2003 Legislation
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HOUSE BILL NO. 256 – Regulatory takings

HOUSE BILL NO. 256

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Daily Data Tracking History



H0256aa...................................................by WAYS AND MEANS
REGULATORY TAKING - Amends existing law to provide for a written taking
analysis to be prepared concerning a governmental agency's action regarding
private property, upon request; to provide procedures; to provide the
effect on a governmental action if a taking analysis is not prepared after
the request; to provide for judicial proceedings; and to provide for a
tolling of a time limitation relevant to the regulatory or administrative
action.
                                                                        
02/13    House intro - 1st rdg - to printing
02/14    Rpt prt - to Loc Gov
02/19    Rpt out - rec d/p - to 2nd rdg
02/20    2nd rdg - to 3rd rdg
02/21    To Gen Ord
02/26    Rpt out amen - to engros
02/27    Rpt engros - 1st rdg - to 2nd rdg as amen
02/28    2nd rdg - to 3rd rdg as amen
03/03    3rd rdg as amen - PASSED - 55-14-1
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Black,
      Block, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow, Cuddy,
      Deal, Denney, Eberle, Edmunson, Ellsworth, Eskridge, Field(18),
      Field(23), Gagner, Garrett, Harwood, Jones, Kellogg, Kulczyk, Lake,
      Langford, McGeachin, McKague, Meyer, Miller, Mitchell, Moyle,
      Nielsen, Raybould, Ring, Roberts, Rydalch, Sali, Schaefer, Shepherd,
      Shirley, Skippen, Smylie, Snodgrass, Stevenson, Tilman, Wills, Wood,
      Mr. Speaker
      NAYS -- Boe, Douglas, Henbest, Jaquet, Langhorst, Martinez,
      Naccarato, Ridinger, Ringo, Robison, Sayler, Smith(30), Smith(24),
      Trail
      Absent and excused -- Bieter
    Floor Sponsor - Mr. Speaker
    Title apvd - to Senate
03/04    Senate intro - 1st rdg - to Loc Gov
03/06    Rpt out - rec d/p - to 2nd rdg
03/07    2nd rdg - to 3rd rdg
03/14    3rd rdg - PASSED - 26-7-2
      AYES -- Bailey, Brandt, Bunderson, Burtenshaw, Calabretta, Cameron,
      Compton, Darrington, Gannon, Geddes, Goedde, Hill, Ingram, Keough,
      Little, Lodge, McKenzie, McWilliams, Noble, Pearce, Richardson,
      Schroeder, Sorensen, Stegner, Sweet, Williams
      NAYS -- Andreason(Rouse), Burkett, Kennedy, Malepeai, Noh, Stennett,
      Werk
      Absent and excused -- Davis, Marley
    Floor Sponsors - McKenzie & Sweet
    Title apvd - to House
03/17    To enrol
03/19    Rpt enrol - Sp signed
03/20    Pres signed
03/21    To Governor
03/27    Governor signed
         Session Law Chapter 141
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 256
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO REGULATORY TAKINGS; AMENDING SECTION 67-8002, IDAHO CODE, TO  FUR-
  3        THER  DEFINE  TERMS;  AND AMENDING SECTION 67-8003, IDAHO CODE, TO PROVIDE
  4        FOR A WRITTEN TAKING ANALYSIS TO BE  PREPARED  CONCERNING  A  GOVERNMENTAL
  5        AGENCY'S ACTION REGARDING PRIVATE PROPERTY UPON REQUEST, TO PROVIDE PROCE-
  6        DURES,   TO PROVIDE THE EFFECT ON A GOVERNMENTAL ACTION IF A TAKING ANALY-
  7        SIS IS NOT PREPARED AFTER REQUEST AND TO PROVIDE FOR JUDICIAL PROCEEDINGS.
                                                                        
  8    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  9        SECTION 1.  That Section 67-8002, Idaho Code, be, and the same  is  hereby
 10    amended to read as follows:
                                                                        
 11        67-8002.  DEFINITIONS. As used in this chapter:
 12        (1)  "Local  government"  means any city, county, taxing district or other
 13    political subdivision of state government with a governing body.
 14        (2)  "Private property" means all real property  protected  by  the  fifth
 15    amendment  and  the  fourteenth  amendment  of  the constitution of the United
 16    States or section 134, article I, of the constitution of the state of Idaho.
 17        (3)  "State agency" means the state of  Idaho  and  any  officer,  agency,
 18    board,  commission,  department or similar body of the executive branch of the
 19    state government.
 20        (4)  "Regulatory tTaking" means an uncompensated a regulatory or  adminis-
 21    trative  action  resulting in deprivation of private property that is the sub-
 22    ject of such action, whether such deprivation is total or  partial,  permanent
 23    or temporary, in violation of the state or federal constitution.
                                                                        
