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S1121......................................................by STATE AFFAIRS PLANNING AND ZONING - Amends existing law relating to the Local Planning Act to provide time guidelines within which a final decision on an application should be rendered; to provide for issuance of a final decision upon written demand of the applicant; to provide for payment of applicant's attorney's fees and costs if a decision is not forthcoming; to extend the time within which an applicant may seek judicial review, just compensation or both; to provide a definition of applicant; to provide for an expeditious hearing if requested by 20 affected person; to provide the time frame for rendering a decision after the hearing; to protect the rights of the applicant to have an application considered in accordance with time limitations notwithstanding a request for hearing by another affected persons; to provide that an applicant aggrieved by a decision may seek judicial review, just compensation or both within 91 days after exhaustion of all remedies under local ordinances; to require that a taking claim by an applicant be submitted to the governing board; to provide for notice and hearing on the claim; to provide time limitations; to require that the governing board follow the Regulatory Takings Act guidelines of the Attorney General in evaluating the claim and rendering its decision; and to provide that the applicant may not present a claim in state court seeking just compensation without first timely submitting the taking claim to the governing board. 02/08 Senate intro - 1st rdg - to printing 02/09 Rpt prt - to Loc Gov
S1121|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature First Regular Session - 1999IN THE SENATE SENATE BILL NO. 1121 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE LAND USE PLANNING ACT; AMENDING SECTION 67-6519, IDAHO CODE, 3 TO MAKE THE SECTION APPLICABLE TO REQUESTS FOR ZONING DISTRICT BOUNDARY 4 CHANGES, TO PROVIDE CORRECT TERMINOLOGY, TO PROVIDE TIME GUIDELINES WITHIN 5 WHICH A FINAL DECISION ON AN APPLICATION SHOULD BE RENDERED, TO PROVIDE 6 FOR ISSUANCE OF A FINAL DECISION UPON WRITTEN DEMAND OF THE APPLICANT, TO 7 PROVIDE FOR PAYMENT OF APPLICANT'S ATTORNEY'S FEES AND COSTS IF A DECISION 8 IS NOT FORTHCOMING, TO EXTEND THE TIME WITHIN WHICH AN APPLICANT MAY SEEK 9 JUDICIAL REVIEW, JUST COMPENSATION OR BOTH AND TO MAKE TECHNICAL CORREC- 10 TIONS; AMENDING SECTION 67-6520, IDAHO CODE, TO EXTEND THE TIME WITHIN 11 WHICH AN APPLICANT MAY SEEK JUDICIAL REVIEW, JUST COMPENSATION OR BOTH AND 12 TO MAKE TECHNICAL CORRECTIONS; AND AMENDING SECTION 67-6521, IDAHO CODE, 13 TO PROVIDE A DEFINITION OF APPLICANT, TO PROVIDE FOR AN EXPEDITIOUS HEAR- 14 ING IF REQUESTED BY TWENTY AFFECTED PERSONS, TO PROVIDE THE TIME FRAME 15 FOR RENDERING A DECISION AFTER THE HEARING, TO PROTECT THE RIGHTS OF THE 16 APPLICANT TO HAVE AN APPLICATION CONSIDERED IN ACCORDANCE WITH TIME LIMI- 17 TATIONS NOTWITHSTANDING A REQUEST FOR HEARING BY ANOTHER AFFECTED PERSON, 18 TO PROVIDE THAT AN APPLICANT AGGRIEVED BY A DECISION MAY SEEK JUDICIAL 19 REVIEW, JUST COMPENSATION OR BOTH WITHIN NINETY-ONE DAYS AFTER EXHAUSTION 20 OF ALL REMEDIES UNDER LOCAL ORDINANCES, TO DELETE REDUNDANT PROVISIONS, TO 21 REQUIRE THAT A TAKING CLAIM BY AN APPLICANT BE SUBMITTED TO THE GOVERNING 22 BOARD, TO PROVIDE FOR NOTICE AND HEARING ON THE CLAIM, TO PROVIDE TIME 23 LIMITATIONS, TO REQUIRE THAT THE GOVERNING BOARD FOLLOW THE REGULATORY 24 TAKINGS ACT GUIDELINES OF THE ATTORNEY GENERAL IN EVALUATING THE CLAIM AND 25 RENDERING ITS DECISION, TO PROVIDE A DEFINITION AND TO PROVIDE THAT THE 26 APPLICANT MAY NOT PRESENT A CLAIM IN STATE COURT SEEKING JUST COMPENSATION 27 WITHOUT FIRST TIMELY SUBMITTING THE TAKING CLAIM TO THE GOVERNING BOARD. 28 Be It Enacted by the Legislature of the State of Idaho: 29 SECTION 1. That Section 67-6519, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 67-6519. PERMIT S -- REQUESTS FOR ZONING DISTRICT BOUNDARY CHANGES 32 --GRANTINGPROCESS. (1) As part of ordi- 33 nances required or authorizedunderpursuant to 34 this chapter, a procedure shall be established for processing in a timely man- 35 ner applications for permits or requests for zoning district boundary 36 changes for which a reasonable fee may be charged. Each application for 37 a permit or zoning district boundary change required or autho- 38 rizedunderpursuant to this chapter shall first be 39 submitted to the zoning or planning and zoning commission for its recommenda- 40 tion or decision if a commission has been established . The com- 41 mission shall have a reasonable time fixed by the governing board to examine 42 the application before the commission makes its decision on the permit 43 or zoning district boundary change or makes its recommendation to the 2 1 governing