1998 Legislation
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SENATE BILL NO. 1346 – Private correctional facilty siting

SENATE BILL NO. 1346

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Daily Data Tracking History



S1346......................................by LOCAL GOVERNMENT AND TAXATION
PRIVATE CORRECTIONAL FACILITIES - Adds to existing law to provide a siting
procedure for private correctional facilities.

01/28    Senate intro - 1st rdg - to printing
01/29    Rpt prt - to Loc Gov

Bill Text


S1346


                                                                        
 ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
Fifty-fourth Legislature                 Second Regular Session - 1998
                                                                        

                                      IN THE SENATE

                                   SENATE BILL NO. 1346

                        BY LOCAL GOVERNMENT AND TAXATION COMMITTEE

 1                                        AN ACT
 2    RELATING TO PRIVATE CORRECTIONAL FACILITY SITING;  AMENDING  TITLE  20,  IDAHO
 3        CODE, BY THE ADDITION OF A NEW CHAPTER 8, TITLE 20, IDAHO CODE, TO PROVIDE
 4        A  SHORT TITLE, TO PROVIDE LEGISLATIVE INTENT, TO DEFINE TERMS, TO REQUIRE
 5        A SITING LICENSE, TO PROVIDE THE EXPANSION, ENLARGEMENT OR ALTERATION OF A
 6        PRIVATE CORRECTIONAL FACILITY, TO PROVIDE FOR SITE REVIEW PANELS, MEMBERS,
 7        CHAIRMAN, QUORUM, MEETINGS AND STAFFING, TO PROVIDE FOR A  SITING  LICENSE
 8        APPLICATION,  FEES  AND  RULES,  TO  PROVIDE DUTIES OF THE DIRECTOR OF THE
 9        DEPARTMENT OF CORRECTION AND TO PROVIDE PROCEDURES, TO PROVIDE  FOR  LOCAL
10        RESTRICTIONS  ON PRIVATE CORRECTIONAL FACILITIES, TO PROVIDE FOR COORDINA-
11        TION AND INTEGRATION WITH STATE AND FEDERAL LAW, TO PROVIDE THAT  INFORMA-
12        TION  RECEIVED IS A PUBLIC RECORD, AND TO PROVIDE A REMEDY FOR DEVALUATION
13        OF PROPERTY CAUSED BY APPROVED FACILITIES.

14    Be It Enacted by the Legislature of the State of Idaho:

15        SECTION 1.  That Title 20, Idaho Code, be, and the same is hereby  amended
16    by  the addition thereto of a  NEW CHAPTER , to be known and desig-
17    nated as Chapter  8, Title  20, Idaho Code, and to read as follows:

18                                      CHAPTER 8
19                         PRIVATE CORRECTIONAL FACILITY SITING

20        20-801.  SHORT TITLE. This chapter shall be known and may be cited as  the
21    "State Private Correctional Facility Siting Act."

22        20-802.  LEGISLATIVE  INTENT. The legislature of the state of Idaho hereby
23    finds that adverse local impacts can occur from the siting of private  correc-
24    tional  facilities and that this is a matter of statewide concern, so the pro-
25    visions of this chapter are therefore enacted to provide an  effective  method
26    of establishing such sites.

27        20-803.  DEFINITIONS. As used in this chapter:
28        (1)  "Department" means the department of correction.
29        (2)  "Director" means the director of the department of correction.
30        (3)  "Panel"  means the site review panel created in section 20-806, Idaho
31    Code.
32        (4)  "Private correctional facility" means a facility or institution owned
33    by an individual or other private entity which shall confine  persons  adjudi-
34    cated  guilty  of a criminal offense and sentenced to a term of confinement by
35    the courts of a state,  a territory, a  province  of  Canada,  or  the  United
36    States.

37        20-804.  SITING  LICENSE  REQUIRED.  No  person  shall  construct, expand,
38    enlarge or alter a private correctional facility without a siting license from
39    the department. The owner or operator of the facility or site rather than  the


                                          2

 1    builder shall be responsible for obtaining the license.

