S-0362

AN ACT Relating to protection of private property rights; amending RCW 34.05.320, 34.05.325, 34.05.345, and 34.05.620; adding new sections to Title 64 RCW; and providing for submission of this act to a vote of the people.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 34.05.320 and 1989 c 175 s 7 are each amended to read as follows:

(1) At least twenty days before the rule-making hearing at which the agency receives public comment regarding adoption of a rule, the agency shall cause notice of the hearing to be published in the state register. The publication constitutes the proposal of a rule. The notice shall include all of the following:

(a) A title, a description of the rule's purpose, and any other information which may be of assistance in identifying the rule or its purpose;

(b) Citations of the statutory authority for adopting the rule and the specific statute the rule is intended to implement;

(d) The agency personnel, with their office location and telephone number, who are responsible for the drafting, implementation, and enforcement of the rule;

(e) The name of the person or organization, whether private, public, or governmental, proposing the rule;

(f) Agency comments or recommendations, if any, regarding statutory language, implementation, enforcement, and fiscal matters pertaining to the rule;

(g) Whether the rule is necessary as the result of federal law or federal or state court action, and if so, a copy of such law or court decision shall be attached to the purpose statement;

(h) When, where, and how persons may present their views on the proposed rule;

(i) The date on which the agency intends to adopt the rule;

(j) A short explanation of the rule, its purpose, and anticipated effects, including in the case of a proposal that would modify existing rules, a short description of the changes the proposal would make; and

(k) A copy of the small business economic impact statement, if applicable.

(2) Upon filing notice of the proposed rule with the code reviser, the adopting agency shall have copies of the notice on file and available for public inspection and shall forward three copies of the notice to the rules review committee.

(3) No later than three days after its publication in the state register, the agency shall cause a copy of the notice of proposed rule adoption to be mailed to each person who has made a request to the agency for a mailed copy of such notices. An agency may charge for the actual cost of providing individual mailed copies of these notices.

(4) In addition to the notice required by subsections (1) and (2) of this section, an institution of higher education shall cause the notice to be published in the campus or standard newspaper of the institution at least seven days before the rule-making hearing.

(5) In addition to the notice required by subsections (1) and (2) of this section, an agency that proposes a rule that would restrict the property rights of landowners shall identify those landowners, and at the time of filing notice, shall mail to each landowner the information required by subsection (1) of this section. The agency shall also state in the notice (a) any reasonable, less-restrictive (with regards to property rights) alternative means of accomplishing the object of the proposed rule and (b) why the alternatives were rejected by the agency. For the purposes of this subsection, the term "landowner" includes any person with an identifiable interest in real property. "Landowner" specifically includes a person with a contingent, expectant, life, or leasehold interest.

Sec. 2. RCW 34.05.325 and 1988 c 288 s 304 are each amended to read as follows:

(1) The agency shall make a good faith effort to insure that the information on the proposed rule published pursuant to RCW 34.05.320 accurately reflects the rule to be presented and considered at the oral hearing on the rule. Written comment about a proposed rule, including supporting data, shall be accepted by an agency if received no later than the time and date specified in the notice, or such later time and date established at the rule-making hearing.

(2) The agency shall provide an opportunity for oral comment to be received by the agency in a rule-making hearing, and when RCW 34.05.320(5) is applicable, the hearing shall be held in the county wherein the majority of affected land is situated, and the agency shall permit every landowner affected by a proposed rule to give oral testimony at the hearing.

(3) The agency head, a member of the agency head, or a presiding officer designated by the agency head shall preside at the rule-making hearing. Rule-making hearings shall be open to the public. The agency shall cause a record to be made of the hearing by stenographic, mechanical, or electronic means. Unless the agency head presides or is present at substantially all the hearings, the presiding official shall prepare a memorandum for consideration by the agency head, summarizing the contents of the presentations made at the rule-making hearing. The summarizing memorandum is a public document and shall be made available to any person in accordance with chapter 42.17 RCW.

(4) Rule-making hearings are legislative in character and shall be reasonably conducted by the presiding official to afford interested persons the opportunity to present comment. Rule-making hearings may be continued to a later time and place established on the record without publication of further notice under RCW 34.05.320.

Sec. 3. RCW 34.05.345 and 1988 c 288 s 308 are each amended to read as follows:

Except for emergency rules adopted under RCW 34.05.350, when twenty days notice of intended action to adopt, amend, or repeal a rule has not been published in the state register and mailed to the appropriate landowners, as required by RCW 34.05.320, the code reviser shall not publish such rule and such rule shall not be effective for any purpose.

Sec. 4. RCW 34.05.620 and 1988 c 288 s 602 are each amended to read as follows:

Whenever a majority of the members of the rules review committee determines that a proposed rule is not within the intent of the legislature as expressed in the statute which the rule implements, or, if the proposed rule affects private property rights, that a less-restrictive alternative could accomplish the object of the proposed rule the committee shall give the affected agency written notice of its decision. The notice shall be given at least seven days prior to any hearing scheduled for consideration of or adoption of the proposed rule pursuant to RCW 34.05.320. The notice shall include a statement of the review committee's findings and the reasons therefor. When the agency holds a hearing on the proposed rule, the agency shall consider the review committee's decision.

NEW SECTION. Sec. 5. A new section is added to Title 64 RCW to read as follows:

Private property shall not be taken or damaged for private or public use unless the owner has received just compensation for his or her loss. Title for any private property taken for public use shall be held by the state or local government, and shall not be sold or otherwise transferred to any private individual or organization unless first offered to the original owner or his or her heirs or successors for fair compensation. Private property taken for public use must be for the actual use of the public and must be open and available to the public for its designated use. A taking of private property for the public benefit, welfare, or interest alone does not constitute public use.

NEW SECTION. Sec. 6. A new section is added to Title 64 RCW to read as follows:

(1) A county or city, or any political subdivision or agency thereof, that proposes an ordinance or rule that would restrict the property rights of landowners shall mail to each landowner the information required of the state by RCW 34.05.320 (1) and (5).

(2) No zoning ordinance or land use regulation enacted or adopted after the effective date of this act that deprives any landowner of the ability to make a reasonably profitable use of any portion of his or her real property without just compensation is valid.

(3) For purposes of this section, the term "landowner" includes any person with an identifiable interest in real property located within the state.

NEW SECTION. Sec. 7. A new section is added to Title 64 RCW to read as follows:

The state of Washington shall, when requested by the landowner, provide legal representation to any owner of land located in the state where the owner has been deprived of the profitable use of any portion of his or her land without just compensation by the federal government, the state, a county or city, or any political subdivision or agency thereof. Representation extends only to securing just compensation on behalf of the landowner, and any sums recovered as attorney fees are the property of the state. For purposes of this section, any governmentally imposed restriction upon the control over property typically accorded landowners is presumed to constitute a deprivation of profitable use. If the state fails to provide legal representation in accordance with the terms of this section, the state is liable to the landowner for the reasonable attorney fees expended by him or her in securing just compensation and in securing reimbursement from the state for such fees.

NEW SECTION. Sec. 8. This act shall be submitted to the people for their adoption and ratification, or rejection, at the next succeeding general election to be held in this state, in accordance with Article II, section 1 of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof.