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S1254.............................................................by BRANDT EMINENT DOMAIN - Adds to existing law to provide a claims and arbitration process when a governmental entity's actions affect the value of real property in certain instances. 01/13 Senate intro - 1st rdg - to printing 01/16 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE SENATE SENATE BILL NO. 1254 BY BRANDT 1 AN ACT 2 RELATING TO ACTIONS REGARDING REAL PROPERTY; PROVIDING LEGISLATIVE INTENT; 3 AMENDING TITLE 67, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 61, TITLE 4 67, IDAHO CODE, TO PROVIDE A CLAIMS AND ARBITRATION PROCESS, TO DEFINE 5 TERMS APPLICABLE TO SECTION 67-6101, IDAHO CODE, TO PROVIDE FOR INITIATING 6 A PROCEEDING, TO PROVIDE MEDIATION PROCEDURES, TO PROVIDE SPECIAL MASTER 7 PROCEEDINGS, TO PROVIDE SPECIAL MASTER HEARING, TO PROVIDE SPECIAL MASTER 8 RECOMMENDATION, TO PROVIDE POSTRECOMMENDATION PROCEDURES, TO PROVIDE FOR 9 COST-SHARING IMPLEMENTATION AND RECORDS, TO PROVIDE CLAIMS AND JUDICIAL 10 CONSIDERATION, TO DEFINE TERMS APPLICABLE TO SECTION 67-6102, IDAHO CODE, 11 TO PROVIDE FOR INITIATING A PROCEEDING, TO PROVIDE FOR AN OFFER TO SETTLE, 12 TO PROVIDE FOR JUDICIAL CONSIDERATION AND COMPENSATION, TO PROVIDE FOR 13 RECOVERY OF JUDICIAL CONSIDERATION COSTS AND TO PROVIDE CONCLUDING ACTIONS 14 AND RESTRICTIVE PROVISIONS. 15 Be It Enacted by the Legislature of the State of Idaho: 16 SECTION 1. LEGISLATIVE INTENT. The Legislature recognizes that contrary 17 to originating intent, some laws, rules and ordinances of the state and polit- 18 ical subdivisions of the state, as applied in practice may inordinately, 19 unreasonably or unfairly burden, restrict or limit private property rights 20 without necessarily having had judicial consideration of a taking under the 21 Constitution of the State of Idaho or the Constitution of the United States. 22 In such instances the Legislature determines that the owner of private prop- 23 erty is entitled to seek relief, which may include compensation for the actual 24 loss to the fair market value of the real property, through a process of arbi- 25 tration or judicial consideration. The Legislature further determines that a 26 process of arbitration or judicial consideration, as established by this chap- 27 ter, is not intended to intrude on the legitimate needs of local government to 28 regulate private property on behalf of the health, safety and general welfare 29 of its citizens. In this regard, legislative intent is to restrain use of 30 police powers in regulating real property where a regulating governmental 31 entity cannot demonstrate essential nexus between private property regulation 32 for health, safety and the general welfare and the degree to which individual 33 owners of private property are forced to bear permanent financial loss for 34 benefit of the public. It is also legislative intent that reports filed under 35 this chapter serve as an Internet reference repository for the public, the 36 Legislature and all levels of government. 37 SECTION 2. That Title 67, Idaho Code, be, and the same is hereby amended 38 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 39 ter 61, Title 67, Idaho Code, and to read as follows: 2 1 CHAPTER 61 2 PROTECTION OF REAL PROPERTY RIGHTS 3 67-6101. CLAIMS AND ARBITRATION PROCESS. (1) Application. 4 (a) This section shall not be applicable to law or regulation of the fed- 5 eral government or any of its various agencies or any state agency or 6 political subdivision of the state when exercising federal primacy author- 7 ity or acting in compliance with regulatory directive based on federal 8 primacy authority. Federal primacy authority means a federally authorized 9 regulatory authority which is granted to the state or political subdivi- 10 sion of the state for an express purpose. Lacking federal primacy author- 11 ity for that federal purpose, federal law, regulations and noncompliance 12 penalty standards would be in full force and effect. Further, this section 13 shall not be applicable to eminent domain proceedings pursuant to chapter 14 7, title 7, Idaho Code, Idaho water law, transportation planning and 15 transportation precondemnation actions or local government planning pre- 16 liminary to issuance of a regulating action. 17 (b) This section shall not supplant local land use planning provisions of 18 chapter 65, title 67, Idaho Code. 19 (2) Definitions. As used in this section: 20 (a) "Development of the material resources of the state" means land use 21 regulating action involving a single unit of real property, or contiguous 22 real properties, where such properties are characterized by open space 23 and/or are a location of naturally occurring material resources and upon 24 which real property the owner is denied development opportunities for a 25 purpose, explicitly stated or not, of economic or scenic benefit to the 26 general public. Such action by a governmental entity redefines planned use 27 of open space or naturally occurring material resources on private prop- 28 erty and by so doing constitutes alternative governmental development of 29 the same open space or naturally occurring material resources. For the 30 purpose of this section, "development of the material resources of the 31 state" is deemed a public use eligible for consideration of unreasonable 32 or unfair burden. Such consideration does not preclude recommendation by 33 the special master that lacking resolution by arbitration, a claim appear- 34 ing to involve "development of the material resources of the state" be 35 submitted to district court for judicial determination of possible eminent 36 domain applicability under section 67-6521(2), Idaho Code, or inordinate 37 burden judicial consideration under section 67-6102, Idaho Code. 38 (b) "Development order" means any order which grants, grants with condi- 39 tions, or denies an application for a development permit. Rezoning of a 40 specific parcel of land is expressly included; however, actions by state 41 agencies and local governments relating to comprehensive local planning 42 act amendments are excluded. Denial of a request to rezone is also 43 excluded. 44 (c) "Development permit" means any building permit, zoning permit, access 45 permit, subdivision approval, disapproval, certification, or other action 46 of local government, which authorizes the development of real property. 47 (d) "Essential nexus" is the standard by which the authority of a govern- 48 mental entity to regulate on behalf of the health, safety and general wel- 49 fare of the public is comparatively connected with the public purpose 50 sought and the degree to which an individual property owner is forced to 51 permanently bear financial loss for benefit of the public. Essential nexus 52 shall be established to the extent that a governmental regulating action 53 which permanently reduces property value: 54 (i) Is essential to the public purpose sought; 3 1 (ii) Has undergone the "taking" review process required by chapter 2 80, title 67, Idaho Code, and it has been determined that a "taking" 3 has not occurred and the findings of such review are available for 4 public inspection; and 5 (iii) Is confined to regulatory actions considerate of legislative 6 concern that there be minimum practicable loss of private property 7 value for benefit of the public. 