2003 Legislation
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HOUSE BILL NO. 257 – Regulatory taking analysis, when

HOUSE BILL NO. 257

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Daily Data Tracking History



H0257.....................................................by WAYS AND MEANS
REGULATORY TAKING ANALYSIS - Amends existing law to provide that various
actions under the Local Land Use Planning Act may be subject to a
regulatory taking analysis; and to revise notice procedures and the ability
of landowners to participate in public hearings.
                                                                        
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
03/03    Rpt out - w/o amen - to 3rd rdg
    3rd rdg - PASSED - 51-19-0
      AYES -- Barraclough, Barrett, Bauer, Bedke, Bell, Black, Block, Bolz,
      Bradford, Campbell, Cannon, Clark, Collins, Crow, Deal, Denney,
      Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Gagner,
      Garrett, Harwood, Kellogg, Kulczyk, Lake, Langford, McGeachin,
      McKague, Meyer, Miller, Moyle, Nielsen, Raybould, Ring, Roberts,
      Rydalch, Sali, Schaefer, Shepherd, Shirley, Skippen, Smylie,
      Snodgrass, Stevenson, Tilman, Wills, Wood, Mr. Speaker
      NAYS -- Andersen, Bieter, Boe, Cuddy, Douglas, Henbest, Jaquet,
      Jones, Langhorst, Martinez, Mitchell, Naccarato, Ridinger, Ringo,
      Robison, Sayler, Smith(30), Smith(24), Trail.
      Absent and excused -- None
    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 - 25-8-2
      AYES -- Bailey, Brandt, Bunderson, Burtenshaw, 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, Calabretta, 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 142
         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. 257
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE LOCAL LAND USE PLANNING ACT; AMENDING SECTION  67-6511,  IDAHO
  3        CODE,  TO PROVIDE THAT AMENDMENTS OF ZONING ORDINANCES MAY BE SUBJECT TO A
  4        REGULATORY TAKING ANALYSIS,  TO REVISE NOTICE REQUIREMENTS  AND  TO  ALLOW
  5        PARTICIPATION  IN  A  PUBLIC  HEARING BY CERTAIN PROPERTY OWNERS; AMENDING
  6        SECTION 67-6512, IDAHO CODE, TO PROVIDE THAT DENIAL OR APPROVAL OF SPECIAL
  7        USE PERMITS MAY BE SUBJECT TO A  REGULATORY  TAKING  ANALYSIS,  TO  REVISE
  8        NOTICE REQUIREMENTS AND TO ALLOW PARTICIPATION IN A PUBLIC HEARING BY CER-
  9        TAIN  PROPERTY  OWNERS;  AMENDING  SECTION 67-6513, IDAHO CODE, TO PROVIDE
 10        THAT APPROVAL OR DENIAL OF A SUBDIVISION PERMIT MAY BE SUBJECT TO A  REGU-
 11        LATORY  TAKING  ANALYSIS; AMENDING SECTION 67-6515, IDAHO CODE, TO PROVIDE
 12        THAT APPROVAL OR DENIAL OF A PLANNED UNIT DEVELOPMENT PERMIT MAY  BE  SUB-
 13        JECT  TO  A  REGULATORY  TAKING  ANALYSIS; AMENDING SECTION 67-6516, IDAHO
 14        CODE, TO PROVIDE THAT DENIAL OR APPROVAL OF A VARIANCE PERMIT  MAY BE SUB-
 15        JECT TO A REGULATORY TAKING  ANALYSIS;  AMENDING  SECTION  67-6523,  IDAHO
 16        CODE,  TO INCREASE THE PERIOD OF TIME AN EMERGENCY ORDINANCE OR MORATORIUM
 17        MAY BE EFFECTIVE, TO PROVIDE THAT RESTRICTIONS MAY NOT BE IMPOSED FOR CON-
 18        SECUTIVE PERIODS AND TO REVISE PROCEDURES; AMENDING SECTION 67-6524, IDAHO
 19        CODE, TO PROVIDE THAT AN INTERIM ORDINANCE OR MORATORIUM MAY BE  EFFECTIVE
 20        FOR  NOT  MORE THAN ONE CALENDAR YEAR AND TO PROVIDE PROCEDURES TO SUSTAIN
 21        RESTRICTIONS ESTABLISHED BY AN INTERIM ORDINANCE OR MORATORIUM; AND AMEND-
 22        ING SECTION 67-6535, IDAHO CODE, TO PROVIDE THAT EVERY FINAL DECISION REN-
 23        DERED CONCERNING A SITE SPECIFIC LAND USE REQUEST MAY BE SUBJECT TO A REG-
 24        ULATORY TAKING ANALYSIS.
                                                                        
