent domain is defined as the power the government possesses to be able to take over the private property of a person without their consent. Our government can only acquire private land if it is shown that the property is to be used for public purpose. The government can seize people’s private property under eminent domain laws as long as the private property owner is compensated at fair market value. The wording of SB757 would change the rules of eminent domain:  the bill contains 15 separate cases in which the rights of the private property owner are NOT protected. Again, SB757 is a restriction on private property rights. Believe it or not, SB757 is more restrictive than the model legislation put out by ALEC.

When private property is acquired by the government, it is called “taking”. The government uses eminent domain laws to take the private property for public use.

Legislators: please read the entire bill and not just the summary put out by the American Legislative Exchange Council (ALEC).

Questions the reader must ask legislators concerning this bill: 

• What led you to support this particular legislation at this time?

• Who influenced your decision?

• What role did ALEC’s model legislation play?

• Is there any infringement on private property rights? (The answer MUST be YES!  If they claim otherwise, they’re not being truthful.)

• What are the bureaucrats going to be allowed to do through their “regulatory program”?

• Did you know that the corporation members of American Legislative Exchange Council (ALEC) voted to adopt the “The Private Property Protection Act” model legislation? This is the same piece of legislation that is being pushed in Arkansas and other states around the country. ALEC and their global members work in unison with our legislators to write laws to govern your life.  Big business and our legislators are making the laws, and you have no voice in what is happening. It is time that ALEC is kicked out of Arkansas, along with the legislators supporting ALEC.

We wonder: could this bill be a scheme to hide the fact that it was written to limit government compensation to private property owners and deny us our constitutional rights?  It appears that the wording of this bill was meant to mask the true intention of it.

SB757 passed in the Senate and MUST be blocked and killed by the House. The Senators that voted for this bad bill apparently did so without reading it in it’s entirety and can be found by clicking here.

===== SB757 is below with Secure Arkansas’ comments in highlighted text =====

 

State of Arkansas As Engrossed:  S3/17/15

90th General Assembly A Bill

Regular Session, 2015 SENATE BILL 757

 

By: Senators J. Hendren, Files, Hester

For An Act To Be Entitled

AN ACT TO RESTRICT THE ABILITY OF LOCAL GOVERNMENTS AND OTHER ENTITIES TO REGULATE PRIVATE PROPERTY RIGHTS; TO PROTECT PRIVATE PROPERTY RIGHTS; TO CREATE THE PRIVATE PROPERTY PROTECTION ACT; TO REGULATE THE POWER OF EMINENT DOMAIN BY CERTAIN PUBLIC UTILITIES; TO DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.

Subtitle

TO RESTRICT THE ABILITY OF LOCAL GOVERNMENTS AND OTHER ENTITIES TO REGULATE PRIVATE PROPERTY RIGHTS; AND TO DECLARE AN EMERGENCY.

This bill restricts private property rights and violates the US Constitution Article V and the Arkansas Constitution Article 2 Section 22 and Article 12 Section 9.

 

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

SECTION 1.  DO NOT CODIFY.  Legislative findings.

The term “DO NOT CODIFY” after SECTION 1  means that nothing in this section is to be codified and written into code and is meant to deceive the reader.

From Black’s law Dictionary: Codification is the process of collecting and arranging the laws of a country or state into a code, t. e., into a complete system of positive law, scientifically ordered, and promulgated by legislative authority.

 

The General Assembly finds that:

(1)  From time to time, state and local regulatory programs have the effect of reducing the market value of private property;

The type of regulatory programs that will restrict and limit your private property rights come under the following designations (these are just a sample of some the Local, County, District, State and Federal groups that could have a control on restricting or eliminating your private property rights):

 

Local: City Ordinances; Zoning Laws; etc;

County: County Quorum Court Ordinances;  County Zoning Laws; etc;

Districts: Many of these are ran by unelected people. Example Metropolitan Planning Organization; etc;

State: Arkansas Department of Health, Arkansas Department of Agriculture, Arkansas Historic Preservation Program, Arkansas Alternative Energy Commission, Arkansas Cemetery Board, Arkansas Economic Development Commission, Arkansas Department of Environmental Quality; Arkansas Forestry Commission; Arkansas Game and Fish Commission; Department of Arkansas Heritage;  Keep Arkansas Beautiful Commission; Arkansas Natural and Cultural Resources Council;  Arkansas Natural Heritage Commission;   Arkansas Natural Heritage Commission;  Arkansas Parks, Recreation, and Travel Commission; etc;

Federal: Army Corps of Engineers;  Bureau of Land Management (BLM); Department of Agriculture; Department of Defense; Department of Energy; Department of the Interior; Department of Transportation;  Environmental Protection Agency (EPA); Federal Energy Regulatory Commission; Fish and Wildlife Service; Forest Service;