 24        SECTION  2.  That  Section 67-8003, Idaho Code, be, and the same is hereby
 25    amended to read as follows:
                                                                        
 26        67-8003.  PROTECTION OF PRIVATE PROPERTY. (1) The attorney  general  shall
 27    establish,  by  October  1,  1994, an orderly, consistent process, including a
 28    checklist, that better enables a state agency or local government to  evaluate
 29    proposed  regulatory  or administrative actions to assure that such actions do
 30    not result in an unconstitutional taking of  private  property.  The  attorney
 31    general  shall  review  and  update the process at least on an annual basis to
 32    maintain consistency with changes in law. All state agencies and local govern-
 33    ments shall follow the guidelines of the attorney general.
 34        (2)  The review process used by a state agency or local  government  shall
 35    be  protected  by  attorney client privilege. Nothing in this section grants a
 36    person the right to seek judicial relief requiring compliance with the  provi-
 37    sions  of  this  chapter Upon the written request of an owner of real property
 38    that is the subject of such action, such request being filed with the clerk or
 39    the agency or entity undertaking the regulatory or administrative  action  not
 40    more  than twenty-eight (28) days after the final decision concerning the mat-
 41    ter at issue, a state agency or local  governmental  entity  shall  prepare  a
                                                                        
                                           2
                                                                        
  1    written taking analysis concerning the action.  Any regulatory taking analysis
  2    prepared  hereto  shall  comply  with  the  process set forth in this chapter,
  3    including use of the checklist developed by the attorney general  pursuant  to
  4    subsection  (1)  of  this  section  and shall be provided to the real property
  5    owner no longer than forty-two (42) days after  the date of filing the request
  6    with the clerk or secretary of the agency whose action is questioned.  A regu-
  7    latory taking analysis prepared pursuant to this section shall  be  considered
  8    public information.
  9        (3)  A governmental action is voidable if a written taking analysis is not
 10    prepared  after  a  request  has been made pursuant to this chapter. A private
 11    real property owner,  whose  land  is  the  subject  of  governmental  action,
 12    affected  by a governmental action without the preparation of a requested tak-
 13    ing analysis as required by this section may seek  judicial  determination  of
 14    the  validity  of the governmental action by initiating a declaratory judgment
 15    action or other appropriate legal procedure. A suit seeking  to  invalidate  a
 16    governmental action for noncompliance with subsection (2) of this section must
 17    be  filed  in  a  district  court  in the county in which the private property
 18    owner's affected real property is located. If the affected property is located
 19    in more than one (1) county, the private property owner may file suit  in  any
 20    county in which the affected real property is located.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                                                     Moved by    Newcomb             
                                                                        
                                                     Seconded by Barrett             
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENTS TO H.B. NO. 256
                                                                        
  1                                AMENDMENT TO SECTION 1
  2        On page 1 of the printed bill, delete lines 14 through 16 and insert:
  3        "(2)  "Private property" means all real property protected  by  the  fifth
  4    amendment  and  the  fourteenth  amendment  of  the constitution of the United
  5    States or section 13, article I, of the constitution of the state of Idaho.".
                                                                        
  6                               AMENDMENTS TO SECTION 2
  7        On page 2, in line 11, delete "land" and insert: "property"; and following
  8    line 20 insert:
  9        "(4)  During the preparation of the taking analysis, any  time  limitation
 10    relevant  to  the  regulatory or administrative actions shall be tolled.  Such
 11    tolling shall cease when the taking analysis has been provided to the property
 12    owner.  Both the request for a taking analysis and the taking  analysis  shall
 13    be  part  of  the  official  record regarding the regulatory or administrative
 14    action.".
                                                                        
 15                                 CORRECTION TO TITLE
 16        On page 1, delete line 7 and insert: "SIS IS NOT PREPARED  AFTER  REQUEST,
 17    TO  PROVIDE  FOR  JUDICIAL  PROCEEDINGS AND TO PROVIDE FOR A TOLLING OF A TIME
 18    LIMITATION RELEVANT TO THE REGULATORY OR ADMINISTRATIVE ACTION.".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 256, As Amended
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO REGULATORY TAKINGS; AMENDING SECTION 67-8002, IDAHO CODE, TO  FUR-
  3        THER  DEFINE  TERMS;  AND AMENDING SECTION 67-8003, IDAHO CODE, TO PROVIDE
  4        FOR A WRITTEN TAKING ANALYSIS TO BE  PREPARED  CONCERNING  A  GOVERNMENTAL
  5        AGENCY'S ACTION REGARDING PRIVATE PROPERTY UPON REQUEST, TO PROVIDE PROCE-
  6        DURES,   TO PROVIDE THE EFFECT ON A GOVERNMENTAL ACTION IF A TAKING ANALY-
  7        SIS IS NOT PREPARED AFTER REQUEST, TO PROVIDE FOR JUDICIAL PROCEEDINGS AND
  8        TO PROVIDE FOR A TOLLING OF A TIME LIMITATION RELEVANT TO  THE  REGULATORY
  9        OR ADMINISTRATIVE ACTION.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 67-8002, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        67-8002.  DEFINITIONS. As used in this chapter:
 14        (1)  "Local government" means any city, county, taxing district  or  other
 15    political subdivision of state government with a governing body.
 16        (2)  "Private  property"  means  all  real property protected by the fifth
 17    amendment and the fourteenth amendment  of  the  constitution  of  the  United
 18    States or section 13, article I, of the constitution of the state of Idaho.
 19        (3)  "State  agency"  means  the  state  of Idaho and any officer, agency,
 20    board, commission, department or similar body of the executive branch  of  the
 21    state government.
 22        (4)  "Regulatory  tTaking" means an uncompensated a regulatory or adminis-
 23    trative action resulting in deprivation of private property that is  the  sub-
 24    ject  of  such action, whether such deprivation is total or partial, permanent
 25    or temporary, in violation of the state or federal constitution.
                                                                        