 25    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 26        SECTION 1.  That Section 67-6511, Idaho Code, be, and the same  is  hereby
 27    amended to read as follows:
                                                                        
 28        67-6511.  ZONING  ORDINANCE.  Each  governing  board  shall,  by ordinance
 29    adopted, amended, or repealed in accordance with the notice and hearing proce-
 30    dures provided under section 67-6509, Idaho Code, establish within its  juris-
 31    diction  one (1) or more zones or zoning districts where appropriate. The zon-
 32    ing districts shall be in accordance  with  the  policies  set  forth  in  the
 33    adopted comprehensive plan.
 34        Within  a  zoning  district,  the governing board shall where appropriate,
 35    establish standards to regulate and restrict the height,  number  of  stories,
 36    size, construction, reconstruction, alteration, repair or use of buildings and
 37    structures;  percentage  of  lot  occupancy,  size  of courts, yards, and open
 38    spaces; density of population; and the  location  and  use  of  buildings  and
 39    structures. All standards shall be uniform for each class or kind of buildings
 40    throughout  each  district,  but  the standards in one (1) district may differ
 41    from those in another district.
 42        Ordinances establishing zoning districts shall be amended as follows:
 43        (a)  Requests for an amendment to the zoning ordinance shall be  submitted
                                                                        
                                           2
                                                                        
  1    to  the  zoning  or  planning  and  zoning commission which shall evaluate the
  2    request to determine the extent and nature of the amendment requested. Partic-
  3    ular consideration shall be given to the effects of any proposed  zone  change
  4    upon  the  delivery  of services by any political subdivision providing public
  5    services, including school districts, within  the  planning  jurisdiction.  An
  6    amendment  of a zoning ordinance applicable to an owner's lands or approval of
  7    conditional rezoning  or denial of a request for rezoning  may be  subject  to
  8    the  regulatory  taking  analysis provided for by section 67-8003, Idaho Code,
  9    consistent with the requirements established thereby.
 10        (b)  After considering the comprehensive plan and other evidence  gathered
 11    through  the public hearing process, the zoning or planning and zoning commis-
 12    sion may recommend and the governing board may adopt or  reject  an  ordinance
 13    amendment  pursuant  to  the notice and hearing procedures provided in section
 14    67-6509, Idaho Code, provided that in the case of a zoning  district  boundary
 15    change, and notwithstanding jurisdictional boundaries, additional notice shall
 16    be provided by mail to property owners or purchasers of record within the land
 17    being  considered,  and within three hundred (300) feet of the external bound-
 18    aries of the land being considered,  and  any  additional  area  that  may  be
 19    impacted  by the proposed change as determined by the commission. Notice shall
 20    also be posted on the premises not less than one (1) week prior to  the  hear-
 21    ing.  When  notice is required to two hundred (200) or more property owners or
 22    purchasers of record, alternate forms of procedures which would  provide  ade-
 23    quate  notice  may  be provided by local ordinance in lieu of posted or mailed
 24    notice. In the absence of a locally adopted alternative notice procedure, suf-
 25    ficient notice shall be deemed to have been provided if  the  city  or  county
 26    provides  notice  through  a display advertisement at least four (4) inches by
 27    two (2) columns in size in the official newspaper of the  city  or  county  at
 28    least fifteen (15) days prior to the hearing date, in addition to site posting
 29    on  all  external  boundaries of the site. Any property owner entitled to spe-
 30    cific notice pursuant to the provisions of this subsection shall have a  right
 31    to  participate  in public hearings before a planning commission, planning and
 32    zoning commission or governing board subject to applicable procedures.
 33        (c)  If the request is found by the governing board to be in conflict with
 34    the adopted plan, or would result in demonstrable  adverse  impacts  upon  the
 35    delivery  of  services by any political subdivision providing public services,
 36    including school districts, within the planning  jurisdiction,  the  governing
 37    board  may require the request to be submitted to the planning or planning and
 38    zoning commission or, in absence of a commission, the governing board may con-
 39    sider an amendment to the comprehensive plan pursuant to the notice and  hear-
 40    ing  procedures  provided  in  section 67-6509, Idaho Code. After the plan has
 41    been amended, the zoning ordinance may then be considered for amendment pursu-
 42    ant to section 67-6511(b), Idaho Code.
 43        (d)  If a governing board adopts a zoning  classification  pursuant  to  a
 44    request  by  a  property owner based upon a valid, existing comprehensive plan
 45    and zoning ordinance, the governing board shall not subsequently  reverse  its
 46    action  or otherwise change the zoning classification of said property without
 47    the consent in writing of the current property owner for a period of four  (4)
 48    years  from  the  date  the  governing  board adopted said individual property
 49    owner's request for a zoning classification change. If the governing body does
 50    reverse its action or otherwise change the zoning classification of said prop-
 51    erty during the above four  (4)  year  period  without  the  current  property
 52    owner's  consent in writing, the current property owner shall have standing in
 53    a court of competent jurisdiction to enforce the provisions of this section.
                                                                        
