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H0606......................................................by STATE AFFAIRS REAL PROPERTY - Amends, repeals and adds to existing law to provide for actions by affected persons who have an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development of the property by the state or a political subdivision of the state. 02/03 House intro - 1st rdg - to printing 02/04 Rpt prt - to St Aff
H0606|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 606 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO ACTIONS BY UNITS OF GOVERNMENT INVOLVING REAL PROPERTY; AMENDING 3 SECTION 67-6519, IDAHO CODE, TO REVISE THE PERMIT GRANTING PROCESS AND TO 4 MAKE TECHNICAL CORRECTIONS; REPEALING SECTION 67-6521, IDAHO CODE; AMEND- 5 ING CHAPTER 65, TITLE 67, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 6 67-6521, IDAHO CODE, TO DEFINE TERMS, TO PROVIDE FOR ACTIONS BY AFFECTED 7 PERSONS WHO HAVE AN INTEREST IN REAL PROPERTY WHICH MAY BE ADVERSELY 8 AFFECTED BY THE ISSUANCE OR DENIAL OF A PERMIT AUTHORIZING THE DEVELOPMENT 9 OF THE PROPERTY, TO PROVIDE PROCEDURES, TO PROVIDE FOR REVIEW BY A SPECIAL 10 MASTER AND TO PROVIDE AN ACTION FOR DECLARATORY JUDGMENT. 11 Be It Enacted by the Legislature of the State of Idaho: 12 SECTION 1. That Section 67-6519, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 67-6519. PERMIT GRANTING PROCESS. (1) As part of ordinances 15 required or authorized under this chapter, a procedure shall be established 16 for processing in a timely manner applications for permits for which a reason- 17 able fee may be charged , provided however, that a final decision on an 18 application for a permit must be made by the governing board within one (1) 19 year from the date the application was filed . 20 (2) Each application for a permit required or authorized 21 under this chapter shall first be submitted to the zoning or planning and zon- 22 ing commission for its recommendation or decision. The commission shall have a 23 reasonable time fixed by the governing board to examine the application before 24 the commission makes its decision on the permit or makes its recommendation to 25 the governing board. Consistent with the time limits established by this 26 section eEach commission or governing board shall estab- 27 lish by rule a time period within which a recommendation or decision must be 28 made. 29 (3) After a hearing, the commission or governing board may: 30 (a) Grant or deny a permit; or 31 (b) Delay such a decision for a definite period of time for further study 32 or hearing, provided however, the time shall not exceed the time allowed 33 by this section. 34 (4) Whenever a governing board or zoning or planning and zoning 35 commission grants or denies a permit, it shall specify: 36 (a)tT he ordinance and standards used in evalu- 37 ating the application; 38 (b)tT he reasons for approval or denial; and 39 (c)tT he actions, if any, that the applicant 40 could take to obtain a permit. 41An applicant denied a permit or aggrieved by a decision may within42twenty-eight (28) days after all remedies have been exhausted under local43ordinance seek judicial review under the procedures provided by chapter 52,2 1title 67, Idaho Code.2 SECTION 2. That Section 67-6521, Idaho Code, be, and the same is hereby 3 repealed. 4 SECTION 3. That Chapter 65, Title 67, Idaho Code, be, and the same is 5 hereby amended by the addition thereto of a NEW SECTION , to be 6 known and designated as Section 67-6521, Idaho Code, and to read as follows: 7 67-6521. ACTIONS BY AFFECTED PERSONS. (1) Definitions: 8 (a) "Agency" shall mean the state of Idaho or any political subdivision 9 thereof. 10 (b) "Affected person" shall mean an applicant or one having an interest 11 in real property which may be adversely affected by the issuance or denial 12 of a permit authorizing the development of the property. 13 (c) "Applicant" shall mean one filing an application for a permit with an 14 agency. 15 (d) "Development order" shall mean any order by which an agency grants 16 with conditions or denies an application for a permit. 