§ 28-32-09 — Takings assessment

North Dakota § 28-32-09

• Jurisdiction: North Dakota
• Title 28: Judicial Procedure, Civil
• Ch. 28-32: Administrative Agencies Practice Act

Text

1. An agency or the commission shall prepare a written assessment of the constitutional
takings implications of a proposed rule that may limit the use of private real property.
The assessment must:

a. Assess the likelihood that the proposed rule may result in a taking or regulatory
taking.
b. Clearly and specifically identify the purpose of the proposed rule.
c. Explain why the proposed rule is necessary to substantially advance that purpose
and why no alternative action is available that would achieve the agency's or
commission's goals while reducing the impact on private property owners.
d. Estimate the potential cost to the government if a court determines that the
proposed rule constitutes a taking or regulatory taking.
e. Identify the source of payment within the agency's or commission's budget for
any compensation that may be ordered.
f. Certify that the benefits of the proposed rule exceed the estimated compensation
costs.
2. Any private landowner who is or may be affected by a rule that limits the use of the
landowner's private real property may request in writing that the agency or commission
reconsider the application or need for the rule. Within thirty days of receiving the
request, the agency or commission shall consider the request and shall in writing
inform the landowner whether the agency or commission intends to keep the rule in
place, modify application of the rule, or repeal the rule.
3. In an analysis of the takings implications of a proposed rule, "taking" means the taking
of private real property, as defined in section 47-01-03, by government action which
requires compensation to the owner of that property by the fifth or fourteenth
amendment to the Constitution of the United States or section 16 of article I of the
Constitution of North Dakota. "Regulatory taking" means a taking of real property
through the exercise of the police and regulatory powers of the state which reduces
the value of the real property by more than fifty percent. However, the exercise of a
police or regulatory power does not effect a taking if it substantially advances
legitimate state interests, does not deny an owner economically viable use of the
owner's land, or is in accordance with applicable state or federal law.
28-32-10. Notice of rulemaking - Hearing date.
1. An agency or the commission shall prepare a full notice and an abbreviated notice of
rulemaking.
a. The full notice of the proposed adoption, amendment, or repeal of a rule must
include a short, specific explanation of the proposed rule and the purpose of the
proposed rule, identify the emergency status and declared effective date of any
emergency rules, include a determination of whether the proposed rulemaking is
expected to have an impact on the regulated community in excess of fifty
thousand dollars, identify at least one location where interested persons may
review the text of the proposed rule, provide the address to which written
comments concerning the proposed rule may be sent, provide the deadline for
submission of written comments, provide a telephone number and post-office or
electronic mail address at which a copy of the rules and regulatory analysis may
be requested, and, in the case of a substantive rule, provide the time and place
set for each oral hearing. An agency's full notice must include a statement of the
bill number and general subject matter of any legislation, enacted during the most
recent session of the legislative assembly, which is being implemented by the
proposed rule. The commission's full notice must include a statement of the
provision of the Constitution of North Dakota or the bill number and general
subject matter of any legislation that is being implemented by the proposed rule.
The full notice must be filed with the legislative council, accompanied by a copy of
the proposed rules.
b. The agency or commission shall request publication of an abbreviated newspaper
publication notice at least once in each official county newspaper published in this
state, which must:
(1) Be in a display-type format with a minimum width of one column of
approximately two inches [5.08 centimeters] and a minimum depth of

approximately three inches [7.62 centimeters] and with a headline
describing the general topic of the proposed rules.
(2) Include the telephone number or address to use to obtain a copy of the
proposed rules, identification of the emergency status and declared effective
date of any emergency rules, the address to use and the deadline to submit
written comments, the location, date, and time of the public hearing on the
rules, and a short description of the general subject matter of the proposed
rules submission. The notice also may include a quick response code
providing access to the full notice or additional information related to the
proposed rules at the discretion of the agency or commission.
2. The agency or commission shall mail or deliver by electronic mail a copy of the full
notice and proposed rule to each member of the legislative assembly whose name
appeared as a sponsor or cosponsor of legislation, enacted during the most recent
session of the legislative assembly, which is being implemented by the proposed rule
and to each person who has made a timely request to the agency or commission for a
copy of the notice and proposed rule. The agency or commission may mail or
otherwise provide a copy of the full notice to any person who is likely to be an
interested person. The agency or commission may charge persons who are not
members of the legislative assembly fees for copies of the proposed rule as allowed
under section 44-04-18.
3. In addition to the other notice requirements of this subsection, the superintendent of
public instruction shall provide notice of any proposed rulemaking by the
superintendent of public instruction to each association with statewide membership
whose primary focus is elementary and secondary education issues which has
requested to receive notice from the superintendent under this subsection and to the
superintendent of each public school district in this state, or the president of the school
board for school districts that have no superintendent, at least twenty days before the
date of the hearing described in the notice. Notice provided by the superintendent of
public instruction under this section must be by first-class mail. However, upon request
of a group or person entitled to notice under this section, the superintendent of public
instruction shall provide the group or person notice by electronic mail.
4. The legislative council shall establish standard procedures for the commission and all
agencies to follow in complying with the provisions of this section and a procedure to
allow any person to request and receive mailed copies of all filings made by agencies
and the commission pursuant to this section. The legislative council may charge an
annual fee as established by the administrative rules committee for providing copies of
the filings.
5. At least twenty days must elapse between the date of the publication of the notice and
the date of the hearing. Within fifteen business days after receipt of a notice under this
section, a copy of the notice must be mailed by the legislative council to any person
who has paid the annual fee established under subsection 4.