 54        SECTION 2.  That Section 67-6512, Idaho Code, be, and the same  is  hereby
                                                                        
                                           3
                                                                        
  1    amended to read as follows:
                                                                        
  2        67-6512.  SPECIAL  USE PERMITS, CONDITIONS, AND PROCEDURES. (a) As part of
  3    a zoning ordinance each governing board  may  provide  by  ordinance  adopted,
  4    amended,  or    repealed  in accordance with the notice and hearing procedures
  5    provided under section 67-6509, Idaho Code, for the processing of applications
  6    for special or conditional use permits. A special use permit may be granted to
  7    an applicant if the proposed use is conditionally permitted by  the  terms  of
  8    the  ordinance,  subject  to conditions pursuant to specific provisions of the
  9    ordinance, subject to the ability of political subdivisions, including  school
 10    districts,  to  provide  services  for the proposed use, and when it is not in
 11    conflict with the plan.  Denial of a special use permit or approval of a  spe-
 12    cial  use  permit with conditions unacceptable to the landowner may be subject
 13    to the regulatory taking analysis provided for by section 67-8003, Idaho Code,
 14    consistent with requirements established thereby.
 15        (b)  Prior to granting a special use permit, at least one (1) public hear-
 16    ing in which interested persons shall have an opportunity to be heard shall be
 17    held. At least fifteen (15) days prior to the hearing, notice of the time  and
 18    place,  and a summary of the proposal shall be published in the official news-
 19    paper or paper of general circulation within the jurisdiction. Notice may also
 20    be made available to other newspapers, radio and television  stations  serving
 21    the  jurisdiction  for  use  as a public service announcement. Notice shall be
 22    posted on the premises not less than one (1) week prior to the  hearing.  Not-
 23    withstanding  jurisdictional  boundaries,  nNotice  shall  also be provided to
 24    property owners or purchasers of record  within  the  land  being  considered,
 25    three  hundred (300) feet of the external boundaries of the land being consid-
 26    ered, and any additional area that may be substantially impacted by  the  pro-
 27    posed special use as determined by the commission. Any property owner entitled
 28    to  specific notice pursuant to the provisions of this subsection shall have a
 29    right to participate in public hearings before a planning commission, planning
 30    and zoning commission or governing board.
 31        (c)  When notice is required to two hundred (200) or more property  owners
 32    or  purchasers  of  record,  alternate forms of procedures which would provide
 33    adequate notice may be provided by local ordinance in lieu of  mailed  notice.
 34    In  the  absence of a locally adopted alternative notice procedure, sufficient
 35    notice shall be deemed to have been provided if the city  or  county  provides
 36    notice  through  a  display  advertisement at least four (4) inches by two (2)
 37    columns in size in the official newspaper of the city or county at least  fif-
 38    teen  (15)  days prior to the hearing date, in addition to site posting on all
 39    external boundaries of the site.
 40        (d)  Upon the granting of a special use permit, conditions may be attached
 41    to a special use permit including, but not limited to, those:
 42        (1)  Minimizing adverse impact on other development;
 43        (2)  Controlling the sequence and timing of development;
 44        (3)  Controlling the duration of development;
 45        (4)  Assuring that development is maintained properly;
 46        (5)  Designating the exact location and nature of development;
 47        (6)  Requiring the provision for on-site or off-site public facilities  or
 48        services;
 49        (7)  Requiring more restrictive standards than those generally required in
 50        an ordinance;
 51        (8)   Requiring  mitigation  of  effects  of the proposed development upon
 52        service delivery by any political subdivision, including school districts,
 53        providing services within the planning jurisdiction.
 54        (e)  Prior to granting a special use permit, studies may  be  required  of
                                                                        
                                           4
                                                                        
  1    the  social,  economic, fiscal, and environmental effects of the proposed spe-
  2    cial use. A special use permit shall not be considered as establishing a bind-
  3    ing precedent to grant other special use permits. A special use permit is  not
  4    transferable from one (1) parcel of land to another.
                                                                        