 2        20-805.  EXPANSION,  ENLARGEMENT  OR  ALTERATION  OF  PRIVATE CORRECTIONAL
 3    FACILITY -- REVIEW -- SITING LICENSES. (1) A private correctional facility  in
 4    existence  on January 1, 1999, shall not require a review under the provisions
 5    of this chapter.
 6        (2)  The expansion, enlargement, or alteration of a  private  correctional
 7    facility in existence on January 1, 1999, constitutes a new proposal for which
 8    a siting license is required.

 9        20-806.  SITE REVIEW PANELS -- MEMBERS, CHAIRMAN, QUORUM, MEETINGS, STAFF.
10    (1)  A  site  review  panel shall be established to ensure public input in the
11    licensing process and to recommend to the director conditions which should  be
12    included  in the siting license. Such conditions may include measures to miti-
13    gate public concerns regarding a private correctional facility, including  the
14    expansion of a private correctional facility in existence on January 1, 1999.
15        (2)  The  following  seven  (7)  members shall serve on every panel estab-
16    lished to review a siting license application:
17        (a)  Three (3) members shall be representatives of  this  state,  one  (1)
18        each  from the department of correction, the department of law enforcement
19        and the Idaho transportation department. A member who is a  representative
20        of  this  state shall be appointed by each of the directors of the respec-
21        tive departments and a vacancy shall be filled as necessary by the  appro-
22        priate  director.  A  member who is a representative of the state shall be
23        appointed to serve on site review panels for a period of two (2) years and
24        may be appointed for additional two (2) year periods. In addition, a  mem-
25        ber  who  is a representative of the state may serve beyond the expiration
26        of the member's two (2) year period of service for so  long  a  period  of
27        time  as  is  necessary  to complete action on siting license applications
28        pending at the expiration of the member's term.
29        (b)  Four (4) members shall be public members appointed  by  the  governor
30        with  the advice and consent of the senate. One (1) public member shall be
31        a  chief of police or a county sheriff, one (1) a licensed architect,  and
32        one  (1) a representative of  prosecuting attorneys. One (1) public member
33        shall be on the faculty of an institution  of  higher  education  in  this
34        state.  A  vacancy shall be filled for the unexpired portion of the period
35        in the same manner as the original appointment. A member who is  a  public
36        member  shall  be appointed to serve on site review panels for a period of
37        three (3) years and  may  be  appointed  for  additional  three  (3)  year
38        periods.
39        (3)  The following four (4) members shall serve on a panel which is estab-
40    lished to consider a particular siting license application:
41        (a)  Two  (2) members, at least one (1) of whom shall be a resident of the
42        city, shall be appointed by the city council of the city  located  closest
43        to  or  in  which  the  private  correctional  facility  is proposed to be
44        located. The members serving pursuant to this subsection shall serve until
45        the particular siting license  application  subject  to  their  review  is
46        approved, or until the application is rejected and is no longer subject to
47        their review.
48        (b)  Two  (2)  members  shall be residents of the county where the private
49        correctional facility  is proposed to be located and shall be appointed by
50        the board of commissioners of the county. The members serving pursuant  to
51        this  subsection  shall serve until the particular siting license applica-
52        tion subject to their review is approved,  or  until  the  application  is
53        rejected and is no longer subject to their review.


                                          3

 1        (4)  The  member  appointed  as  the  representative of the state from the
 2    department of correction shall be chairman of each panel and shall notify  the
 3    city  council  of  the nearest city and the board of county commissioners of a
 4    siting license application filed with the department, and shall  instruct  the
 5    city  and  county  to  appoint  the  necessary representatives to a panel. The
 6    chairman shall be a nonvoting member of the panel except when  the  chairman's
 7    vote is necessary to break a tie vote.
 8        (5)  Six  (6)  of  the eleven (11) members of the panel shall constitute a
 9    quorum for the transaction of business of the panel and the concurrence of six
10    (6) members of the panel shall constitute a legal action  of  the  panel.  All
11    meetings  of  the  panel shall be conducted pursuant to the state open meeting
12    law.
13        (6)  The director shall make staff available to assist the panel in carry-
14    ing out its responsibilities.

