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H0842.....................................................by WAYS AND MEANS
REGULATORY TAKINGS - Amends existing law relating to the Idaho Regulatory
Takings Act to revise the declaration of purpose; to revise the definition
of "regulatory taking" and to define "per se taking"; and to revise
provisions applicable to regulatory or administrative actions that have
resulted or will result in a taking of private property by a governmental
agency or entity.
03/22 House intro - 1st rdg - to printing
03/23 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 842
BY WAYS AND MEANS COMMITTEE
1 AN ACT
2 RELATING TO THE IDAHO REGULATORY TAKINGS ACT; AMENDING SECTION 67-8001, IDAHO
3 CODE, TO REVISE THE DECLARATION OF PURPOSE; AMENDING SECTION 67-8002,
4 IDAHO CODE, TO REVISE THE DEFINITION OF "REGULATORY TAKING" AND TO DEFINE
5 "PER SE TAKING"; AND AMENDING SECTION 67-8003, IDAHO CODE, TO REVISE PRO-
6 VISIONS APPLICABLE TO REGULATORY OR ADMINISTRATIVE ACTIONS THAT HAVE
7 RESULTED OR WILL RESULT IN A TAKING OF PRIVATE PROPERTY BY A GOVERNMENTAL
8 AGENCY OR ENTITY.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 67-8001, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 67-8001. DECLARATION OF PURPOSE. The purpose of this chapter is to estab-
13 lish an orderly, consistent review process that better enables state agencies
14 and local governments to evaluate whether proposed regulatory or administra-
15 tive actions may result in a taking of private property without due process of
16 law and to provide a requirement that certain takings be compensated. It is
17 not the purpose of this chapter to expand or reduce the scope of private prop-
18 erty protections provided in the state and federal constitutions.
19 SECTION 2. That Section 67-8002, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 67-8002. DEFINITIONS. As used in this chapter:
22 (1) "Local government" means any city, county, taxing district or other
23 political subdivision of state government with a governing body.
24 (2) "Private property" means all property protected by the constitution
25 of the United States or the constitution of the state of Idaho.
26 (3) "State agency" means the state of Idaho and any officer, agency,
27 board, commission, department or similar body of the executive branch of the
28 state government.
29 (4) "Regulatory taking" means a regulatory or administrative action
30 resulting in deprivation of private property that is the subject of such
31 action, whether such deprivation is total or partial, permanent or temporary,
32 in violation of the state or federal constitution.
33 (5) "Per se taking" means a regulatory taking by local government that
34 within three (3) years prior to the effective date of this act or any time
35 thereafter results in a diminution of fifteen percent (15%) or more of the
36 fair market value of private property that is the subject of such action.
37 SECTION 3. That Section 67-8003, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 67-8003. PROTECTION OF PRIVATE PROPERTY. (1) The attorney general shall
2
1 establish, by October 1, 1994, an orderly, consistent process, including a
2 checklist, that better enables a state agency or local government to evaluate
3 proposed regulatory or administrative actions to assure that such actions do
4 not result in an unconstitutional a regulatory taking in violation of the
5 state or federal constitution, or an uncompensated per se taking of private
6 property. The attorney general shall review and update the process at least
7 on an annual basis to maintain consistency with changes in law. All state
8 agencies and local governments shall follow the guidelines of the attorney
9 general.
10 (2) Upon the written request of an owner of real property that is the
11 subject of such action, for actions which become final after the effective
12 date of this act, such request being filed with the clerk or of the agency or
13 entity undertaking the regulatory or administrative action not more than
14 twenty-eight (28) days after the final decision concerning the matter at
15 issue, a state agency or local governmental entity shall prepare a written
16 taking analysis concerning the action. Upon the written request of an owner of
17 real property that is the subject of such action, for actions which became
18 final within three (3) years prior to the effective date of this act, such
19 request being filed with the clerk of the agency or entity undertaking the
20 regulatory or administrative action not more than one hundred eighty (180)
21 days after the effective date of this act, a local government entity shall
22 prepare a written taking analysis concerning the action. Any regulatory taking
23 analysis prepared hereto shall comply with the process set forth in this chap-
24 ter, including use of the checklist developed by the attorney general pursuant
25 to subsection (1) of this section and shall be provided to the real property
26 owner no longer than forty-two (42) days after the date of filing the request
27 with the clerk or secretary of the agency or entity whose action is ques-
28 tioned. A regulatory taking analysis prepared pursuant to this section shall
29 be considered public information.