  5        SECTION  3.  That  Section 67-6513, Idaho Code, be, and the same is hereby
  6    amended to read as follows:
                                                                        
  7        67-6513.  SUBDIVISION ORDINANCE. Each governing board  shall  provide,  by
  8    ordinance  adopted,  amended,  or  repealed  in accordance with the notice and
  9    hearing procedures provided under section 67-6509, Idaho Code,  for  standards
 10    and  for the processing of applications for subdivision permits under sections
 11    50-1301 through 50-1329, Idaho Code. Each such ordinance may provide for miti-
 12    gation of the effects of subdivision development on the ability  of  political
 13    subdivisions  of  the  state,  including school districts, to deliver services
 14    without compromising quality of  service  delivery  to  current  residents  or
 15    imposing  substantial  additional  costs upon current residents to accommodate
 16    the proposed subdivision. Fees established  for  purposes  of  mitigating  the
 17    financial  impacts  of  development must comply with the provisions of chapter
 18    82, title 67, Idaho Code. Denial of a subdivision permit or approval of a sub-
 19    division permit with conditions unacceptable to the landowner may  be  subject
 20    to the regulatory taking analysis provided for by section 67-8003, Idaho Code,
 21    consistent with the requirements established thereby.
                                                                        
 22        SECTION  4.  That  Section 67-6515, Idaho Code, be, and the same is hereby
 23    amended to read as follows:
                                                                        
 24        67-6515.  PLANNED UNIT DEVELOPMENTS. As part of or separate from the  zon-
 25    ing  ordinance,  each  governing  board  may  provide,  by  ordinance adopted,
 26    amended, or repealed in accordance with the notice and hearing procedures pro-
 27    vided under section 67-6509, Idaho Code, for the  processing  of  applications
 28    for planned unit development permits.
 29        A  planned unit development may be defined in a local ordinance as an area
 30    of land in which a variety of residential, commercial, industrial,  and  other
 31    land  uses  are  provided  for under single ownership or control. Planned unit
 32    development ordinances may include, but are not limited to,  requirements  for
 33    minimum  area,  permitted  uses, ownership, common open space, utilities, den-
 34    sity, arrangements of land uses on a site, and permit processing. Planned unit
 35    developments may be permitted pursuant to the procedures for processing appli-
 36    cations for special use permits following the notice  and  hearing  procedures
 37    provided  in section 67-6512, Idaho Code. Denial of a planned unit development
 38    permit or approval of a planned unit development permit with conditions  unac-
 39    ceptable  to  the  landowner  may be subject to the regulatory taking analysis
 40    provided for by section 67-8003, Idaho Code, consistent with the  requirements
 41    established thereby.
                                                                        
 42        SECTION  5.  That  Section 67-6516, Idaho Code, be, and the same is hereby
 43    amended to read as follows:
                                                                        
 44        67-6516.  VARIANCE -- DEFINITION -- APPLICATION -- NOTICE -- HEARING. Each
 45    governing board shall provide, as part of the zoning ordinance, for the  proc-
 46    essing  of  applications for variance permits. A variance is a modification of
 47    the bulk and placement requirements of the ordinance as to lot size, lot  cov-
 48    erage,  width,  depth,  front  yard,  side  yard, rear yard, setbacks, parking
 49    space, height of buildings, or other ordinance provision affecting the size or
                                                                        
                                           5
                                                                        
  1    shape of a structure or the placement of the structure upon lots, or the  size
  2    of  lots. A variance shall not be considered a right or special privilege, but
  3    may be granted to an applicant only upon a showing of undue  hardship  because
  4    of  characteristics  of the site and that the variance is not in conflict with
  5    the public interest. Prior to granting a variance, notice and  an  opportunity
  6    to  be  heard  shall be provided to property owners adjoining the parcel under
  7    consideration. Denial of a variance permit or approval of  a  variance  permit
  8    with conditions unacceptable to the landowner may be subject to the regulatory
  9    taking  analysis  provided for by section 67-8003, Idaho Code, consistent with
 10    the requirements established thereby.
                                                                        
 11        SECTION 6.  That Section 67-6523, Idaho Code, be, and the same  is  hereby
 12    amended to read as follows:
                                                                        
 13        67-6523.  EMERGENCY ORDINANCES AND MORATORIUMS. If a governing board finds
 14    that an imminent peril to the public health, safety, or welfare requires adop-
 15    tion  of  ordinances as required or authorized under this chapter, or adoption
 16    of a moratorium upon the issuance of selected classes of permits, or both,  it
 17    shall  state  in writing its reasons for that finding. The governing board may
 18    then proceed without recommendation of  a  commission,  upon  any  abbreviated
 19    notice  of  hearing that it finds practical, to adopt the ordinance or morato-
 20    rium. An emergency ordinance or moratorium may be effective for  a  period  of
 21    not  longer  than one hundred and  twenty eighty-two (1820) days. Restrictions
 22    established by an emergency ordinance or moratorium may  not  be  imposed  for
 23    consecutive  periods.  Further, an intervening period of not less than one (1)
 24    year shall exist between an emergency ordinance or moratorium  and  reinstate-
 25    ment  of  the  same. To sustain restrictions established by an emergency ordi-
 26    nance or moratorium beyond the one hundred eighty-two (182) day period, a gov-
 27    erning board must adopt an interim or regular ordinance, following the  notice
 28    and hearing procedures provided in section 67-6509, Idaho Code.
                                                                        
