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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
S1346|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN 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 4 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
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