30 (3) A governmental action is voidable if a written taking analysis is not
31 prepared after a request has been made pursuant to this chapter. A private
32 real property owner, whose property is the subject of governmental action,
33 affected by a governmental action without the preparation of a requested tak-
34 ing analysis as required by this section may seek judicial determination of
35 the validity of the governmental action by initiating a declaratory judgment
36 action or other appropriate legal procedure. A suit seeking to invalidate a
37 governmental action for noncompliance with subsection (2) of this section must
38 be filed in a district court in the county in which the private property
39 owner's affected real property is located. If the affected property is located
40 in more than one (1) county, the private property owner may file suit in any
41 county in which the affected real property is located.
42 (4) If the regulatory taking analysis prepared pursuant to this section
43 shows that a per se taking has resulted from the regulatory or administrative
44 action, such regulatory or administrative action is voidable unless compensa-
45 tion equal to the diminution in the fair market value of the property is paid
46 to the owner by the local governmental entity. A private real property owner
47 whose property is the subject of governmental action affected by a governmen-
48 tal action resulting in a taking may seek judicial determination of the valid-
49 ity of the action or of whether there has been a per se taking by initiating a
50 declaratory judgment action or other appropriate legal procedure. A private
51 real property owner whose property is the subject of governmental action
52 affected by governmental action resulting in a per se taking may seek compen-
53 sation or judicial determination of the validity of the governmental action by
54 initiating a declaratory judgment action or other appropriate legal procedure.
55 A suit to determine if a per se taking has occurred, seeking compensation or
3
1 to invalidate a governmental action pursuant to this subsection must be filed
2 in a district court in the county in which the private property owner's
3 affected real property is located. If the affected property is located in more
4 than one (1) county, the private property owner may file suit in any county in
5 which the affected real property is located.
6 (5) (a) The provisions of this section providing that a regulatory or
7 administrative action is voidable and requiring that compensation be paid
8 shall not apply to that portion of a per se taking shown by the regulatory
9 taking analysis to be the result of regulatory or administrative actions:
10 (i) Restricting or prohibiting activities commonly and historically
11 recognized as public nuisances under common law, provided that this
12 exception shall be construed narrowly in favor of a finding that com-
13 pensation is payable;
14 (ii) Restricting or prohibiting activities for the protection of
15 public health and safety, such as fire and building codes, health and
16 sanitation rules or regulations, solid or hazardous waste rules or
17 regulations, or pollution control rules or regulations; or
18 (iii) To the extent such actions are required to comply with federal
19 law.
20 (b) Nothing in this subsection (5) shall alter requirements in this chap-
21 ter for the preparation of a written regulatory taking analysis. Where a
22 portion of a per se taking is shown by the regulatory taking analysis to
23 be attributable to regulatory or administrative actions taken pursuant to
24 the conditions set forth in paragraphs (a)(i) through (iii) of this sub-
25 section (5), a private real property owner may pursue all remedies avail-
26 able to him in this chapter as to the portion of the per se taking not
27 attributable to such regulatory or administrative actions taken pursuant
28 to the conditions set forth in those paragraphs.
29 (6) This chapter shall not apply to regulatory or administrative actions:
30 (a) Terminating illegal activity; or
31 (b) Restricting or prohibiting the use of property for the purpose of
32 selling pornography or performing nude dancing, provided however, that
33 this paragraph is not intended to affect or alter rights provided by the
34 constitution of the United States or the constitution of the state of
35 Idaho.
36 (7) During the preparation of the taking analysis, any time limitation
37 relevant to the regulatory or administrative actions shall be tolled. Such
38 tolling shall cease when the taking analysis has been provided to the property
39 owner. Both the request for a taking analysis and the taking analysis shall be
40 part of the official record regarding the regulatory or administrative action.
STATEMENT OF PURPOSE
RS 16262
This legislation changes definitions and makes amendments to the
Idaho Regulatory Takings Act to require compensation be paid with
respect to certain takings of private property by a governmental
agency or entity.
FISCAL NOTE
There is no fiscal impact to the general fund.
Contact
Name: Rep. Mike Moyle
(208) 332-1000
Maurice Ellsworth, Attorney-at-Law
Phone: (208) 338-1001
STATEMENT OF PURPOSE/FISCAL NOTE H 842