 29        SECTION  7.  That  Section 67-6524, Idaho Code, be, and the same is hereby
 30    amended to read as follows:
                                                                        
 31        67-6524.  INTERIM ORDINANCES AND MORATORIUMS. If a governing  board  finds
 32    that a plan, a plan component, or an amendment to a plan is being prepared for
 33    its  jurisdiction,  it  may adopt interim ordinances as required or authorized
 34    under this chapter, following the notice and hearing  procedures  provided  in
 35    section  67-6509,  Idaho  Code.  The governing board may also adopt an interim
 36    moratorium upon the issuance of selected classes of permits if, in addition to
 37    the foregoing, the governing board finds and states in writing that  an  immi-
 38    nent  peril  to the public health, safety, or welfare requires the adoption of
 39    an interim moratorium. An interim ordinance or moratorium shall state a  defi-
 40    nite  period of time, not to exceed one (1) calendar year, when it shall be in
 41    full force and effect. To sustain restrictions established by an interim ordi-
 42    nance or moratorium, a governing board must adopt a regular ordinance, follow-
 43    ing the notice and hearing procedures provided in section 67-6509, Idaho Code.
                                                                        
 44        SECTION 8.  That Section 67-6535, Idaho Code, be, and the same  is  hereby
 45    amended to read as follows:
                                                                        
 46        67-6535.  APPROVAL OR DENIAL OF ANY APPLICATION TO BE BASED UPON STANDARDS
 47    AND  TO  BE IN WRITING. (a) The approval or denial of any application provided
 48    for in this chapter shall be based upon standards and criteria which shall  be
 49    set  forth  in  the  comprehensive plan, zoning ordinance or other appropriate
                                                                        
                                           6
                                                                        
  1    ordinance or regulation of the city or county.
  2        (b)  The approval or denial of any application provided for in this  chap-
  3    ter  shall be in writing and accompanied by a reasoned statement that explains
  4    the criteria and standards considered relevant, states the relevant  contested
  5    facts  relied  upon,  and explains the rationale for the decision based on the
  6    applicable provisions of the comprehensive plan, relevant ordinance and statu-
  7    tory provisions, pertinent constitutional principles and  factual  information
  8    contained in the record.
  9        (c)  It  is  the intent of the legislature that decisions made pursuant to
 10    this chapter should be founded upon sound reason and practical application  of
 11    recognized  principles  of law. In reviewing such decisions, the courts of the
 12    state are directed to consider the proceedings as a whole and to evaluate  the
 13    adequacy of procedures and resultant decisions in light of practical consider-
 14    ations with an emphasis on fundamental fairness and the essentials of reasoned
 15    decision-making.  Only those whose challenge to a decision demonstrates actual
 16    harm or violation of fundamental rights, not  the  mere  possibility  thereof,
 17    shall  be entitled to a remedy or reversal of a decision. Every final decision
 18    rendered concerning a site-specific land  use  request  shall  provide  or  be
 19    accompanied  by  notice  to  the  applicant regarding the applicant's right to
 20    request a regulatory taking analysis pursuant to section 67-8003, Idaho Code.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 12978
The purpose of this act is to amend the Local Land Use Planning
Act to provide that various actions taken by local governments in
planning and zoning actions may be subject to a regulatory
takings analysis, to revise notice requirements so that
landowners within a specified distance of a proposed action
receive notice, provide that an interim ordinance or moratorium
may be in effect for not more than one calendar year and to
provide procedures to sustain restrictions established by an
interim ordinance or moratorium and to provide that every final
decision concerning a site specific land use request may be
subject to a regulatory takings analysis pursuant to section 
67-8003, Idaho Code.                                   

                          FISCAL IMPACT
There may be some impact to local governments 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. 
Providing notice to persons in other counties or jurisdictions
may provide a small fiscal impact on a local government.  

Contact
Name: Bruce Newcomb
Phone: 332-1111



STATEMENT OF PURPOSE/FISCAL NOTE                  H 25