AN ACT Relating to regulatory takings of private property; adding a new chapter to Title 8 RCW; adding a new section to chapter 35.21 RCW; adding a new section to chapter 35A.21 RCW; and adding a new section to chapter 36.01 RCW.

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

NEW SECTION. Sec. 1. (1)(a) Whenever implementation by the state or any of its political subdivisions of a scheme regulating the use of land operates to reduce the fair market value of a parcel of real property to less than fifty percent of the greater of either the assessed valuation or the fair market value, immediately prior to such implementation, the parcel is deemed to be taken for public use.

(b) The following definitions apply throughout this chapter:

(i) "Parcel" means all, or a discrete portion not less than twenty percent of a contiguous land of an owner or an operating unit, though comprising separate legal descriptions, whichever is less.

(ii) "Owner" includes one or more natural or legal persons who own the parcel, whether as sole owner, marital community, cotenants, or tenants in partnership.

(iii) "Scheme regulating the use of land" means one regulation or government action affecting the use of land; or more than one such regulation or action, though occurring at different times or by different governmental entities, with the same policy objectives, such as development moratoria, zoning, health regulations, safety regulations, aesthetic regulations, sensitive‑area regulations, and environmental regulations, whether such regulation or action is interim or permanent. A scheme regulating the use of land does not include any regulation or government action of the federal government or regulation or government action of the state or any local governmental entity taken to comply with the minimum requirements of federal law or regulation.

(2)(a) When a parcel of real property has been taken for public use as provided in this chapter, the governmental unit or units that implement the scheme regulating the use of land shall be liable to the owner for compensation under this chapter, and the owner shall have an action at law to recover such compensation. When more than one governmental unit is involved, the court shall determine the proportion each unit is required to contribute to the compensation.

(b) The compensation shall be for the full amount of the decrease in fair market value and shall not be limited to the amount by which the decrease in fair market value exceeds fifty percent. In addition, an owner who prevails in an action for the recovery of such compensation shall be entitled to costs, including reasonable sums for attorneys' fees and for fees of experts, such as engineers and appraisers, whose services are reasonably required to establish the taking and the diminution of value.

(3) Governmental units subject to this chapter shall not make waiver of the provisions of this chapter a condition for approval of the use of real property or the issuance of any permit or other entitlement. Plaintiffs may accept an approval of use, permit, or other entitlement granted by the governmental unit without compromising their rights under this chapter if:

(a) A written reservation of their rights is made at the time of acceptance of the authorization, permit, or other entitlement; or

(b) An oral statement reserving their rights is made before the governmental unit granting the authorization, permit, or other entitlement at a public meeting at which the governmental unit renders its decision.

NEW SECTION. Sec. 2. Compensation is not required by this chapter if the scheme regulating the use of land is an exercise of the police power to prevent or abate a public nuisance as defined at common law.

NEW SECTION. Sec. 3. (1) The statute of limitations for actions brought under this chapter is the statute of limitations for actions for recovery of real property. The statute of limitations begins to run upon the enactment of the scheme regulating the use of land; or the final administrative decision implementing the scheme regulating the use of land affecting plaintiffs' property or by a showing by the plaintiff that application for administrative decision is futile.

(2) A scheme regulating the use of land is implemented with respect to an owner's or user's property when actually applied to that property unless the enactment of the scheme by itself operates to reduce the fair market value of real property, or any legally recognized interest therein, to less than fifty percent of its fair market value for the uses permitted at the time the owner acquired title, without further governmental action and the scheme contains no provision allowing for relief from the scheme's operation.

(3) This chapter applies to schemes regulating the use of land, all or some part of which is implemented after the effective date of this act. No part of a scheme shall be considered for purposes of this chapter if the part was implemented more that ten years before the effective date of this act.

NEW SECTION. Sec. 4. If a natural event or condition, not the fault of the owner, threatens to deprive an owner of land of the land's use or to cause serious damage to the land, and immediate corrective action is required to prevent this deprivation or damage, but this action will violate a state or local law or regulation unless official waiver or permission is obtained, the owner may either:

(1) Apply to the governmental unit charged with enforcing such regulation to take, or to permit the owner to take, the required corrective action. If the governmental unit wrongfully denies waiver or permission or fails to take reasonably timely action upon the application, so that such deprivation or damage occurs, the governmental unit shall be liable to the owner for the diminution in value of the land which occurs; or

(2) Without notifying the governmental unit under subsection (1) of this section, take such corrective action as is reasonably necessary to prevent the threatened deprivation or damage. However, the owner shall notify the governmental unit that he or she has undertaken the corrective action within five days after commencing such action and shall give a general description of the action undertaken. Thereafter, in a legal action brought by the governmental unit, the owner shall be liable for violation of the regulation if a court determines that there was a violation and that an owner would not have qualified for any available waiver or exemption.

NEW SECTION. Sec. 5. If a governmental unit is found by a court to have committed a regulatory taking under section 1 of this act, such unit shall be liable for compensation, measured by the owner's diminution in fair market rental value caused by such taking from the time the scheme that regulated the use of the owner's land became effective until the unit may choose to repeal such scheme. However, if the governmental unit does not choose to repeal the regulatory scheme within a reasonable period of time, to be fixed by the court, then the unit shall be liable for permanent compensation, measured by the diminution of fair market sale value caused by the taking, valued as of the date of trial. This section shall not affect any further remedy that is constitutionally required.

(2) Any permit, authorization, or other entitlement granted under a scheme repealed under subsection (1) of this section shall continue to be valid.

NEW SECTION. Sec. 6. This chapter does not preclude any action at law or equity that an owner would have had if this chapter had not been enacted.

NEW SECTION. Sec. 7. If the state or any of its political subdivisions imposes, changes, or implements any scheme regulating the use of land in such a way as to reduce the previous fair market value of a taxpayer's property, the county assessor shall, on or before the ensuing April 1, adjust the property's assessed value downward by an amount equal to the difference between the fair market value of the property under the new scheme, and the previous fair market value.

NEW SECTION. Sec. 8. It is the policy of the state of Washington that:

(1) If it is in the public interest, safety, health, or welfare that wetlands subject to this chapter are to be purchased for public use and enjoyment or purchased in the public interest, the wetlands shall be appraised at their highest and best economic use, regulatory and administrative rules notwithstanding, to encourage more willing sellers.

(2) If wetlands subject to this chapter are to remain private, they shall be taxed at open space rates.

(3) There shall be no condemnation in the public acquisition of wetlands subject to this chapter.

(4)(a) Historical private hunting areas owned by private property owners in wetlands subject to this chapter be preserved for their use in the future.

(b) If hunting areas in wetlands subject to this chapter are to be taken for public use, they shall be valued according to their highest and best economic use, ordinances, rules, and regulations notwithstanding.

NEW SECTION. Sec. 9. Whenever any compensation is paid to a property owner by the state or by any local governmental entity to compensate for a regulatory taking pursuant to the terms of this chapter, the payor shall cause to be recorded with the county auditor for the county in which the real property is located a notice of compensation for regulatory taking. This notice shall contain a legal description of the affected parcel of real estate, a statement of the reason for compensation, the name of the payor, the name of the owner, and the amount paid. This notice shall perfect a lien against the property as of the time of filing, for the benefit of the payor in the event: (1) The regulatory scheme for which compensation was paid is repealed in whole or in part; (2) the compensated owner subsequently sells all or a portion of the property; and (3) the sales price reflects an enhanced fair market value resulting directly from the repeal of all or part of the regulator scheme. This lien shall be limited to either the amount of compensation originally paid or the amount of enhancement in fair market value at the time of the sale resulting from the repeal of all or part of the regulatory scheme, whichever is smaller.

NEW SECTION. Sec. 10. This chapter shall be known and may be cited as the private property protection act.

NEW SECTION. Sec. 11. A new section is added to chapter 35.21 RCW to read as follows:

Any city or town subject to the provisions of this title is also subject to sections 1 through 10 of this act.

NEW SECTION. Sec. 12. A new section is added to chapter 35A.21 RCW to read as follows:

Any code city subject to the provisions of this title is also subject to sections 1 through 10 of this act.

NEW SECTION. Sec. 13. A new section is added to chapter 36.01 RCW to read as follows:

Any county subject to the provisions of this title is also subject to sections 1 through 10 of this act.

NEW SECTION. Sec. 14. Sections 1 through 10 of this act shall constitute a new chapter in Title 8 RCW.

NEW SECTION. Sec. 15. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.