 26        SECTION 2.  That Section 67-8003, Idaho Code, be, and the same  is  hereby
 27    amended to read as follows:
                                                                        
 28        67-8003.  PROTECTION  OF  PRIVATE PROPERTY. (1) The attorney general shall
 29    establish, by October 1, 1994, an orderly,  consistent  process,  including  a
 30    checklist,  that better enables a state agency or local government to evaluate
 31    proposed regulatory or administrative actions to assure that such  actions  do
 32    not  result  in  an  unconstitutional taking of private property. The attorney
 33    general shall review and update the process at least on  an  annual  basis  to
 34    maintain consistency with changes in law. All state agencies and local govern-
 35    ments shall follow the guidelines of the attorney general.
 36        (2)  The  review  process used by a state agency or local government shall
 37    be protected by attorney client privilege. Nothing in this  section  grants  a
 38    person  the right to seek judicial relief requiring compliance with the provi-
 39    sions of this chapter Upon the written request of an owner  of  real  property
 40    that is the subject of such action, such request being filed with the clerk or
 41    the  agency  or entity undertaking the regulatory or administrative action not
                                                                        
                                           2
                                                                        
  1    more than twenty-eight (28) days after the final decision concerning the  mat-
  2    ter  at  issue,  a  state  agency or local governmental entity shall prepare a
  3    written taking analysis concerning the action.  Any regulatory taking analysis
  4    prepared hereto shall comply with the  process  set  forth  in  this  chapter,
  5    including  use  of the checklist developed by the attorney general pursuant to
  6    subsection (1) of this section and shall be  provided  to  the  real  property
  7    owner no longer than forty-two (42) days after  the date of filing the request
  8    with the clerk or secretary of the agency whose action is questioned.  A regu-
  9    latory  taking  analysis prepared pursuant to this section shall be considered
 10    public information.
 11        (3)  A governmental action is voidable if a written taking analysis is not
 12    prepared after a request has been made pursuant to  this  chapter.  A  private
 13    real  property  owner,  whose  property is the subject of governmental action,
 14    affected by a governmental action without the preparation of a requested  tak-
 15    ing  analysis  as  required by this section may seek judicial determination of
 16    the validity of the governmental action by initiating a  declaratory  judgment
 17    action  or  other  appropriate legal procedure. A suit seeking to invalidate a
 18    governmental action for noncompliance with subsection (2) of this section must
 19    be filed in a district court in the  county  in  which  the  private  property
 20    owner's affected real property is located. If the affected property is located
 21    in  more  than one (1) county, the private property owner may file suit in any
 22    county in which the affected real property is located.
 23        (4)  During the preparation of the taking analysis,  any  time  limitation
 24    relevant  to  the  regulatory or administrative actions shall be tolled.  Such
 25    tolling shall cease when the taking analysis has been provided to the property
 26    owner.  Both the request for a taking analysis and the taking  analysis  shall
 27    be  part  of  the  official  record regarding the regulatory or administrative
 28    action.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 12976
The purpose of this legislation is to establish a consistent
review process that better enables governments to evaluate
whether proposed actions may result in a taking of private
property without due process.  This act is intended to ensure
that a government catches potential mistakes.  A takings analysis
is only triggered after a written request is filed following a
final action being taken by the governmental entity.
                          FISCAL IMPACT
There may be some general fund impact as some regulatory takings
analysis may be required to be prepared that have not been in the
past despite the fact that current law requires them.  Having the
attorney client privilege for this analysis has caused some
agencies to not conduct the analysis as required by law.


Contact
Name: Bruce Newcomb 
Phone: 332-1111




STATEMENT OF PURPOSE/FISCAL NOTE                   H 256