Print Friendly HOUSE BILL NO. 606 – Real property/economic impact/owner
HOUSE BILL NO. 606
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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
02/03 House intro - 1st rdg - to printing
02/04 Rpt prt - to St Aff
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fourth Legislature Second Regular Session - 1998
IN 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 e E ach commission or governing board shall estab-
27 lish by rule a time period within which a recommendation or decision must be
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) t T he ordinance and standards used in evalu-
37 ating the application;
38 (b) t T he reasons for approval or denial; and
39 (c) t T he actions, if any, that the applicant
40 could take to obtain a permit.
41 An applicant denied a permit or aggrieved by a decision may within
42 twenty-eight (28) days after all remedies have been exhausted under local
43 ordinance seek judicial review under the procedures provided by chapter 52,
1 title 67, Idaho Code.
2 SECTION 2. That Section 67-6521, Idaho Code, be, and the same is hereby
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
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
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
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
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
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
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.
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
CONTACT: Representative John Stevenson, 332-1000
Lorna Jorgensen or Kerry Ellen Elliott, Idaho Association of Counties, 345-9126
STATEMENT OF PURPOSE/FISCAL IMPACT