15        20-807.  SITING LICENSE APPLICATION -- FEE -- RULES.  (1)  An  application
16    for a siting license shall include:
17        (a)  The name and residence of the applicant;
18        (b)  The location of the proposed private correctional facility;
19        (c)  Engineering  or hydrogeologic information to indicate compliance with
20        technical criteria;
21        (d)  A description of the types of  prisoners proposed to be housed at the
22        facility;
23        (e)  Information showing that harm to scenic, historic, cultural or recre-
24        ational values is not substantial or can be mitigated;
25        (f)  Information showing that the risk  and  impact  of   an  accident  or
26        escape of inmates is not substantial or can be mitigated; and
27        (g)  Information  showing  that  the  impact  on  local  government is not
28        adverse regarding health, safety, cost and consistency with local planning
29        and existing development or can be mitigated.
30        (2)  Within thirty (30) days after receipt of the application, the  direc-
31    tor  shall determine whether it is complete. If it is not complete, the direc-
32    tor shall notify the applicant and state the areas of deficiency.
33        (3)  The application shall be accompanied by a  siting  license  fee.  The
34    director shall establish by rule, the scale for determining the siting license
35    application  fee. The fee shall not exceed seven thousand five hundred dollars
36    ($7,500) and shall be based on the cost to the  department  of  reviewing  the
37    siting  license  application.  The  scale  shall  be  based on characteristics
38    including the site size, projected number of inmates and hydrogeological char-
39    acteristics surrounding the site. Fees received pursuant to this  section  may
40    be  expended by the director to pay the actual, reasonable and necessary costs
41    incurred by the department in acting upon a siting  license  application.  The
42    director  may promulgate rules  in compliance with chapter 52, title 67, Idaho
43    Code, in order to implement and administer the provisions of this section.

44        20-808.  DUTIES OF DIRECTOR UPON RECEIPT OF A SITING  LICENSE  APPLICATION
45    --  RECOMMENDATION. (1) Upon receipt of a complete siting license application,
46    the director or an authorized representative of the director shall:
47        (a)  Immediately notify the  permanent  panel  members,  the  city  and/or
48        county  in  which the private correctional facility is located or proposed
49        to be located. The notice shall describe the procedure  and  the  schedule
50        based on the complexity of the application by which the siting license may
51        be approved or denied.
52        (b)  Immediately  publish a notice that the application has been received,
53        as provided in section 60-109, Idaho Code, in  a  newspaper  having  major


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 1        circulation  in the county and the immediate vicinity of the proposed pri-
 2        vate correctional  facility. The required published notice shall contain a
 3        map indicating the location of the proposed private correctional  facility
 4        and  shall  contain  a description of the proposed action and the location
 5        where the complete application package may be reviewed  and  where  copies
 6        may be obtained. The notice shall describe the procedure by which the sit-
 7        ing license may be granted.
 8        (2)  Upon  notification  by  the  director, the chairman shall immediately
 9    notify the representatives of the state to the panel and the  public  members.
10    The  chairman  shall  also  notify  the  applicable  county and city for their
11    appointment of members as provided in subsection (3) of section 20-806,  Idaho
12    Code. Within thirty (30) days after the notification, the board of commission-
13    ers  of  the  county and the city council shall select the members to serve on
14    the panel. The panel shall be created at that time  and  notification  of  the
15    creation of the panel shall be made to the chairman.
16        (3)  If  technical  criteria are not applicable, the director shall submit
17    to the panel a draft site license  which  includes  conditions  based  on  the
18    information submitted in the application. The director shall also recommend to
19    the  panel  that  the license be issued or denied. The draft license submittal
20    shall be made within sixty-five (65) days  after  a  complete  application  is
21    received.
22        (4)  If technical criteria as adopted include applicable building and life
23    safety  codes,  the director shall determine if the proposed facility complies
24    with the criteria. Such determination shall be  made  within  forty-five  (45)
25    days  after  a complete application is received. If the technical criteria are
26    not met, the director shall deny the license and the panel shall be disbanded.
27    If the technical criteria are met, the director shall submit to  the  panel  a
28    draft  site license which includes conditions regarding the technical criteria
29    to be met. These conditions may be more stringent than those in  the  plan  if
30    warranted  by  information  provided in the application. The draft license may
31    also include additional conditions based on the information submitted  in  the
32    application  regarding  the  construction  of the facility. The director shall
33    also recommend to the panel that the license be issued or denied.  The  denial
34    or  draft  license submittal shall be made within sixty-five (65) days after a
35    complete application is received. The director shall  immediately  notify  the
36    applicant and the chairman of the panel of the denial or draft license submit-
37    tal.
38        (5)  Within  ten  (10)  days after submittal of a draft license, the panel
39    shall meet to review and establish a timetable for the  consideration  of  the
40    draft site license.
41        (6)  The panel shall:
42        (a)  Set  a date and arrange for publication of notice of a public hearing
43        in a newspaper having major circulation in the vicinity  of  the  proposed
44        site, at its first meeting. The public notice shall:
45             (i)  Contain  a  map  indicating the location of the proposed private
46             correctional  facility, a description of the proposed action, and the
47             location where the application for a siting license may  be  reviewed
48             and where copies may be obtained;
49             (ii) Identify  the  time,  place  and location for the public hearing
50             held to receive public comment and input on  the  application  for  a
51             siting license;
52        (b)  Publish  the notice not less than thirty (30) days before the date of
53        the public hearing and the notice shall be, at a minimum,  a  twenty  (20)
54        days' notice as provided in section 60-109, Idaho Code.
55        (7)  Comment  and  input on the proposed private correctional facility may


                                          5

 1    be presented orally or in writing at the public hearing, and shall continue to
 2    be accepted in writing by the panel for fifteen (15)  days  after  the  public
 3    hearing date.
 4        (8)  The panel shall consider, among other things:
 5        (a)  The risk and impact of accident or escape of inmates;
 6        (b)  The  impact  on  local units of government where the proposed private
 7        correctional facility is to be located in terms of  health,  safety,  cost
 8        and  consistency  with  local planning and existing development. The panel
 9        shall also consider city and county ordinances, permits or other  require-
10        ments  and  their  potential  relationship to the proposed private correc-
11        tional facility;
12        (c)  The nature of the probable environmental impact.
13        (9)  The panel's primary responsibility shall be to consider the  concerns
14    and  objections submitted by the public. The panel shall facilitate efforts to
15    provide that the concerns and objections are mitigated by proposing additional
16    conditions regarding the construction of the facility. The panel  may  propose
17    conditions  which  integrate  the provisions of the city or county ordinances,
18    permits or requirements.
19        (10) Within ninety (90) days after creation, the panel shall recommend  to
20    the  director that the license be issued as proposed, issued with different or
21    additional conditions, or denied. The director shall  make  a  final  decision
22    within  thirty  (30)  days after receipt of the panel's recommendation. If the
23    panel recommends different or additional conditions, a clear statement of  the
24    need  for the condition must be submitted to the director. If the panel recom-
25    mends denial, a clear statement of the reasons for the denial must be  submit-
26    ted to the director.
27        (11) The  director shall issue a siting license if the director determines
28    that:
29        (a)  The technical criteria are met;
30        (b)  The harm to scenic, zoning and other local values is not  substantial
31        or can be mitigated by appropriate license conditions;
32        (c)  The risk and impact of accident and escape of inmates from the facil-
33        ity is not substantial or can be mitigated with appropriate license condi-
34        tions;
35        (d)  The  impact  on  local  government  is  not adverse regarding health,
36        safety, cost and consistency with local planning and existing  development
37        or can be mitigated with appropriate license conditions; and
38        (e)  No  other major concerns have been raised by the panel regarding pub-
39        lic health or the environment which cannot be mitigated by special license
40        conditions.
41        (12) An applicant denied a siting license pursuant to this chapter or  any
42    person  aggrieved  by a decision of the director pursuant to this chapter may,
43    within twenty-eight (28) days, after all remedies have  been  exhausted  under
44    the provisions of this chapter, seek judicial review under the procedures pro-
45    vided in chapter 52, title 67, Idaho Code.
46        (13) No permit or license allowing the owner to finally open or occupy the
47    site  of a private correctional facility  shall be issued unless the applicant
48    has been issued a site license.

49        20-809.  LOCAL RESTRICTIONS ON PRIVATE CORRECTIONAL FACILITIES.  An  ordi-
50    nance,  permit  requirement or other requirement of a city or county may  pro-
51    hibit the construction of a private correctional  facility  in  that  city  or
52    county.

