S-1005.1          _______________________________________________


                                 SENATE BILL 5419



State of Washington              52nd Legislature             1991 Regular Session


By Senators Barr, Patterson, Hansen, McCaslin and Bauer.


Read first time January 31, 1991.  Referred to Committee on Governmental Operations.Clarifying whether regulatory or adminstrative actions result in the taking of property that requires compensation.

     AN ACT Relating to the regulatory taking of private property by state government; adding a new chapter to Title 8 RCW; and creating a new section.




     NEW SECTION.  Sec. 1.      The purpose of this chapter is to establish an orderly process that better enables state decision makers to evaluate whether proposed state regulatory or administrative actions may result in a taking of property that may require compensation.  It is not the purpose of this chapter to expand or reduce the protection of private property owners from regulatory takings as provided by the state and federal Constitutions.


     NEW SECTION.  Sec. 2.      Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

     (1) "Policies that have taking implications" means state regulations, proposed state regulations, or proposed state legislation, that, if implemented or enacted, could effect a taking.  "Policies that have taking implications" does not include:

     (a) Actions in which the power of eminent domain is formally exercised.

     (b) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a manner that lessens interference with the use of private property.

     (c) Law enforcement actions involving seizure, for violations of law, of property for forfeiture, or as evidence in criminal proceedings.

     (2) "Private property" means all property protected by Amendments V and XIV of the Constitution of the United States or Article I, section 16 of the state Constitution.

     (3) "Taking" means an uncompensated damaging or deprivation of private property in violation of Amendment V or XIV of the Constitution of the United States or Article I, section 16 of the state Constitution.

     (4) "State agency" means any state board, commission, department, or officer except legislative and judicial branches.


     NEW SECTION.  Sec. 3.      The attorney general shall develop a checklist and guidelines for the evaluation of risk and avoidance of unanticipated takings pursuant to this chapter to assist departments and agencies in the identification and evaluation of governmental policies that have taking implications.

     The guidelines and checklist are to be completed by July 1, 1991.  The attorney general shall review and update the checklist and guidelines at least on an annual basis to maintain consistency with court rulings.


     NEW SECTION.  Sec. 4.      (1) Commencing October 1, 1991, each state agency or department proposing policies that have taking implications shall designate a person or persons in the agency who will be responsible for ensuring compliance with the provisions of this chapter.  Each agency policy that has a taking implication shall submit the proposed agency action to the designated person for review.

     (2) Using the checklist and guidelines for the evaluation of risk and avoidance of unanticipated takings prepared pursuant to section 3 of this act, the designee shall determine the need for preparing a "taking implications assessment."  The "taking implications assessment" shall include an analysis of at least the following elements:

     (a) The likelihood that the proposed action could result in a taking, including a description of how the taking affects private property rights.

     (b) Alternatives to the proposed action that would fulfill the government's legal obligation but that would reduce the impact on the private property owner and thus the taking risk.

     (c) An estimate of a financial cost to the government for compensation and source of payment within the agency's budget.

     (3) Prior to implementing the policies that have taking implications, a copy of the "taking implications assessment" shall be submitted to the agency director and to the office of financial management.

     (4) Nothing in this act grants a private party the right to seek judicial relief requiring compliance with the provisions of this act.


     NEW SECTION.  Sec. 5.      Sections 2 through 4 of this act shall constitute a new chapter in Title 8 RCW.