8 (e) "Governmental entity" means a state agency or political subdivision 9 of the state created by the constitution of the state of Idaho or by state 10 statute which exercises governmental authority and which is solely respon- 11 sible for the issuance of a restricting development order or regulating 12 action. 13 (f) "Highest and best use" represents the premise upon which a value 14 estimate of real property is based. A precise description and standard for 15 the highest and best use will be determined by the licensed real estate 16 appraiser as the appraisal is conducted under this chapter. 17 (g) "Land or real property" means real estate and any appurtenances and 18 improvements to the real estate, including any other adjacent real estate 19 in which the owner has a legal interest. 20 (h) "Material resources" means land in the state of Idaho or land in the 21 state of Idaho together with any naturally occurring combination of vege- 22 tative cover, geological formation or soil structure which is privately 23 owned and subject to regulating action under this section. 24 (i) "Owner" means a person with an interest in real property who filed an 25 application for a development permit and received a development order, or 26 who holds legal title to real property that is subject to an enforcement 27 action of a governmental entity. A "person" may include, for example, a 28 natural person, firm, association, joint venture, partnership, estate, 29 trust, business trust, syndicate, fiduciary, corporation, limited liabil- 30 ity company or other group or combination. 31 (j) "Regulating action" means a development order, access permit, or 32 other land use directive by which a governmental entity exercises police 33 power authority over private property development or utilization. 34 (k) "Special master" means a person jointly selected by the governmental 35 entity and the owner to perform the duties prescribed in this chapter. The 36 special master shall be a resident of the state and possess qualifications 37 satisfactory to the governmental entity and the owner in the areas of 38 mediation, land use permitting, land planning, land economics, local and 39 state government organization and powers, and law governing the same. The 40 special master need not be an attorney. 41 (l) "Unreasonable or unfair burden" or "unreasonably or unfairly burdens" 42 is a determination of the special master. Factors involved in the determi- 43 nation shall include the history of development and use of the property, 44 history of land use and environmental controls on the property, present 45 nature and extent of the property, public purpose served by the develop- 46 ment order or regulating action at issue, uses authorized for and restric- 47 tions imposed on similar property, the extent to which the owner bears 48 permanently a disproportionate share of the burden imposed for benefit of 49 the public and relevant information cataloged in the state private prop- 50 erty rights repository. 51 (3) Initiating a proceeding. 52 (a) An owner who can demonstrate through an appraisal conducted by a 53 licensed appraiser that a developmental order or regulation action of a 54 governmental entity, has permanently reduced the fair market value of the 55 real property taken as a whole, and further believes such order or regu- 4 1 lating action unreasonably or unfairly burdens the use of his real prop- 2 erty for benefit of the public may apply for relief under this section 3 within ninety (90) calendar days after receipt of the order or notice of 4 the governmental action. 5 (b) To initiate a proceeding under this section, an owner shall file a 6 request for relief with the elected or appointed head of the governmental 7 entity that issued the development order or that initiated the regulating 8 action. For counties and cities, filing shall be with the county or city 9 clerk. The fee for such filing shall be five hundred dollars ($500) pay- 10 able to the office to which the request for relief is filed and the date 11 of payment, as received by the governmental entity, shall be the date of 12 the request for relief. 13 (c) The request for relief shall contain: 14 (i) A brief summary of the owner's intended use of the property; 15 (ii) A summary of the development order or description of the regu- 16 lating action to include documentation of the development order or 17 regulating action; 18 (iii) A brief description of how, in the owner's eyes, the public 19 purpose sought by the governmental entity that issued the development 20 order or regulating action fails to meet essential nexus for the rea- 21 sonable exercise of the governmental land use authority that has 22 reduced the property value; and 23 (iv) A copy of the appraisal by a licensed appraiser and brief 24 statement of the impact of the development order or regulating action 25 on the ability of the owner to achieve the intended use of the prop- 26 erty. 27 (d) No later than thirty (30) calendar days following receipt of the 28 request for relief, the governmental entity with whom the request for 29 relief is filed shall provide a copy of the request by United States mail 30 to owners of real property adjoining the owner's property, and to pur- 31 chasers of record within three hundred (300) feet of the external bound- 32 aries of the owner's property as may separately apply, and to any addi- 33 tional owners of property as determined appropriate by the governmental 34 entity. Notice of the request for relief shall be published as a legal 35 notice by the governmental entity in the same time frame and notice of 36 meetings to address the request for relief shall be in accordance with 37 section 67-2343, Idaho Code, or section 67-6509, Idaho Code, as applica- 38 ble. 39 (e) Persons wishing to express support or opposition to the request for 40 relief may request to participate in the proceeding and shall be allowed 41 to participate at the discretion of, and under procedures established by, 42 the governmental entity conducting the meeting. 43 (f) By requesting relief under this section, the owner consents to grant 44 all parties involved reasonable access to the real property involved, con- 45 tingent on advance notice and at a time and in a manner acceptable to the 46 owner of the real property. 47 (g) Election by the owner to file for judicial consideration of a devel- 48 opment order or regulating action prior to initiating a proceeding under 49 this section waives any right to relief under this section. 50 (4) Mediation procedures. 51 (a) Before initiating a special master hearing to review a development 52 order or regulating action, the owner shall participate in mediation reme- 53 dies provided the remedies take no longer than four (4) months. During 54 this mediation period, dispute resolution considerations between the owner 55 and the governmental entity shall include alternatives listed under sub- 5 1 section (7)(c) of this section. 