board. Each commission or governing boardshall2 may establish byruleresolution a time 3 period within which a recommendation or decisionmust4 should be made. Notwithstanding the time frame established by 5 local resolution, a final decision on an application should be rendered not 6 later than one hundred eighty-two (182) days after an applicant submits a 7 completed application. If a decision has not been rendered within that time 8 the applicant may submit a written demand for a final decision and the final 9 decision must be issued within sixty-three (63) days of receipt of the 10 applicant's demand. If no decision is forthcoming within the time frame set 11 forth herein, the city or county shall be responsible for an applicant's rea- 12 sonable attorney's fees and costs incurred while seeking to compel a final 13 decision. 14 (2) Whenever a governing board or zoning or planning and 15 zoning commission grants or denies a permit, it shall specify: 16 (a)tT he ordinance and standards used in evalu- 17 ating the application; 18 (b)tT he reasons for approval or denial; and 19 (c)tT he actions, if any, that the applicant 20 could take to obtain a permit. 21 (3) An applicant denied a permit or aggrieved by a decision 22 may withintwenty-eightninety-one (282391 ) days after all remedies have been exhausted under local 24 ordinance seek judicial review under the procedures provided by chapter 52, 25 title 67, Idaho Code , seek just compensation as provided in section 26 67-6521, Idaho Code, or both . 27 SECTION 2. That Section 67-6520, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 67-6520. HEARING EXAMINERS. Hearing examiners include professionally 30 trained or licensed staff planners, engineers, or architects. If authorized by 31 local ordinance adopted, amended, or repealed in accordance with the notice 32 and hearing procedures provided in section 67-6509, Idaho Code, hearing exam- 33 iners may be appointed by a governing board or zoning or planning and zoning 34 commission for hearing applications for subdivision, special use and variance 35 permits and requests for zoning district boundary changes which are in accor- 36 dance with the plan. Notice, hearing, and records before the examiner shall be 37 as provided in this chapter for the zoning or planning and zoning commission. 38 Whenever a hearing examiner hears an application, he shall grant or deny the 39 application and submit to the governing board or zoning or planning and zoning 40 commission his decision, which shall specify: 41 (a1 )tT he ordinance 42 and standards used in evaluating the application; 43 (b2 )tT he reasons for 44 recommendation; and 45 (c3 )tT he actions, if 46 any, that the applicant could take to obtain a permit or zoning district 47 boundary change in accordance with the plan. 48 An applicant denied a permit or aggrieved by a decision may within49twenty-eightninety-one (2891 ) 50 days after allappellateremedies have been exhausted under local 51 ordinance seek judicial review as provided by chapter 52, title 67, Idaho 52 Code , seek just compensation as provided in section 67-6521, Idaho Code, 53 or both . 3 1 SECTION 3. That Section 67-6521, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 67-6521. ACTIONS BY APPLICANTS AND OTHER AFFECTED PERSONS 4 -- CLAIMS FOR JUST COMPENSATION BASED ON A REGULATORY TAKING -- TAKING 5 CLAIM REQUIREMENTS . 6 (1) (a) As used herein, an affected person shall mean one having an 7 interest in real property which may be adversely affected by the issuance 8 or denial of a permit authorizing the development. An "applicant" 9 shall mean an affected person having an ownership interest in real prop- 10 erty who seeks a permit authorizing land use or development or a zoning 11 district boundary change. 12 (b) Any affected person may at any time prior to final action on a permit 13 required or authorized under this chapter, if no hearing has been held on 14 the application, petition the commission or governing board in writing to 15 hold a hearing pursuant to section 67-6512, Idaho Code; provided, however, 16 that if twenty (20) affected persons petition for a hearing, the hearing 17 shall be held as expeditiously as possible . 