53        20-810.  COORDINATION  AND  INTEGRATION  WITH  STATE  AND FEDERAL LAW. The


                                          6

 1    director shall coordinate and integrate the provisions  of  this  chapter  for
 2    purposes  of administration and enforcement with appropriate state and federal
 3    law.

 4        20-811.  INFORMATION OBTAINED -- PUBLIC RECORD. (1) Except as provided  in
 5    subsection  (2)  of this section, information obtained by the department under
 6    the provisions of this chapter shall be deemed to be a public record.
 7        (2)  A person regulated under the provisions of this chapter may designate
 8    a record, site license application, other  information,  or  a  portion  of  a
 9    record,  site  license  application,  or  other  information  furnished  to or
10    obtained by the department or its agents, as being only for  the  use  of  the
11    department  and  the  panel.  The material shall then be subject to disclosure
12    according to chapter 3, title 9, Idaho Code.

13        20-812.  REMEDY FOR DEVALUATION OF PROPERTY CAUSED BY  APPROVED  FACILITY.
14    (1)  Before  construction  of  a private correctional facility, but in no case
15    later than nine (9) months after approval of a site  license  for  a   private
16    correctional   facility, any owner or user of real property adversely affected
17    by approval may bring an action in a district court of competent  jurisdiction
18    against  the  owner of the proposed facility. If the court determines that the
19    planned construction and operation of the private correctional  facility  will
20    result in the devaluation of the plaintiff's property or will otherwise inter-
21    fere  with the plaintiff's rights in the property, it shall order the owner to
22    compensate the plaintiff in an amount equal to the value  of  the  plaintiff's
23    loss.
24        (2)  The  remedy  provided  in  subsection (1) of this section shall be in
25    addition to other remedies provided by law for owners or  users  aggrieved  by
26    the proposed construction and operation of a private correctional  facility.
27        (3)  Nothing  in  this  chapter shall prevent an owner or user of property
28    aggrieved by the construction and operation of a facility from seeking damages
29    that result from a subsequent modification of the design  or  operation  of  a
30    facility  but  such damages are limited to the incremental damage that results
31    from the modification. Any action for such damages under this section shall be
32    brought within nine (9) months after the siting license  for  modification  of
33    the design or operation of the facility is approved.
34        (4)  For  the  purpose  of  assessing  damages,  the  value  of the rights
35    affected is fixed at the date the siting license is approved  and  the  actual
36    value  of  the  right  at  that date is the basis for the determination of the
37    amount of damage suffered, and no improvements to the property  subsequent  to
38    the  date of approval of the plans shall be included in the assessment of dam-
39    ages. Similarly, for any subsequent modification of a facility, value is fixed
40    at the date of approval of the siting license.
41        (5)  The owner or operator of a proposed facility may, at any time  before
42    an  award of damages, abandon the construction or operation of the facility or
43    any modification and cause the action to be dismissed. As a condition of  dis-
44    missal,  however, the owner or operator shall compensate the plaintiff for any
45    actual damage sustained as a result of  construction    or  operation  of  the
46    facility  before  abandonment  together  with  court  costs  and  a reasonable
47    attorney's fee.
48        (6)  Nothing in this chapter shall prevent  a  court  from  enjoining  any
49    activity  at  a  private  correctional  facility that is outside of, or not in
50    compliance with, the terms and conditions of an approved  site license  pursu-
51    ant to this chapter or that otherwise violates adopted building, or other life
52    safety codes.

Statement of Purpose / Fiscal Impact


    





                            STATEMENT OF PURPOSE
    
                                 RS07550C1
    
    This measure is designed to allow the state and local 
    governments to participate in a public process for site 
    selection of any private prison wishing to locate within the 
    State of Idaho.
    
                                FISCAL NOTE
    
    The expenses of the Board created by this legislation will 
    depend on the number and complexity of applications to site 
    private prisons, but will be negligible compared to the 
    importance of public input on controversial policy decisions.
    
    CONTACT: Sen. Stennett
             332-1358
    
    STATEMENT OF PURPOSE/FISCAL NOTE
    
    Bill No S1346