2 (b) Exhaustion of mediation remedies under this section is not applicable 3 to judicial review sought by the owner under the provisions of the local 4 planning act, section 67-6521, Idaho Code, or the administrative procedure 5 act, section 67-5273(3), Idaho Code. 6 (c) If there is satisfactory resolution of the request for relief during 7 the four (4) month mediation process, the governmental entity shall, 8 within thirty (30) calendar days of the resolution, file the request for 9 relief and the conditions of resolution on the governmental entity's in- 10 ternet site and provide the state private property rights repository with 11 a one (1) paragraph summary of the completed action, the date of resolu- 12 tion, and internet address. The internet format for filing the one (1) 13 paragraph summary shall be defined by the information technology resource 14 management council's policies, standards, guidelines and conventions. Gov- 15 ernmental entities without an internet address shall locally file hard 16 copies of the resolution and file a one (1) paragraph summary with the 17 state private property rights repository as described in this subsection 18 (4)(c) using any available state or local government internet site; except 19 that a mailing address will be provided by the governmental entity in 20 place of an internet address. 21 (d) Once mediation remedies are exhausted, or at the end of four (4) 22 months after the request for relief filing date or at the end of a speci- 23 fied period beyond the four (4) month time period as requested by the 24 owner, the owner shall have thirty (30) calendar days to submit a formal 25 letter of intent to proceed with a special master hearing. The letter of 26 intent shall be submitted by certified or registered mail and within 27 thirty (30) calendar days of the date of receipt of the certified or reg- 28 istered letter by the governmental entity, the owner and governmental 29 entity shall reach mutual agreement on the special master who will conduct 30 the hearing and make recommendations. 31 (e) The date of the request for relief pursuant to this section tolls the 32 time for the owner to seek judicial consideration under section 67-6102, 33 Idaho Code, from the date of request for relief to a date sixty (60) days 34 after signature on the special master's final report; or if there is not 35 mutual agreement on a special master, six (6) calendar months following 36 the request for relief date, or such other time as the special master may 37 determine the owner has failed to comply with instructions and dismisses 38 proceedings with prejudice. 39 (f) Not later than thirty (30) calendar days following the selection of a 40 special master, the governmental entity that issued the development order, 41 or is taking the regulating action, shall file a response to the request 42 for relief with the special master and the owner. The response shall set 43 forth in reasonable detail the following: 44 (i) The public purpose sought by the development order or regulat- 45 ing action; 46 (ii) The basis of each "takings" conclusion that the development 47 order or regulating action has not imposed a taking on the owner's 48 property; 49 (iii) A listing of any mitigating alternatives offered to the owner, 50 including alternatives itemized in subsection (7)(c) of this section 51 which were deemed responsive to the owner's request for relief; and 52 (iv) The position of the government regarding the owner's request 53 for relief. 54 (g) If mutual agreement on a special master is not possible, the owner 55 may file for judicial consideration under section 67-6102, Idaho Code, 6 1 subject only to the requirement that the owner be a property owner as 2 defined in section 67-6102(2), Idaho Code. In this instance, the five hun- 3 dred dollar ($500) request for relief filing fee shall become the judicial 4 cause of action filing fee, the judicial consideration appraisal shall be 5 waived and the judicial cause of action filing date shall be six (6) cal- 6 endar months following the request for relief filing date. 7 (5) Special master procedures. 8 (a) The special master may conduct a hearing on whether the request for 9 relief shall be dismissed for failing to include the information required 10 by subsection (3) of this section. If the special master dismisses the 11 case, the special master shall allow the owner to amend the request and 12 refile. Failure to refile an adequate amended request within a time speci- 13 fied by the special master shall result in a dismissal with prejudice as 14 to this proceeding. Dismissal of a proceeding with prejudice shall consti- 15 tute the special master's final report. Distribution of the dismissal with 16 prejudice shall be the same as provided in subsection (8)(e) of this sec- 17 tion. 18 (b) The special master may request other information from appropriate 19 parties in the interest of gaining a complete understanding of the request 20 for relief. 21 (c) The initial party to the proceeding is the governmental entity that 22 issues the development order to the owner or that is taking the regulating 23 action. In those instances when complete resolution of all relevant issues 24 would require the active participation of more than one (1) governmental 25 entity, the special master may, upon application of a party, request par- 26 ticipation by those governmental entities as parties to the proceeding if 27 it will assist in effecting the purpose of this section. The governmental 28 entities so requested are encouraged to actively participate in this pro- 29 cedure. 30 (d) Any governmental entity that is added by the special master as a 31 party shall file a response to the request for relief prior to the hearing 32 but not later than twenty (20) calendar days following notification of 33 "party" status. A party may incorporate in the response to a request to be 34 dropped from the proceeding. The request to be dropped shall set forth 35 facts and circumstances to aid the special master in ruling on the 36 request. All requests to be dropped shall be disposed of prior to a hear- 37 ing on the merits of the request for relief itself. 38 (e) Each party shall make efforts to assure that those persons qualified 39 by training or experience necessary to address issues raised by the 40 request or by the special master and further qualified to address alterna- 41 tives, variances and other types of modifications to the development order 42 or regulating action are present at the hearing. 43 (f) The special master shall hold a hearing within forty-five (45) calen- 44 dar days of his selection as the mutually agreed person to review the 45 request for relief unless a different date outside forty-five (45) calen- 46 dar days is agreed to by all parties. The hearing shall be held in the 47 county in which the governmental entity issued the development order or 48 regulating action, or in the county where the property is primarily 49 located as impacted by the applicable development order or regulating 50 actions. 51 (g) The special master shall provide notice of the place, date and time 52 of the hearing to all parties at least thirty (30) calendar days prior to 53 the hearing. The governmental entity shall publish the legal notice of the 54 place, date and time of the hearing in accordance with the provisions of 55 section 67-2343, Idaho Code, or section 67-6509, Idaho Code, as applica- 7 1 ble. 2 (h) Persons wishing to express support or opposition to the request for 3 relief may request to participate in the special master hearing and shall 4 be allowed to participate at the discretion of, and under procedures 5 established by, the special master. 6 (6) Special master hearing. 7 (a) The hearing shall be informal and open to the public and does not 8 require the use of an attorney. The hearing shall operate at the direction 9 and under the supervision of the special master. The object of the hearing 10 is to focus attention on the impact of the governmental action giving rise 11 to the request for relief and to explore alternatives to the development 12 order or regulation action in order to recommend relief, when appropriate, 13 to the owner. 