18 (c) After a hearing, the commission or governing board may: 19 (i) Grant or deny a permit; or 20 (ii) Delay such a decision for a definite period of time for further 21 study or hearing.Each commission or governing board shall22establish by rule and regulation a time period within which a recom-23mendation or decision must be made.24 (iii) The time frame for rendering a decision shall be governed 25 by local ordinance or resolution or by the time limitations estab- 26 lished by section 67-6519, Idaho Code. No request or petition for 27 hearing by an affected person other than an applicant may modify the 28 rights of an applicant to have its permit or zoning district boundary 29 change request considered in accordance with the time limitations 30 established by section 67-6519, Idaho Code. 31 (d) An affected person , other than an applicant, aggrieved 32 by a decision may within twenty-eight (28) days after all remedies have 33 been exhausted under local ordinances seek judicial review as provided by 34 chapter 52, title 67, Idaho Code. An applicant aggrieved by a deci- 35 sion, within ninety-one (91) days after all remedies have been exhausted 36 under local ordinances, may seek judicial review as provided by chapter 37 52, title 67, Idaho Code, may seek just compensation as provided in this 38 section, or both. 39 (2)(a)Authority to exercise the regulatory power of zoning 40 in land use planning shall not simultaneously displace coexisting eminent 41 domain authority granted under section 14, article I, of the constitution of 42 the state of Idaho and chapter 7, title 7, Idaho Code. 43(b) An affected person claiming "just compensation" for a perceived44"taking," the basis of the claim being that a specific zoning action or45permitting action restricting private property development is actually a46regulatory action by local government deemed "necessary to complete the47development of the material resources of the state," or necessary for48other public uses, may seek a judicial determination of whether the claim49comes within defined provisions of section 14, article I, of the constitu-50tion of the state of Idaho relating to eminent domain. Under these circum-51stances, the affected person is exempt from the provisions of subsection52(1) of this section and may seek judicial review through an inverse con-53demnation action specifying neglect by local government to provide "just54compensation" under the provisions of section 14, article I, of the con-4 1stitution of the state of Idaho and chapter 7, title 7, Idaho Code.2 (3) In addition to the judicial review procedure authorized in this 3 section and sections 67-6519 and 67-6520, Idaho Code, an applicant for a per- 4 mit or zoning district boundary change required or authorized pursuant to this 5 chapter may seek just compensation for a regulatory taking upon showing that 6 applicable constitutional standards have been violated. An applicant alleging 7 that the final decision of the public entity constitutes a taking must first 8 present a taking claim to the governing board within twenty-eight (28) days 9 after the final decision has been rendered and before seeking just compensa- 10 tion. The notice of a taking claim shall identify with specificity all 11 grounds upon which the applicant alleges a taking. The governing board shall 12 conduct a public hearing in response to the notice in accordance with the pro- 13 cedures specified in section 67-6509, Idaho Code, at which the applicant shall 14 present the taking claim and other interested parties may be heard. Within 15 sixty-three (63) days after presentation of the completed taking claim the 16 governing board shall render a decision in writing, either recognizing that a 17 taking has occurred and stating what remedial action or compensation should be 18 accorded the applicant, or finding that no taking has occurred. The decision 19 made by the governing board shall set forth the reasons therefor. In evaluat- 20 ing the taking claim, the governing board shall follow the Idaho regulatory 21 takings act guidelines of the attorney general. For purposes of this section, 22 "taking" shall be defined as an uncompensated deprivation of private property 23 in violation of the state or federal constitution, as provided in section 24 67-8002, Idaho Code. A taking claim shall not be considered ripe for judicial 25 consideration until it has been presented to the governing board as provided 26 in this subsection. No applicant alleging a taking by virtue of the applica- 27 tion of land use regulations shall be allowed to present a claim in state 28 court seeking just compensation without timely following the procedures set 29 forth in this subsection.
STATEMENT OF PURPOSE
RS08877
INTERIM COMMITTEE ON PRIVATE PROPERTY RIGHTS RECCOMMENDS:
The Land use Planning Act establishes 180 day time frame for
decision making which can be called to a close by the applicant.
Anytime after the 180 days applicant can demand a decision within
60 days.
A Takings Claim first be presented to the governing board,
that the governing board hold a public hearing and that evaluation
of the claim be pursuant to the Attorney Generals Regulatory
Takings Act Guidelines. That the review process be completed and
decision be rendered within 91 days (13 weeks).
FISCAL NOTE
No Fiscal Impact to the General Fund.
CONTACT: Senator Judi Danielson 332-1347
Jim Kempton 332-1250
Susan Mather 334-4858
STATEMENT OF PURPOSE/ FISCAL NOTE S1121