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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
|||| 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.
|||| 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.".
|||| 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
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