17 (e) "Permit" shall mean any means by which an applicant is authorized by 18 an agency to develop real property. A permit shall not include an applica- 19 tion for a variance or special exception, a legislative rezone, or an 20 action adopting or amending a comprehensive plan. 21 (2) Any affected person may at any time prior to final action on a permit 22 required or authorized under this chapter, if no hearing has been held on the 23 application, petition the agency in writing to hold a hearing pursuant to the 24 notice and hearing provisions of section 67-6512, Idaho Code, which hearing 25 shall be held no later than sixty (60) days from the date of the petition, and 26 in no event shall the period extend past that allowed in section 67-6519, 27 Idaho Code. 28 (3) An affected person denied a permit or aggrieved by a decision on a 29 land use decision may, within twenty-eight (28) days after all remedies have 30 been exhausted under local ordinances, seek judicial review as provided by 31 chapter 52, title 67, Idaho Code. 32 (4) Authority to exercise the regulatory power of zoning in land use 33 planning shall not simultaneously displace coexisting eminent domain authority 34 granted under section 14, article I, of the constitution of the state of Idaho 35 and chapter 7, title 7, Idaho Code. 36 (5) An affected person claiming "just compensation" for a perceived 37 "taking," the basis of the claim being that a specific zoning action or per- 38 mitting action restricting private property development is actually a regula- 39 tory action by an agency deemed "necessary to complete the development of the 40 material resources of the state," or necessary for other public uses, may seek 41 a judicial determination of whether the claim comes within defined provisions 42 of section 14, article I, of the constitution of the state of Idaho relating 43 to eminent domain. Under these circumstances, the affected person is exempt 44 from the provisions of subsection (3) of this section and may seek judicial 45 review through an inverse condemnation action specifying neglect by the agency 46 to provide "just compensation" under the provisions of section 14, article I, 47 of the constitution of the state of Idaho and chapter 7, title 7, Idaho Code. 48 (6) As an alternative to immediate judicial review of a final decision on 49 a permit by an agency allowed under subsection (3) of this section, an appli- 50 cant denied a permit or aggrieved by a decision on a permit by an agency may 51 seek review by a special master before proceeding with judicial review. The 52 purpose of the special master shall be to facilitate, within existing land use 3 1 laws, ordinances and regulations, a mutually acceptable solution to a conflict 2 between an applicant and the agency regulating land use. The procedure for 3 using the special master shall be as follows: 4 (a) Within twenty-eight (28) days of the agency's determination, the 5 applicant must submit to the agency a notice of intent, to seek review by 6 a special master. 7 (b) The agency shall, within fourteen (14) days of receiving the notice 8 of intent, contact the applicant and set a date and time for joint selec- 9 tion of a special master, which meeting shall be held within thirty (30) 10 days of the agency's receipt of the notice of intent. The agency and 11 applicant must agree on the special master within one (1) week after the 12 date and time of the joint selection meeting. 13 (c) The special master selected must be a resident of the state and have 14 knowledge and experience in the area of mediation, land use permitting, 15 land planning, land economics, local and state government organization and 16 powers, and law governing the same. The special master shall serve under 17 oath that he is without bias or conflict of interest in the specific mat- 18 ter under consideration. 19 (d) Proceedings conducted or maintained under the authority of this chap- 20 ter shall be subject to chapter 3, title 9, Idaho Code, and sections 21 67-2340 through 67-2347, Idaho Code. Formal rules of evidence shall not 22 apply and all such proceedings shall be expeditious and informal. 23 (e) The special master shall meet with all affected persons and the 24 agency at least once, and more often as the special master shall deem nec- 25 essary, and review such information as the special master shall deem nec- 26 essary and render written findings within sixty (60) days of being 27 selected. The findings of the special master shall include any comments, 28 proposals, observations, conclusions or solutions which may be relevant 29 and appropriate. The findings of the special master may be used by the 30 parties in resolving contested land use claims in a manner consistent with 31 the findings. 