(2)  When state and local regulatory programs reduce the market value of private property and do not abate through their implementation a public nuisance affecting the public health, safety, morals, or general welfare, it is fair and appropriate that the state or the locality compensate the property owner for the loss in market value of the property caused by the implementation of the regulatory program;

(3)  Compensation to the property owner is also fair and appropriate in cases involving regulatory programs that abate a public nuisance when the property owner did not contribute to the public nuisance, did not acquire the property knowing of the public nuisance, or did not acquire the property under circumstances in which the property owner should have known about the public nuisance based upon prevailing community standards; and

(4)  In order to establish a fair and equitable compensation system to address these stated public policy concerns and findings, the General Assembly should establish a compensation system.

 

End of Section 1. Again, what is said in Section 1 above means it is not put into code and is meant to deceive the reader. Nothing in Section 1 is codified, meaning that it is not put into a systematic code.

 

SECTION 2.  Arkansas Code Title 18, Chapter 15, is amended to add an additional subchapter to read as follows:

Subchapter 17 — Private Property Protection Act

 

18-15-1701.  Title.

This subchapter shall be known and may be cited as the “Private Property Protection Act”.

Again, the title is meant to deceive the reader. SB757 was NEVER meant to protect Private Property. It is a ruse! SB757 was meant to give advantage to Corporate America and big business. Remember that SB757 came from the American Legislative Exchange Council (ALEC). Please note the title of the ALEC Model Legislation is “Private Property Protection Act”.  This is the same title that is used in subchapter 17 of SB757. The ALEC model legislation is less restrictive that the Arkansas Legislation SB757.

 

18-15-1702.  Definitions.

As used in this subchapter:

(1)  “Fair 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;

(2)  “Governmental unit” means the state and any of its agencies or political subdivisions;

(3)  “Owner” means a person with legal or equitable title to affected private real property at the time a taking occurs;

(4)  “Real property” means real property, the use of which is directly controlled or regulated by a regulatory program;

(5)(A)  “Regulatory program” means a rule, regulation, law, or ordinance that affects the fair market value of real property.

(B)  “Regulatory program” includes without limitation moratoriums on growth, aesthetic or scenic districts, environmental districts, overlay districts, green space ordinances, landscape ordinances, tree ordinances, land use planning programs, and zoning programs by a governmental unit when the regulatory program is not designed to carry out or protect the adopted plans of a governmental unit that are designed to protect the health, safety, or welfare of the citizens.

Most of these Regulatory Programs allow districts to be set up and run by unelected people that answer to no one. Notice all the UN Agenda 21 and Sustainable Development terms in this (5) (B) section.

(C)  “Regulatory program” does not include a moratorium enacted to give a municipality time to adopt or amend plans and ordinances; and

(6)  “Territorial jurisdiction” means the territorial jurisdiction of a municipality as described in § 14-56-413.

The following is directly from Arkansas Code 14-56-413 (a)  (1)  (A) The territorial jurisdiction of the legislative body of the city having a planning commission, for the purpose of this subchapter, shall be exclusive and

shall include all land lying within five (5) miles of the corporate limits.

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.

The Real Property fair market value must be reduced by at least 20% before the private property owner has a chance to recover a loss, and then the claim needs to be filed in circuit court. The amount of compensation will be determined by a jury.

(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 if the regulatory program is not in effect and the fair market value of the real property determined if the regulatory program is in effect, considering the uses permitted at the time the owner acquired the title or on the effective date of this subchapter, whichever is later.

(3)  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)(i)  Pay compensation for the reduction in value caused by the regulatory program.

(ii)  If a governmental unit elects to pay compensation to the private real property owner under this subdivision (c)(1)(A):

(a)  The court that rendered the judgment in the suit 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; and

(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.

(iii)  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; 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%).

Did you know that your legislators changed the Amendment to  SB757 to require that the property value had to be reduced  from 10% to 20% before you could make a claim? Why would our legislators go against the private property owners?  A reduction of property value is a taking! Property value reduction of any kind should be compensated.

(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:

The taking of private property does NOT apply to item 1 through 15 below. That means there is no way that the private property owner will be able to recover the fair market value on private property taken per items 1 through 15.
Do you want to give up your private property ownership?

Are you willing to accept all 15 cases below where there is no recovery for your loss?

