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H0842.....................................................by WAYS AND MEANS REGULATORY TAKINGS - Amends existing law relating to the Idaho Regulatory Takings Act to revise the declaration of purpose; to revise the definition of "regulatory taking" and to define "per se taking"; and to revise provisions applicable to regulatory or administrative actions that have resulted or will result in a taking of private property by a governmental agency or entity. 03/22 House intro - 1st rdg - to printing 03/23 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 842 BY WAYS AND MEANS COMMITTEE 1 AN ACT 2 RELATING TO THE IDAHO REGULATORY TAKINGS ACT; AMENDING SECTION 67-8001, IDAHO 3 CODE, TO REVISE THE DECLARATION OF PURPOSE; AMENDING SECTION 67-8002, 4 IDAHO CODE, TO REVISE THE DEFINITION OF "REGULATORY TAKING" AND TO DEFINE 5 "PER SE TAKING"; AND AMENDING SECTION 67-8003, IDAHO CODE, TO REVISE PRO- 6 VISIONS APPLICABLE TO REGULATORY OR ADMINISTRATIVE ACTIONS THAT HAVE 7 RESULTED OR WILL RESULT IN A TAKING OF PRIVATE PROPERTY BY A GOVERNMENTAL 8 AGENCY OR ENTITY. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 67-8001, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 67-8001. DECLARATION OF PURPOSE. The purpose of this chapter is to estab- 13 lish an orderly, consistent review process that better enables state agencies 14 and local governments to evaluate whetherproposedregulatory or administra- 15 tive actionsmayresult in a taking of private propertywithout due process of16lawand to provide a requirement that certain takings be compensated. It is 17 not the purpose of this chapter toexpand orreduce the scope of private prop- 18 erty protections provided in the state and federal constitutions. 19 SECTION 2. That Section 67-8002, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 67-8002. DEFINITIONS. As used in this chapter: 22 (1) "Local government" means any city, county, taxing district or other 23 political subdivision of state government with a governing body. 24 (2) "Private property" means all property protected by the constitution 25 of the United States or the constitution of the state of Idaho. 26 (3) "State agency" means the state of Idaho and any officer, agency, 27 board, commission, department or similar body of the executive branch of the 28 state government. 29 (4) "Regulatory taking" means a regulatory or administrative action 30 resulting in deprivation of private property that is the subject of such 31 action, whether such deprivation is total or partial, permanent or temporary,32in violation of the state or federal constitution. 33 (5) "Per se taking" means a regulatory taking by local government that 34 within three (3) years prior to the effective date of this act or any time 35 thereafter results in a diminution of fifteen percent (15%) or more of the 36 fair market value of private property that is the subject of such action. 37 SECTION 3. That Section 67-8003, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 67-8003. PROTECTION OF PRIVATE PROPERTY. (1) The attorney general shall 2 1 establish, by October 1, 1994, an orderly, consistent process, including a 2 checklist, that better enables a state agency or local government to evaluate 3 proposed regulatory or administrative actions to assure that such actions do 4 not result inan unconstitutionala regulatory taking in violation of the 5 state or federal constitution, or an uncompensated per se taking of private 6 property. The attorney general shall review and update the process at least 7 on an annual basis to maintain consistency with changes in law. All state 8 agencies and local governments shall follow the guidelines of the attorney 9 general. 10 (2) Upon the written request of an owner of real property that is the 11 subject of such action, for actions which become final after the effective 12 date of this act, such request being filed with the clerkorof the agency or 13 entity undertaking the regulatory or administrative action not more than 14 twenty-eight (28) days after the final decision concerning the matter at 15 issue, a state agency or local governmental entity shall prepare a written 16 taking analysis concerning the action. Upon the written request of an owner of 17 real property that is the subject of such action, for actions which became 18 final within three (3) years prior to the effective date of this act, such 19 request being filed with the clerk of the agency or entity undertaking the 20 regulatory or administrative action not more than one hundred eighty (180) 21 days after the effective date of this act, a local government entity shall 22 prepare a written taking analysis concerning the action. Any regulatory taking 23 analysis prepared hereto shall comply with the process set forth in this chap- 24 ter, including use of the checklist developed by the attorney general pursuant 25 to subsection (1) of this section and shall be provided to the real property 26 owner no longer than forty-two (42) days after the date of filing the request 27 with the clerk or secretary of the agency or entity whose action is ques- 28 tioned. A regulatory taking analysis prepared pursuant to this section shall 29 be considered public information. 