32 (f) There shall be no judicial or other review or appeal of the findings 33 of the special master. No party shall be obligated to comply with or 34 otherwise be affected or prejudiced by the comments, proposals, observa- 35 tions, conclusions or solutions of the special master or any member or 36 segment thereof; however, in the interest of due consideration being given 37 to such proceedings and in the interest of encouraging consideration of 38 claims informally and without the necessity of litigation, the applicable 39 state and local statutes of limitation shall be tolled and not deemed to 40 run during the time that a land use matter is pending before the special 41 master and for twenty-eight (28) days thereafter. 42 (g) The agency shall, within thirty (30) days of receipt, schedule any 43 proposed solutions for hearing in accordance with the notice and hearing 44 procedures in section 67-6512, Idaho Code. 45 (h) The state of Idaho shall be responsible for the costs and fees of the 46 special master. The agency may submit claims to the board of examiners for 47 reasonable and documented fees and costs incurred as a result of review by 48 a special master. Claims for reimbursement shall be submitted within 49 sixty (60) days after the special master renders written findings. Upon 50 authorization of deficiency warrants by the board of examiners, the state 51 controller shall, after notice to the state treasurer, draw deficiency 52 warrants in the authorized amounts against the general account to reim- 53 burse the claims. 54 (7) As an alternative to any further administrative process or appeal: 55 (a) An applicant aggrieved by a development order of an agency, who has a 4 1 reasonable belief that the development order may constitute a taking under 2 state or federal law may, as an alternative to other actions allowed in 3 this section, elect to file an immediate action for declaratory judgment 4 pursuant to chapter 12, title 10, Idaho Code, seeking to have a judicial 5 determination of whether or not the development order constitutes a taking 6 pursuant to state or federal law. A person seeking a declaration pursuant 7 to this section shall not be required to exhaust the administrative reme- 8 dies of the agency prior to seeking the declaration. The petition must be 9 filed within twenty-eight (28) days of issuance of the development order. 10 A decision by the court on the issue of whether or not the development 11 order constitutes a taking must be rendered, or trial, if required, must 12 commence, no later than six (6) months from the date the petition is 13 filed. 14 (b) The respondent agency shall have forty-two (42) days to review the 15 declaration of the presiding court or jury verdict, as the case may be, 16 and determine what, if any, response it shall make; provided that if the 17 declaration of the court is a finding that the development order consti- 18 tutes a taking, the agency must, within the forty-two (42) days, either 19 determine to compensate the applicant, alter the development order after 20 notice and hearing in accordance with section 67-6509, Idaho Code, or 21 appeal pursuant to the Idaho rules of civil procedure. 22 (c) If the agency determines to compensate the applicant pursuant to a 23 judicial determination issued pursuant to this section the issue of the 24 amount of compensation due shall be scheduled for trial. 25 (d) The prevailing party shall be entitled to recover reasonable costs 26 and attorney's fees in accordance with the Idaho rules of civil procedure.
STATEMENT OF PURPOSE
RS 07806
The purpose of this legislation is to provide expeditious resolution to private property owners
of land use decisions by the state of Idaho and political subdivisions by:
1. amending the permit granting process to limit the length of time to one year that governing
boards have to issue a permit; and
2. allowing property owners, at any time in the process, to seek a declaratory judgment
of whether a development order constitutes a "taking".
In addition, the legislation provides for a mediation procedure whereby an impartial
special master reviews the case and offers resolution.
FISCAL IMPACT
If the state agrees that a mediation process is necessary in land use decisions, and because state
agencies could be involved, the claims for reimbursement of the special master proceeding are submitted
to the state for payment. The cost for the special master procedure is difficult to calculate since there is
no history; however, if one looks at the number of appeals to the governing entity as the potential number
of special master cases, the cost to the state general fund for local government could be as high as
$800,000 per year. The amount could even be greater when special master cases for state agencies are
added.
CONTACT: Representative John Stevenson, 332-1000
Lorna Jorgensen or Kerry Ellen Elliott, Idaho Association of Counties, 345-9126
STATEMENT OF PURPOSE/FISCAL IMPACT
H 606