(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 Arkansas Department of Environmental Quality, the Arkansas Livestock and Poultry Commission, or the State Plant Board under delegated or authorized programs or approved plans under federal law;

Back in 1991, the Arkansas General Assembly passed Act 1076 that gives ADEQ (the Arkansas Department of Environmental Quality) the authority to come onto your property without a search warrant.  If the property owner refuses ADEQ the access, then ADEQ can fine the property owner $25,000. This is not a error, and yes it is $25,000. The section of the Arkansas Code that addresses the penalty is directly below.

Arkansas Code § 8-1-107 (f) Penalties. Any willful and unjustified refusal of right of entry and inspection to department personnel as set out in this section shall constitute a misdemeanor subject to a fine of up to twenty-five thousand dollars
($ 25,000) or civil penalties up to twenty-five thousand dollars ($ 25,000).

This is just another example where our Arkansas Legislators violated our private property rights.

(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;

This code could be just a minor code violation. Just think: we could have our property seized under this item, and we would have no recourse.

(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 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;

Here is case of which we all could be guilty:  a Nuisance is any human activity or physical condition that is harmful to the health of another person, is indecent or offensive to the senses, or interferes with another person’s reasonable use and enjoyment of his or her property. A nuisance can be either public or private. A public nuisance affects the rights of an entire community or large number of people, whereas a private nuisance affects an individual or the property rights of a small group of people.

Private Nuisance is interfering with the comfort, convenience, or health of an occupant. Examples are foul odors, noxious gases, smoke, dust, loud noises. A nuisance may also disturb an occupant’s mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred. Another example would be a person who has a pool on his or her property and that individual didn’t take reasonable precautions such as erecting a fence, to prevent injury to children.

Public Nuisances may interfere with public health, such as in the keeping of diseased animals or a mosquito-infested  pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, owning a vicious dog, etc.

(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 onsite 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 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.

Again, please note that Items 1 through 15 above do NOT protect private property and that there are no provisions for a recovery for a loss. Are you willing to allow the Arkansas State Legislators to restrict and control your private property rights?

18-15-1704.  Statute of limitations.

(a)(1)  A lawsuit under this subchapter shall be filed by the one-hundred-eightieth day after the date the private real property owner knew or should have known that the regulatory program restricted or limited the owner’s right in the private real property.

Please note that in Arkansas Code 18-15-174 of this subchapter, you only have 180 days (6 months) to file a claim if the  property owner had a restriction or a limit placed on the owner’s right in the private real property.

(2)  The statute of limitations begins upon the final administrative decision implementing the regulatory program affecting the owner’s or user’s property.

(b)  A program is implemented with respect to an owner’s or user’s property when actually applied to that property.

 

18-15-1705.  Cumulative remedies.

(a)  The remedies provided under this chapter are not exclusive and are in addition to other procedures or remedies provided by law.

(b)  A person shall not recover under this chapter and also recover under another law or in an action at common law for the same economic loss.

 

18-15-1706.  Appeals.

An appeal from the final judgment of the cause of action in § 18-15-1703 may be taken according to law.

 

SECTION 3.  Arkansas Code Title 23, Chapter 18, Subchapter 1, is amended to add an additional section to read as follows:

23-18-108.  Eminent domain for transmission lines — Market value.

Could this section that is designated  “Transmission Lines” be for the proposed  “Plains & Eastern Clean Line Project”? For the map of this proposed project, click here. The proposed right of way is a 200-foot wide right of way.

 

This is a legislator sell-out to big power companies.

(a)  As used in this section, “electric utility” means an electric utility that:

(1)  Is under the jurisdiction of the Arkansas Public Service Commission;

(2)  Primarily transmits electricity; and

(3)  Has not been directed or designated to construct an electric transmission facility by a regional transmission organization.

(b)  If an electric utility acquires land from a private property owner through eminent domain for purposes of a transmission line, then the electric utility shall compensate the private property owner at three (3) times the market value of the property taken by eminent domain.

 

SECTION 4.  EMERGENCY CLAUSE.  It is found and determined by the General Assembly of the State of Arkansas that some actions by a governmental unit reduce the value of real property; that the property owners now are not being compensated for that reduction in value; and that this act is immediately necessary because the inequity needs to be eliminated as soon as possible. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on:

(1)  The date of its approval by the Governor;

(2)  If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or

(3)  If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.

 

/s/J. Hendren

 

===== SB757 is shown above with Secure Arkansas’ comments in highlighted text =====

 

We must have legally protected private property rights because without it, the creation of wealth would be impossible and our liberty will be at stake.  Secure Arkansas sees this bill as taking a direct aim at restricting and eliminating private property rights. 

Reiterating once again, this bill tries to conceal the fact that it is limiting and sometimes provides NO compensation to private property owners! 

The sponsors of this flawed and dangerous bill are Senator Jim Hendren (Gravette), Senator Jake Files (Ft. Smith), and Senator Bart Hester (Cave Springs).

