2006 Legislation
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SENATE BILL NO. 1254 – Eminent domain, claims process

SENATE BILL NO. 1254

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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

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                                       IN 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 / Fiscal Impact


                      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