30 (3) A governmental action is voidable if a written taking analysis is not 31 prepared after a request has been made pursuant to this chapter. A private 32 real property owner, whose property is the subject of governmental action, 33 affected by a governmental action without the preparation of a requested tak- 34 ing analysis as required by this section may seek judicial determination of 35 the validity of the governmental action by initiating a declaratory judgment 36 action or other appropriate legal procedure. A suit seeking to invalidate a 37 governmental action for noncompliance with subsection (2) of this section must 38 be filed in a district court in the county in which the private property 39 owner's affected real property is located. If the affected property is located 40 in more than one (1) county, the private property owner may file suit in any 41 county in which the affected real property is located. 42 (4) If the regulatory taking analysis prepared pursuant to this section 43 shows that a per se taking has resulted from the regulatory or administrative 44 action, such regulatory or administrative action is voidable unless compensa- 45 tion equal to the diminution in the fair market value of the property is paid 46 to the owner by the local governmental entity. A private real property owner 47 whose property is the subject of governmental action affected by a governmen- 48 tal action resulting in a taking may seek judicial determination of the valid- 49 ity of the action or of whether there has been a per se taking by initiating a 50 declaratory judgment action or other appropriate legal procedure. A private 51 real property owner whose property is the subject of governmental action 52 affected by governmental action resulting in a per se taking may seek compen- 53 sation or judicial determination of the validity of the governmental action by 54 initiating a declaratory judgment action or other appropriate legal procedure. 55 A suit to determine if a per se taking has occurred, seeking compensation or 3 1 to invalidate a governmental action pursuant to this subsection must be filed 2 in a district court in the county in which the private property owner's 3 affected real property is located. If the affected property is located in more 4 than one (1) county, the private property owner may file suit in any county in 5 which the affected real property is located. 6 (5) (a) The provisions of this section providing that a regulatory or 7 administrative action is voidable and requiring that compensation be paid 8 shall not apply to that portion of a per se taking shown by the regulatory 9 taking analysis to be the result of regulatory or administrative actions: 10 (i) Restricting or prohibiting activities commonly and historically 11 recognized as public nuisances under common law, provided that this 12 exception shall be construed narrowly in favor of a finding that com- 13 pensation is payable; 14 (ii) Restricting or prohibiting activities for the protection of 15 public health and safety, such as fire and building codes, health and 16 sanitation rules or regulations, solid or hazardous waste rules or 17 regulations, or pollution control rules or regulations; or 18 (iii) To the extent such actions are required to comply with federal 19 law. 20 (b) Nothing in this subsection (5) shall alter requirements in this chap- 21 ter for the preparation of a written regulatory taking analysis. Where a 22 portion of a per se taking is shown by the regulatory taking analysis to 23 be attributable to regulatory or administrative actions taken pursuant to 24 the conditions set forth in paragraphs (a)(i) through (iii) of this sub- 25 section (5), a private real property owner may pursue all remedies avail- 26 able to him in this chapter as to the portion of the per se taking not 27 attributable to such regulatory or administrative actions taken pursuant 28 to the conditions set forth in those paragraphs. 29 (6) This chapter shall not apply to regulatory or administrative actions: 30 (a) Terminating illegal activity; or 31 (b) Restricting or prohibiting the use of property for the purpose of 32 selling pornography or performing nude dancing, provided however, that 33 this paragraph is not intended to affect or alter rights provided by the 34 constitution of the United States or the constitution of the state of 35 Idaho. 36 (7) During the preparation of the taking analysis, any time limitation 37 relevant to the regulatory or administrative actions shall be tolled. Such 38 tolling shall cease when the taking analysis has been provided to the property 39 owner. Both the request for a taking analysis and the taking analysis shall be 40 part of the official record regarding the regulatory or administrative action.
STATEMENT OF PURPOSE RS 16262 This legislation changes definitions and makes amendments to the Idaho Regulatory Takings Act to require compensation be paid with respect to certain takings of private property by a governmental agency or entity. FISCAL NOTE There is no fiscal impact to the general fund. Contact Name: Rep. Mike Moyle (208) 332-1000 Maurice Ellsworth, Attorney-at-Law Phone: (208) 338-1001 STATEMENT OF PURPOSE/FISCAL NOTE H 842