Arkansas Representatives: PLEASE vote NO on SB757.  It’s a bad bill. YOU MUST READ THE WHOLE BILL before you decide. Don’t just read the title and Section 1 of the bill!

Secure Arkansas supporters:  Call these representatives, please!  Especially Rep. Betty Overbey, the CHAIR of the City, County and Local Affairs Committee in the House, as well as those legislators whose names are in bold font, as they are on the City, County and Local Affairs Committee in the House.  The bill is headed to that committee.  (We’re not sure when.  Check here for updates.)
Tell them you want them to vote “NO” on SB757 because it does NOT protect our private property rights!

Directly below the table are the email addresses for the representatives in the City, County & Local Affairs Committee, in case you’d like to copy and paste them to email them all at one time.

Please notify Secure Arkansas about the responses you receive from your representatives.

andy.davis@arkansashouse.org

arstrep43@gmail.com

betty.overbey@arkansashouse.org

Bill@billgossage.com

bob@bobballinger.com

bobjohnsoncpa@gmail.com

brandt.smith@arkansashouse.org

brent.talley@arkansashouse.org

bruce.cozart@arkansashouse.org

camille.bennett@arkansashouse.org

charlenefiteforstaterep@yahoo.com

charles.blake@arkansashouse.org

charlotte.douglas@arkansashouse.org

chris.richey@arkansashouse.org

clarke.tucker@arkansashouse.org

clcollins6@cox.net

dan-douglas@sbcglobal.net

dan.sullivan@suddenlink.net

dave.wallace@arkansashouse.org

david.fielding@arkansashouse.org

david.meeks@arkansashouse.org

david.whitaker@arkansashouse.org

davidlbranscum@hotmail.com

deann.vaught@arkansashouse.org

deborah.ferguson@arkansashouse.org

dellarosa4arkansas@gmail.com

dhillman@futura.net

donnie.copeland@arkansashouse.org

dwight.tosh@arkansashouse.org

earmstrong4rep@gmail.com

ffa191@sbcglobal.net

fjlove@att.net

gary.deffenbaugh@arkansashouse.org

George.McGill@arkansashouse.org

grandmotherscott@yahoo.com

grant.hodges@arkansashouse.org

greg@gregleding.com

housedouglas@gmail.com

jackladyman@gmail.com

jamesratliff3468@gmail.com

jeff@jeffwardlaw.com

jeremy@growing45.com

jfarrer@suddenlink.net

jim.dotson@arkansashouse.org

jmsturch@yahoo.com

joe.jett@arkansashouse.org

john.baine@arkansashouse.org

johnwalkeratty@aol.com

jon.eubanks@arkansashouse.org

josh.miller@arkansashouse.org

jtvines13@sbcglobal.net

julie-mayberry@att.net

justin.boyd.pharm.d@gmail.com

justin.harris@arkansashouse.org

justinrory@yahoo.com

karilyn.brown@arkansashouse.org

kelley@kelleylinck.com

ken4arkansas@gmail.com

kenbragg@windstream.net

kenneth.ferguson@arkansashouse.org

kim.hendren@arkansashouse.org

kimdhammer@yahoo.com

l_jean@sbcglobal.net

lance.eads@gmail.com

lanny.fite@att.net

laurie.rushing@arkansashouse.org

les.eaves@arkansashouse.org

marcus.richmond@arkansashouse.org

markdlowery@mac.com

marshall.wright@arkansashouse.org

mary.bentley@arkansashouse.org

mary@marybroadawayarkansas.com

mathew.pitsch@cox.net

matthew.shepherd@arkansashouse.org

mdmcelroy1@yahoo.com

micah.neal@arkansashouse.org

michael.gray@arkansashouse.org

michelle.gray@arkansashouse.org

mickey@mickeygates.com

mike.holcomb@arkansashouse.org

milton.nicks@arkansashouse.org

monte.hodges@arkansashouse.org

nate.bell@arkansashouse.org

nelda@neldaspeaks.com

paytonforthepeople@yahoo.com

pettyforar@yahoo.com

prissy.hickerson@arkansashouse.org

richard@richardwomack.com

rick.beck@arkansashouse.org

rkm_72360@yahoo.com

rmcnair1950@gmail.com

robin.lundstrum@arkansashouse.org

scottbaltz@yahoo.com

sheilla.lampkin@arkansashouse.org

sorvillo4house@gmail.com

stephen.magie@arkansashouse.org

stephen.meeks@arkansashouse.org

trevor.drown@arkansashouse.org

vivian.flowers@arkansashouse.org

wsabin@wsabin.org

 

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