14 (b) The first responsibility of the special master is to facilitate a 15 resolution of the conflict between the owner and the governmental entity 16 to the end that some modification of the owner's existing or proposed use 17 of the property may be possible, or that adjustment in the development 18 order or regulating action may be achieved, or that regulatory efforts by 19 one (1) or more of the governmental parties may be instrumental in achiev- 20 ing a solution. Accordingly, the special master shall act as the 21 facilitator or moderator between the parties in an effort to effect a 22 mutually acceptable solution. 23 (c) In conducting the hearing, the special master shall hear from all 24 parties and witnesses that are necessary to an understanding of the mat- 25 ter. 26 (d) The special master shall weigh all information offered at the hear- 27 ing. The circumstances to be examined in determining whether the develop- 28 ment order or regulating action is unreasonable or unfairly burdens use of 29 the property may include, but are not limited to: 30 (i) The history of the real property, including when it was pur- 31 chased, how much was purchased, where it is located, the nature of 32 the title, the composition of the property and how it was initially 33 used; 34 (ii) The history or development and use of the real property, 35 including what was developed on the property and by whom, if it was 36 subdivided and how and to whom it was sold, whether plats were filed 37 or recorded, and whether infrastructure and other public services or 38 improvements may have been dedicated to the public; 39 (iii) The history of environmental protection and land use controls 40 and other rules, including how and when the land was classified, how 41 use was proscribed and what changes in the classification occurred; 42 (iv) The present nature and extent of the real property, including 43 its natural and altered characteristics; 44 (v) The appraisal estimate of highest and best use immediately 45 before and after the regulating action and the decrease in fair mar- 46 ket value over the same period; 47 (vi) The public purpose sought to be achieved by the development 48 order or regulating action, including the nature and magnitude of the 49 problem addressed by the underlying rules or regulations on which the 50 development order or regulating action is based, whether the develop- 51 ment order or regulating action is necessary to the achievement of 52 the public purpose and whether there is an alternative development 53 order or regulating action that would achieve the public purpose and 54 allow for reduced restrictions on the use of the property; 55 (vii) Uses authorized for and restrictions placed on similar prop- 8 1 erty; 2 (viii) Any other information determined relevant by the special mas- 3 ter. 4 (7) Special master recommendation. 5 (a) Within sixty (60) calendar days after the conclusion of the hearing, 6 the special master shall prepare and file with all parties a written rec- 7 ommendation. In each recommendation, a specific determination shall be 8 established as to whether the issue before the special master may involve 9 development of the material resources of the state. 10 (b) If the special master finds that the development order at issue or 11 the development order or regulating action in combination with the actions 12 or rules or regulations of other governmental entities is not unreason- 13 able or does not unfairly burden the use of the owner's property, the spe- 14 cial master shall recommend that the development order or regulating 15 action remain undisturbed and the proceeding shall end, subject to the 16 owner's retention of all other available remedies. 17 (c) If the special master finds that the development order is unreason- 18 able or unfairly burdens the use of the owner's property, the special mas- 19 ter may recommend one (1) or more alternatives that protect the public 20 interest served by the development order or regulating action at issue but 21 allow for reduced restraints on the use of the owner's real property 22 including, but not limited to: 23 (i) Adjustment of land development or permit standards or other 24 provisions controlling the development or use of land; 25 (ii) Increases or modification in the density, intensity or use of 26 areas of development; 27 (iii) Transfer of development rights when authorized by law; 28 (iv) Land swaps or exchanges; 29 (v) Mitigation, including payments in lieu of on-site mitigation; 30 (vi) Location on the least sensitive portion of the property; 31 (vii) Conditioning the amount of development or use permitted; 32 (viii) Requiring issues be addressed on a more comprehensive basis 33 than a single proposed use or development; 34 (ix) Issuance of the development order with variance authorized, 35 special exception or other extraordinary relief, including withdrawal 36 of the enforcement action; 37 (x) Purchase of the real property, or interest therein, by an 38 appropriate governmental entity. 39 (d) The special master's recommendation and the governmental entity's 40 written response to the request for relief are a matter of public record 41 and are admissible in judicial proceedings under section 67-6102, Idaho 42 Code, at the discretion of the court. Other actions or statements of par- 43 ticipants in the special master's proceedings are evidence of an offer to 44 compromise and are inadmissible in any proceeding, judicial or administra- 45 tive. 46 (e) This subsection (7) does not prohibit the owner and the governmental 47 entity from entering into an agreement as to the permissible use of the 48 property prior to the special master entering a recommendation. However, 49 an agreement for a permissible use shall be incorporated in the special 50 master's final report. 51 (8) Postrecommendation procedures. 52 (a) Within sixty (60) calendar days after receipt of the special master's 53 recommendation, the governmental entity responsible for the development 54 order or regulating action shall: 55 (i) Accept the recommendation of the special master and proceed to 9 1 implement the agreement on the recommendation under provisions 2 allowed by the local land use planning act contained in chapter 65, 3 title 67, Idaho Code; 4 (ii) Modify the recommendation of the special master and, subject to 5 owner acceptance, proceed to implement the agreement on the modified 6 recommendation under the provisions allowed by the local land use 7 planning act, chapter 65, title 67, Idaho Code; 8 (iii) Reject the recommendation of the special master. Failure to act 9 within sixty (60) calendar days is a rejection unless the period is 10 extended by agreement of the owner and issuer of the development 11 order or regulating action; 12 (iv) Based on subparagraph (i), (ii) or (iii) of this subsection 13 (8)(a), establish a written decision which describes as specifically 14 as possible the use or uses available to the subject real property. 15 Copies of the written decision shall be immediately provided to the 16 special master and the owner seeking relief. 17 (b) If a governmental entity modifies the special master's recommendation 18 and the owner rejects the modification, or if the governmental entity 19 rejects the recommendation, the owner may initiate a judicial cause of 20 action claim under section 67-6102, Idaho Code, subject only to the 21 requirement that the owner be a property owner as defined in section 22 67-6102(2), Idaho Code. The five hundred dollar ($500) request for relief 23 filing fee shall become the judicial cause of action filing fee, the judi- 24 cial cause of action appraisal shall be waived and the judicial cause of 25 action filing date shall be ninety (90) days following the date of the 26 special master's recommendation. 27 (c) The governmental entity shall file the special master's recommenda- 28 tion and the governmental written decision on the internet in accordance 29 with procedures established in subsection (4)(c) of this section. 30 (d) The procedure established by this section may not continue longer 31 than twelve (12) calendar months unless the period, or any part of the 32 period, is extended by agreement of the parties. 33 (e) The special master's recommendation and the governmental entity's 34 written decision are a matter of public record and are admissible in judi- 35 cial proceedings under section 67-6102, Idaho Code, at the discretion of 36 the court. 37 (9) Cost-sharing -- Implementation and records. 38 (a) Each governmental entity may establish procedural guidelines to gov- 39 ern the conduct of proceedings authorized by this section. Cost of provid- 40 ing notice and effecting service of the request for relief under this sec- 41 tion shall be borne by the owner in an amount not to exceed two thousand 42 five hundred dollars ($2,500). The five hundred dollar ($500) filing fee 43 paid by the owner shall not be credited as part of the owner's payment for 44 governmental entity expenses. 45 (b) The special master is solely responsible for contracting, billing and 46 collecting his negotiated fee and expenses, the sum of which shall be 47 borne equally by the governmental entity and the owner or on an equal per- 48 centage basis if more than one (1) owner has filed a request for relief on 49 the same regulating action and for the same reasons. 50 (c) Governmental entities shall direct all available resources and 51 authorities to effect fully the obvious purposes and intent of this sec- 52 tion in resolving disputes. 53 (d) Procedures, statements and actions of this section may be used to 54 resolve disputes in pending judicial proceedings with the agreement of the 55 parties to the judicial proceedings and subject to approval of the court 10 1 in which the judicial proceedings are pending. 2 (e) The provisions of this section do not supplant other methods agreed 3 to by the parties that are lawfully available for arbitration, mediation 4 or other forms of alternative dispute resolution. 5 (f) Records provided to the state private property rights repository 6 shall be a matter of public record for the benefit of the public, the leg- 7 islature and all levels of government involved in land use regulatory 8 decisions, especially those levels of local government with inexperienced 9 or reduced staff. 10 (g) As to the application of a regulating action, except for a develop- 11 ment order, no cause of action exists under this section for any regulat- 12 ing action issued, modified or amended before July 1, 2006. A development 13 order issued in response to a property owner's application for a develop- 14 ment permit is not so restricted and the cause of action claim may proceed 15 if filed within the ninety (90) day filing period. Amendment or modifica- 16 tion of a regulating action other than a development order applies to a 17 request for relief only to the extent that application of the amendment or 18 modification may unreasonably or unfairly burden an owner apart from the 19 regulating action being amended or modified. 20 (h) The procedures created by this section are not of themselves a judi- 21 cial cause of action. 22 67-6102. CLAIMS AND JUDICIAL CONSIDERATION. (1) Application. 23 (a) This section establishes a cause of action for judicial consideration 24 of regulation actions by a governmental entity that may not rise to the 25 level of a taking under the constitution of the state of Idaho or the con- 26 stitution of the United States but do create an inordinate burden for a 27 property owner such that the property owner bears permanently a dispropor- 28 tionate share of a burden imposed for benefit of the public which in 29 fairness should be borne by the public at large. 30 (b) "Judicial consideration" as used in this section, is a judicial 31 action separate and distinct from "judicial review" in the local land use 32 planning act, chapter 65, title 67, Idaho Code, or the Idaho administra- 33 tive procedure act, chapter 52, title 67, Idaho Code, in that judicial 34 consideration, as opposed to judicial review, is not predicated on exhaus- 35 tion of administrative remedies; nor is the court restricted by section 36 67-5279, Idaho Code, in exercising judicial authority in considering inor- 37 dinate burden as defined in this section and impaneling a jury to award 38 possible compensation, nor is the time limit for a property owner to file 39 against a governmental entity regulating action restricted to twenty-eight 40 (28) calendar days. Other statutory provisions of the local land use plan- 41 ning act and the Idaho administrative procedure act remain applicable 42 unless specifically exempted. 43 (c) This section does not supplant methods agreed to by parties and law- 44 fully available for arbitration, mediation or other forms of alternative 45 dispute resolution. Governmental entities are encouraged to utilize such 46 methods to augment or facilitate the processes and actions contemplated by 47 this section. A private property owner who elects to use the judicial pro- 48 vision of this section in preference to the arbitration provisions of sec- 49 tion 67-6101, Idaho Code, shall be precluded from subsequent filing under 50 section 67-6101, Idaho Code. 51 (d) This section shall not be applicable to law, rule or regulation of 52 the federal government or any of its various agencies or any state agency 53 or political subdivision of the state when exercising federal primacy 54 authority or acting in compliance with regulator directives based on fed- 11 1 eral primacy authority. "Federal primacy authority" means a federally 2 authorized regulatory authority which is granted to the state or political 3 subdivision of the state for an express purpose. Lacking federal primacy 4 authority for that federal purpose, federal law, regulations and noncom- 5 pliance penalty standards would be in full force and effect. Further, this 6 section shall not be applicable to eminent domain proceedings pursuant to 7 chapter 7, title 7, Idaho Code, Idaho water law, transportation planning 8 and transportation precondemnation actions, or local government planning 9 preliminary to issuance of a regulation action. 10 (2) Definitions. As used in this section: 11 (a) "Action of a governmental entity" means a specific regulatory action 12 of a governmental entity which affects real property, including action on 13 an application or permit. 14 (b) "Development of the material resources of the state" means land use 15 regulation involving a single unit of real property, or contiguous real 16 properties, where such properties are characterized by open space and/or 17 are a location of naturally occurring material resources and upon which 18 real property the owner is denied reasonable development opportunities for 19 a purpose, explicitly stated or not, of economic or scenic benefit to the 20 general public. Such action by a governmental entity redefines planned use 21 of open space or naturally occurring material resources on private prop- 22 erty and by so doing constitutes alternative governmental development of 23 the same open space or naturally occurring material resources. For the 24 purposes of this section, "development of material resources of the state" 25 is deemed a public use eligible for consideration of inordinate burden. 26 (c) "Development order" means any order which grants, grants with condi- 27 tions, or denies an application for a development permit. Rezoning of a 28 specific parcel of land is expressly included; however, actions by state 29 agencies and local governments relating to comprehensive land use plan 30 amendments are excluded. Denial of a request to rezone is also excluded. 31 (d) "Development permit" means any building permit, zoning permit, subdi- 32 vision approval, disapproval, certification, or other action of local gov- 33 ernment which authorizes the development of real property. 34 (e) "Essential nexus" is the standard by which the authority of a govern- 35 mental entity to regulate on behalf of the health, safety and general wel- 36 fare of the public is comparatively connected with the public purpose 37 sought and the degree to which an individual property owner is forced to 38 permanently bear financial loss for the benefit of the public. Essential 39 nexus shall be established when a governmental regulating action which 40 permanently reduces property value: 41 (i) Is essential to the public purpose sought; 42 (ii) Has undergone the "taking" review process required by chapter 43 80, title 67, Idaho Code, and it has been determined that a "taking" 44 has not occurred and the findings of such review are available for 45 public inspection; and 46 (iii) Is confined to regulatory actions considerate of legislative 47 concern that there be minimum practicable loss of private property 48 value for benefit of the public. 49 (f) "Fair market value" means an appraised value of real property as 50 determined by an analysis of "highest and best use" for the development 51 opportunity or permit sought, or application of a "vested right" to the 52 use of real property or application of any other recognized appraisal pro- 53 cedure appropriate to the objectives of subsections (3)(a) and (5)(d) of 54 this section. 55 (g) "Federal primacy authority" is defined in subsection (1)(d) of this 12 1 section. 2 (h) "Governmental entity" means a state agency or political subdivision 3 of the state created by the state constitution or general or special act 4 which exercises governmental authority and which is most directly involved 5 in the issuance of a development order or regulating action. 6 (i) "Highest and best use" represents a premise upon which a value esti- 7 mate of real property is based. A description of highest and best use as 8 related to fair market value will be presented by the appraiser in the 9 appraisal report. 10 (j) "Inordinate burden" or "inordinately burdened" means that an action 11 of one (1) or more governmental entities taken for benefit of the public 12 has restricted or limited the use of real property such that the property 13 owner is permanently unable to attain or maintain fair market value for 14 the subject real property taken as a whole and further bears a dispropor- 15 tionate share of a financial burden which, in fairness, should be borne by 16 the public at large. "Inordinate burden" or "inordinately burdened" does 17 not include temporary impacts to real property, or permanent impacts to 18 real property occasioned by governmental abatement, prohibition or preven- 19 tion of a public nuisance at common law or noxious use of private prop- 20 erty, or permanent impacts to real property occasioned by governmental 21 regulation on behalf of the health, safety and general welfare of the pub- 22 lic where essential nexus is demonstrated between the regulatory action 23 and the degree to which the private property owner is forced to bear 24 financial loss for the benefit of the public. 25 (k) "Judicial consideration" is defined in subsection (1)(b) of this sec- 26 tion. 27 (l) "Material resources" means land in the state of Idaho or land in 28 Idaho together with any naturally occurring combination of vegetative 29 cover, geological formation or soil structure which is privately owned and 30 subject to regulation action under this section. 31 (m) "Property owner" means the person who holds legal title to the prop- 32 erty at issue. 33 (n) "Real property" means real estate and includes any appurtenances and 34 improvements to the land, including other adjacent property in which the 35 property owner has a relevant interest. 36 (o) "Regulating action" means a development order or other land use 37 directive by which a governmental entity exercises police power authority 38 over private property development or utilization. 39 (p) "Ripeness decision" means a written decision by a governmental entity 40 which establishes a final definition of available uses to which real prop- 41 erty may be put when a regulation action by that governmental entity has 42 reduced the real property fair market value and the owner, seeking relief, 43 has filed a claim under this section which has not been settled during the 44 one hundred eighty (180) calendar day notice period. This written decision 45 constitutes the last prerequisite to judicial consideration, notwithstand- 46 ing the availability of other administrative remedies, and the matter 47 shall be deemed final, or ripe for the purpose of commencing a judicial 48 proceeding. 49 (q) "Vested right" is to be determined by applying the principles of 50 equitable estoppel or other appropriate statutory law of the state. 51 (3) Initiating a proceeding. 52 (a) A cause of action may be commenced by a property owner under this 53 section if a written claim is filed with the head of the appropriate gov- 54 ernmental entity within ninety (90) calendar days after a development 55 order or regulating action is first applied by the governmental entity to 13 1 the property at issue and the property owner submits with the claim an 2 independent appraisal by a licensed appraiser that supports the claim and 3 demonstrates a minimal loss in fair market value to the real property 4 taken as a whole of twenty percent (20%), or twenty thousand dollars 5 ($20,000), whichever is less. 6 (b) The cause of action claim shall be filed with the head of the appro- 7 priate governmental entity not less than one hundred eighty (180) calen- 8 dar days prior to initiating a separate filing for judicial consideration. 9 (c) If the action of government is the culmination of a process that 10 involves more than one (1) governmental entity, or if a complete resolu- 11 tion of all relevant issues in the view of the property owner or in the 12 view of a governmental entity to whom a claim is presented requires the 13 active participation of one (1) or more governmental entities, the prop- 14 erty owner shall present the claim as provided in this section to each of 15 the governmental entities. 16 (d) The cause of action filing fee shall be five hundred dollars ($500) 17 and receipt of the fee by the governmental entity having administrative 18 responsibility shall establish the reference date for purposes of the one 19 hundred eighty (180) calendar day notice period preliminary to filing for 20 judicial consideration. 21 (e) No later than thirty (30) calendar days following receipt of the 22 filed claim, the governmental entity with whom the request for relief is 23 filed shall provide a copy of the claim by United States mail to owners of 24 real property adjoining the owner's property, and to purchasers of record 25 within three hundred (300) feet of the external boundaries of the property 26 owner's land as may separately apply, and to any additional owners of 27 property as determined appropriate by the governmental entity. Notice of 28 the request for relief shall be published as a legal notice by the govern- 29 mental entity in the same time frame as notice of meetings to address the 30 claim, and shall be in accordance with section 67-2343, Idaho Code. 31 (f) Persons wishing to express support or opposition to the filed claim 32 may request to participate in the proceeding and shall be allowed to par- 33 ticipate at the discretion of, and under procedures established by, the 34 governmental entity conducting the meetings. 35 (4) Offer to settle -- One hundred eighty day notice period. 36 (a) During the one hundred eighty (180) calendar day notice period, 37 unless extended by agreement of the parties, the governmental entity shall 38 make a written settlement offer to effectuate settlement under provisions 39 allowed by the local land use planning act, chapter 65, title 67, Idaho 40 Code: 41 (i) An adjustment of land development or permit standards or other 42 provisions controlling the development; 43 (ii) Increases or modification in the density, intensity or use of 44 areas of development; 45 (iii) Land swaps or exchanges; 46 (iv) Mitigation, including payments in lieu of on-site mitigation; 47 (v) Location on the least sensitive portion of the property; 48 (vi) Conditioning the amount of development or use permitted; 49 (vii) A requirement that issues be addressed on a more comprehensive 50 basis than a single posed use or development; 51 (viii) Issuance with the development order of a variance, special 52 exception or other extraordinary relief; 53 (ix) Purchase of the real property, or an interest therein, by an 54 appropriate governmental entity; 55 (x) Other land use proposals legitimate to the interests of the 14 1 property owner, the public and the governmental entity, or 2 alternatively, reject settlement and all settlement options in pref- 3 erence of issuing the ripeness decision of subsection (4)(c) of this 4 section with prejudice toward listing any mitigating alternatives 5 regarding the property owner's cause of action claim. 6 (b) If the property owner accepts the settlement offer, the governmental 7 entity shall implement the settlement offer through appropriate hearings 8 and/or development agreement or regulating action to include issuance of a 9 variance, special exception or other extraordinary relief. Within thirty 10 (30) calendar days of settlement, the governmental entity shall file the 11 terms of settlement in accordance with the provisions established in sec- 12 tion 67-6101(4)(c), Idaho Code. 13 (c) During the one hundred eighty (180) calendar day notice period, 14 unless a settlement offer is accepted by the property owner, each of the 15 governmental entities provided notice pursuant to subsection (3)(c) of 16 this section, shall issue a written ripeness decision which: 17 (i) Establishes the public purpose for the regulatory action taken; 18 (ii) Addresses essential nexus for the regulatory action taken; 19 (iii) Identifies allowable uses to which the subject property may be 20 put; and 21 (iv) Lists mitigating alternatives offered to the property owner, 22 including alternatives itemized in subsection (4)(a) of this section 23 which were deemed responsive to the property owner's cause of action 24 claim. 25 Failure of the governmental entity to issue a written ripeness decision 26 during the one hundred eighty (180) calendar day notice period shall be 27 deemed an action which ripens the regulating action of the governmental 28 entity such that the regulating action shall operate as a ripeness deci- 29 sion that has been rejected by the property owner. 30 (d) The ripeness decision, as a matter of law, constitutes the last pre- 31 requisite to judicial consideration and the matter shall be deemed ripe or 32 final for the purpose of the judicial proceeding created by this section, 33 notwithstanding the availability of other administrative remedies or the 34 fact that judicial review as a separate judicial procedure under the local 35 land use planning act pursuant to section 67-6521, Idaho Code, requires 36 the exhaustion of all nonjudicial remedies. 37 (5) Judicial consideration and compensation. 38 (a) If the property owner rejects the ripeness decision of the governmen- 39 tal entity or entities, or terms of the settlement offer under subsection 40 (4)(b) of this section are not met within ninety (90) calendar days, the 41 property owner may file a claim for compensation in district court within 42 the judicial district where the affected property is located. A copy of 43 filing shall be served contemporaneously on the head of each of the gov- 44 ernmental entities that issued a ripeness decision which was rejected by 45 the property owner. 46 (b) In acting on the filed claim, the district court shall determine 47 whether, considering the ripeness decision of subsection (4)(c) of this 48 section, and the financial impact demonstrated by the property owner, suf- 49 ficient evidence exists to believe the governmental entity has 50 inordinately burdened the real property owner such that jury deliberation 51 is appropriate for possible compensation under subsection (5)(d) of this 52 section. The property owner shall not prevail in an action filed under 53 this section if the court finds insufficient evidence to impanel a jury. 54 (c) A governmental entity may take an interlocutory appeal of the judi- 55 cial determination that action of the governmental entity merits impanel- 15 1 ing of a jury to consider possible compensation. An interlocutory appeal 2 does not automatically stay the proceedings; however, the court may stay 3 the proceedings during pendency of the appeal. If the governmental entity 4 does not prevail in the interlocutory appeal, the court shall award to the 5 prevailing property owner the costs and a reasonable attorney's fee incur- 6 red by the property owner in the interlocutory appeal. 7 (d) Following court determination that sufficient evidence exists to war- 8 rant jury deliberation of possible compensation and following resolution 9 of any interlocutory appeal, the court shall impanel a twelve (12) member 10 civil jury to determine any compensation due the property owner. In con- 11 sidering compensation, the jury shall weigh the fair market value of the 12 real property as it existed at the time of the governmental action at 13 issue and the fair market value of the real property following the govern- 14 mental action at issue, taking into consideration any governmental conces- 15 sion in the ripeness decision and the extent to which the property owner 16 bears permanently a disproportionate share of a burden imposed for public 17 benefit which, in fairness, should be borne by the public at large. Not- 18 withstanding the provisions of section 67-5279, Idaho Code, an award of 19 compensation by the jury constitutes determination of inordinate burden 20 and is the only basis for the property owner to prevail in an action filed 21 pursuant to this section. 22 (e) If the actions of more than one (1) governmental entity are responsi- 23 ble for the action that imposed the inordinate burden on the real property 24 owner, the jury shall determine the percentage of responsibility each such 25 governmental entity bears with respect to the inordinate burden as a whole 26 and establish compensation accordingly. 27 (f) The district court may enter any orders necessary to effectuate the 28 purposes of this section and to make final determinations to effectuate 29 relief available under this section. 30 (g) An award or payment of compensation pursuant to this section shall 31 operate to grant to and vest in any governmental entity by whom compensa- 32 tion is paid the right, title and interest in rights of use for which the 33 compensation has been paid. The court shall determine the form and the 34 recipient of the right, title and interest as well as the terms of acqui- 35 sition of real property. 36 (h) Following jury determination of inordinate burden, the affected gov- 37 ernmental entity or entities shall have sixty (60) days to make a decision 38 to compensate the property owner or to rescind the regulating action for 39 which the claim of inordinate burden was filed. This election shall not 40 diminish the responsibility of the governmental entity or entities to pay 41 reasonable costs and attorney's fees incurred by the property owner as 42 established under subsection (6)(a) of this section. 43 (6) Recovery of judicial consideration costs. 44 (a) If the property owner prevails in the action filed pursuant to this 45 section, the property owner is entitled to recover reasonable costs and 46 attorney's fees incurred by the property owner from the entity or entities 47 according to the court-determined proportionate share from the date of 48 filing of the district court action through termination of court proceed- 49 ings. The property owner is not entitled to recovery of the five hundred 50 dollar ($500) cause of action filing fee. 51 (b) If the governmental entity or entities prevail in the action filed 52 pursuant to this section, each shall be entitled to recover reasonable 53 costs and attorney's fees according to their court-determined proportional 54 share from the date of filing of the district court action through termi- 55 nation of court proceedings. 16 1 (c) The determination of total reasonable costs and attorney's fees pur- 2 suant to this section shall be made by the court and not the jury. 3 (7) Concluding actions and restrictive provisions. 4 (a) Upon payment of court-determined costs and attorney's fees, the prop- 5 erty owner, having failed to prevail in a court determination of inordi- 6 nate burden, shall have a final concluding prerogative to accept the pro- 7 visions of any ripeness decision previously rejected in favor of judicial 8 consideration. The governmental entity or entities who developed the writ- 9 ten ripeness decision shall direct all available resources and authorities 10 necessary to effect fully the purposes and intent of the decision. 11 (b) Within thirty (30) calendar days after the execution of any settle- 12 ment pursuant to this section, or the issuance of any judgment pursuant to 13 this section, or the exercise of final concluding prerogative of the prop- 14 erty owner to accept a ripeness decision previously rejected in favor of 15 judicial consideration, the governmental entity having administrative 16 responsibility shall file a copy of the request for relief and the settle- 17 ment or judgment in accordance with the filing provisions in section 18 67-6101(4)(c), Idaho Code, but adding the case title of the judgment. 19 (c) A cause of action may not be commenced under this section if the 20 claim is presented more than ninety (90) calendar days after a development 21 order or regulation is first applied by the governmental entity to prop- 22 erty at issue. If an owner seeks relief from the governmental action 23 through lawfully available administrative proceedings, including relief 24 actions under section 67-6101, Idaho Code, the time for bringing an action 25 under this section is tolled until conclusion of such proceedings. 26 (d) As to the application of a regulating action, except for a develop- 27 ment order, no cause of action exists under this section for any regulat- 28 ing action issued, modified or amended before July 1, 2006. A development 29 order issued in response to a property owner's application for a develop- 30 ment permit is not so restricted and the cause of action claim may proceed 31 if filed within the ninety (90) calendar day filing period. 32 (e) Notwithstanding the provisions of chapter 9, title 6, Idaho Code, and 33 specifically the provisions of section 6-904B, Idaho Code, the provisions 34 of this chapter shall govern the determination of an inordinate burden and 35 the award or payment of compensation. 36 (f) Nothing contained in this chapter is intended to imply or infer that 37 the court system of this state can be accessed twice on the same claim 38 regarding the diminution of value of property.
STATEMENT OF PURPOSE RS 15569 This proposed legislation provides private property owners with a progressive system for seeking resolution of land use regulatory disputes which may not have "takings" standing under the Idaho Constitution of the United States. The range of alternative dispute resolution extends from mediation and arbitration to judicial consideration of inordinate burden as a cause of action separate and distinct from "takings". The legislation is based on the premise that exhaustion of administrative remedies to achieve judicial review of "takings" claims and the complexity of "takings" law itself precludes most private property owners from any realistic opportunity to seek relief from unreasonable or inordinately burdensome land use regulatory actions. In balancing government and private property interests, the legislation does not intrude on the legitimate needs of government to regulate private property on behalf of the health, safety and general welfare of it's citizens. The legislation does establish the obligation of government to demonstrate an essential nexus between the public purpose sought in land use regulation and the degree to which individual owners of private property are forced to bear permanent financial loss for benefit of the public. Final resolution is left in the hands of elected government or a jury of the people. The recent Kelo v. New London case highlights the need to focus on achieving a balance between public and private interests. FISCAL NOTE The legislation provides for $500 filing fees, collection of arbitration administrative costs to $2,500, and award of court costs and attorney fees where a governmental entity prevails in an inordinate burden claim. The cost of a "special master" in the arbitration process is divided between the governmental entity and the property owner. Much of the alternative dispute resolution in this legislation parallels exhaustion of administrative remedies under existing law. Time, and therefore cost, for alternative dispute resolution and reaching "ripeness" for purposes of judicial consideration will generally be shorter than for exhaustion of administrative remedies. Some increased cost to local or state government may originate through additional claim filings. The case load factor has yet to be demonstrated and associated costs cannot be analytically evaluated at this time. Mandatory acquisition of regulated private property is not an objective. Contact Name: Senator Skip Brandt Representative Mike Moyle Phone: 332-1326 332-1000 STATEMENT OF PURPOSE/FISCAL NOTE S 1254