View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
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
|||| 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
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