Print Friendly SENATE BILL NO. 1254 – Eminent domain, claims process
SENATE BILL NO. 1254
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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 - 2006
IN THE SENATE
SENATE BILL NO. 1254
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:
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
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;
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
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-
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-
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-
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-
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
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,
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-
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-
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
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-
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-
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
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-
2 (viii) Any other information determined relevant by the special mas-
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-
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
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
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-
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
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-
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
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
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
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
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
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-
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.
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
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
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.
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.
Name: Senator Skip Brandt Representative Mike Moyle
Phone: 332-1326 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE S 1254