Respect for Property Rights in Governmental Actions
WHEREAS, Article V, Section 1, of the Constitution of the State of Michigan of 1963 vests the executive power in the governor; and
WHEREAS, Article V, Section 2, of the Constitution of the State of Michigan of 1963 empowers the governor to make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration; and
WHEREAS, Article V, Section 8, of the Constitution of the State of Michigan of 1963 provides that each principal department shall be under the supervision of the governor, unless otherwise provided in the constitution; and
WHEREAS, Article X, Section 2, of the Constitution of the State of Michigan of 1963 provides that private property shall not be taken for public use without just compensation; and
WHEREAS, Protection of private property is a fundamental end and obligation of government; and
WHEREAS, Governmental actions may have an adverse impact on private property interests; and responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights; and
WHEREAS, Executive departments and agencies have a responsibility to review their actions carefully to prevent unnecessary takings and account in decision-making for those takings that are necessitated by statutory mandate.
NOW, THEREFORE, I, , governor of the state of Michigan, pursuant to the powers vested in me by the Constitution of the State of Michigan of 1963 and the laws of the state of Michigan, do hereby order the following:
SECTION 1. General Principles
In formulating or implementing policies that have takings implications, each state executive department and agency shall be guided by the following general principles:
(a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the just compensation clause of Article X, Section 2, of the Constitution of the State of Michigan of 1963, in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc.
(b) Actions undertaken by governmental officials that result in a physical invasion or occupancy of property that non-negligibly affect its value or use, may constitute a taking even though the action results in less than a complete deprivation of all use or value, or of all separate and distinct interests in the same private property and even if the action constituting a taking is temporary in nature.
(c) Actions to which this order applies are asserted to be for the protection of public health and safety should be undertaken only in response to real and substantial threats to public health and safety, and be no greater than is necessary to achieve the health and safety purpose.
(d) Undue delays in decision making during which private property use is interfered with carry a risk of being held to be takings. Additionally, a delay in processing may increase significantly the size of compensation due if a taking is later found to have occurred.
(e) The just compensation clause is self-actuating, requiring that compensation be paid whenever governmental action results in a taking of private property regardless of whether the underlying authority for the action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a non negligible impact on the use or value of private property should be scrutinized to avoid undue or unplanned burdens on the public treasury.
SECTION 2. Determination of taking and compensation due.
(a) Before implementing any policy, the executive department or agency shall assess the likelihood that engaging in such action will constitute a taking as understood by the principles of Article X, Section 2, of the Constitution of the State of Michigan of 1963, the just compensation clause of the Fifth Amendment of the Constitution of the United States, and by the principles established in Section 1 of this order.
(b) When a taking is clearly determined to result, compensation will be required whenever an owner is deprived of a use of property, or any part thereof, by governmental action that results in a non negligible reduction in fair market value and damages should be paid prior to commencing the action and without requirement of a judicial order mandating such payment.
SECTION 3. Department and Agency Action.
In addition to the fundamental principles set forth in Sections 1 and 2, executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when implementing policies that have takings implications:
(a) Before undertaking any proposed action regulating private property use, the executive department or agency involved shall, in internal deliberative documents and in the Michigan register:
(1) Identify clearly, with as much specificity as possible, the state interest and the necessity of the restriction on the private property use that is the subject of the proposed action; and
(2) Describe the burdens imposed on private property and the benefits to society resulting from the proposed restriction on the use of private property; and
(3) Establish that the restriction on the private property use is necessary and the least intrusive means for furthering the identified public purpose by analyzing and identifying alternative actions; and
(4) Establish that such proposed action substantially advances the identified purpose; and
(5) Establish, to the extent possible, that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk to be abated or to the purpose to be furthered.
(b) When an executive department or agency requires a private party to obtain a permit, license, or requires a designation, in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall:
(1) Serve the same purpose that would have been served by a prohibition of the use or action; and
(2) Substantially advance that purpose; and
(3) Be the least intrusive means for advancing that purpose in relation to property; and
(c) When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress.
(d) When a proposed action involves a permitting, licensing, or requirement process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending completion of the process, the duration of the process shall be kept to the minimum necessary and any unreasonable delay shall be considered a temporary taking for which compensation is due.
SECTION 4. Executive Department and Agency Implementation.
(a) The head of each executive department and agency shall designate an official to be responsible for ensuring compliance with this order with respect to the actions of that department or agency.
(b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions, in public notices of proposed rule making and messages transmitting legislative proposals to the Congress, stating the departments’ and agencies’ conclusions on the takings issues.
(c) The attorney general shall, to the extent permitted by law, take action to ensure that the policies of the executive departments and agencies are consistent with the principles, criteria, and requirements stated in Sections 1 through 3 of this order, and shall take action to ensure that all takings awards levied against an agency are subtracted from that agency’s budget.
(d) In addition to the guidelines required above, the attorney general shall, in consultation with each executive department and agency to which this order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency.
SECTION 5. Limitations.
This order does not apply to the forfeiture or seizure of property by law enforcement agencies as evidence of a crime or for violations of law; actions taken exclusively with respect to property held by the state of Michigan; or the discontinuance of a government program or regulation.
In fulfillment of the requirement of Article V, Section 2, of the Constitution of the State of Michigan of 1963, the provisions of this executive order shall become effective , 19 , at 12:01 a.m.
Given under the hand and the Great Seal of the State of Michigan this day of , in the year of our Lord, One Thousand Nine Hundred and Ninety- .
BY THE GOVERNOR: