BP BHEAD INT H

AN ACT Relating to the protection of private property; amending RCW 4.16.100; adding a new section to chapter 4.84 RCW; adding a new chapter to Title 64 RCW; and providing effective dates.

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

NEW SECTION. Sec. 1. The legislature finds and declares that:

(1) Article I, section 16 of the state Constitution promises protection of the people's rights in their private property by providing that "No private property shall be taken or damaged for public or private use without just compensation having been first made." This act is intended to avoid the damaging of private property by regulation and provide a practical remedy when private property is damaged by government regulation;

(2) The Fifth Amendment to the United States Constitution's guarantee that private property shall not be taken for public use without just compensation was designed to bar government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole;

(3) The private right to own, possess, and use private property is a fundamental civil right and an essential feature of living in a free society;

(4) The public has an interest in protecting natural, environmental, and aesthetic resources. The public desire to provide such public amenities should be supported by public funds;

(5) The cumulative reduction in the value of private property rendered practically unusable by government regulation limits the tax base and drives up the property tax rates of others;

(6) The economy of Washington state is harmed by uncompensated or unmitigated restrictions on real property by reducing the net worth of privately held real estate which could be used productively in creating businesses and jobs for Washington citizens;

(7) The crucial goal of making housing affordable has been hampered by restrictions on the use of land which reduce the supply of viable building sites by driving up the price of such sites;

(8) Many restrictions on land use exist to protect environmental considerations which, due to the lack of protection over the decades, has resulted in negative cumulative impacts of land use on the environment. Fairness and justice require that the public, which cumulatively over time has contributed to negative environmental impacts, pay the costs of providing remedies, rather than forcing a few members of society to pay for the necessary remedies; and

(9) This act is necessary to ensure that when the public desires natural, environmental, scenic, or aesthetic values on private property which leave the owner of the private property owner with no practical use of any portion of private property, the public will either mitigate the damage to the private property owner caused by restrictions on land use or provide compensation.

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

(1) "Compensation" means remuneration which equals the reduction in the fair market value of private real property that is attributable to a restriction on the use of the property or any part thereof.

(2) "Government entity" means Washington state, state agencies, agencies and commissions funded, in whole or in part, by the state, counties, cities, towns, special districts, municipal corporations, or quasi-municipal corporations.

(3) "Impose" means for an official or employee of a government entity to apply a restriction on land use to a particular piece of real property in response to the property owner's use or project permit application under chapter 36.70B RCW.

(4) "Real property" means any interest in real property recognized under Washington law, including water, crops, forest products, minerals, or other natural resources.

(5) "Reasonable economically beneficial or productive uses" are uses of property which are more than nominal or passive and which are proportionate to the owner's reasonable economic expectations in light of the historically permitted uses of the property and property within the same general area as the subject property in addition to any other factors relating to reasonable expectations.

(6) "Restriction" or "restricting" means a limitation, requirement, regulation, or restriction by a government entity that limits the use of real property, including those imposed by the application of ordinances, resolutions, rules, regulations, policies, statutes, and conditions of land use approval.

(7) "Unreasonable use of real property" means use of real property that a reasonable person in the community where the real property is located would consider unreasonable in light of the historically permitted uses of the subject real property and of similar real property within the same general area as the subject real property. This definition is intended to include all actions that constitute nuisances under common law.

(8) "Land use legislation" means any plan, ordinance, resolution, policy, or rule which has general application and which is adopted by a local government entity that restricts, or authorizes restrictions on the use of all or a portion of the private real property.

NEW SECTION. Sec. 3. (1) Except in cases of emergency that require the imposition of moratoria or prohibitions on development that are effective for a period not to exceed sixty days to protect life or prevent physical damage to property, land use legislation may be enacted after the effective date of this section only after the procedural requirements of this section have been followed.

(2) A government entity may not enact land use legislation without holding a public hearing on the proposed land use legislation. The required public hearing may be held by the governing body, a planning commission, or both. Notice of the public hearing shall be published at least thirty and not more than forty days in advance of the public hearing in the most widely circulated newspaper in the jurisdiction of the government entity, with the advertisement intentionally designed to attract public attention. The advertisement shall be of a size no smaller than four inches by four inches and shall be placed consistently in the same section or location in the paper other than with classified advertisements. The published notice must notify readers of the following:

(a) A general description of the proposed land use legislation;

(b) The time, date, and location of the public hearing for consideration of the proposed land use legislation;

(d) All of the purposes of the proposed land use legislation;

(e) The right of persons to propose alternatives to the proposed land use legislation which must be submitted in writing prior to the public hearing; and

(f) The obligation of the government entity to respond to each alternative in writing.

(3) Any person affected by the proposed legislation may offer alternatives to the proposed legislation to fulfill the stated purposes. Alternatives must be submitted in writing prior to the public hearing required by subsection (2) of this section. Prior to the adoption of the land use legislation, the government entity must consider all proposed alternatives and must respond in writing stating the reason or reasons each alternative was rejected or accepted in whole or in part. These written responses must be made available to the public.

(4) The county treasurer must include with each property tax statement required under RCW 84.56.050 a statement identifying the dates during the following year at which notices required by subsection (2) of this section will be published on behalf of all government entities within the county. The statement must also identify the paper in which the notice will be published. The county treasurer may adopt a reasonable timeline and fee applicable to government entities to cover the cost of submitting the information required for inclusion in this statement.

(5) Any resident or real property owner subject to the land use legislation may enforce the requirements under this section in the superior court in the county where the government entity is located by filing a petition for a writ of prohibition pursuant to chapter 7.16 RCW, prohibiting the adoption, implementation, or enforcement of the land use legislation without complying with the procedural requirements of this section. In enforcing this section, the superior court may only consider whether the government entity complied with the procedural requirements of this section, but may not substitute its judgment for the judgment of the government entity in deciding to enact the proposed land use legislation or in deciding to reject or accept alternatives.

(6) This section does not preclude any action at law or equity that a real property owner would have had if this chapter had not been enacted.

NEW SECTION. Sec. 4. (1) If a government entity imposes a restriction on the use of any portion of real property and that restriction damages the property by decreasing the fair market value of the real property by either precluding an existing or previously existing use, which is not an unreasonable use of property, or precluding substantially all reasonable economically beneficial or productive uses of any portion of private real property, then the government entity shall:

(a) Pay compensation to the owner of a parcel of real property; or

(b) With the property owner's consent, mitigate the damage to the real property caused by the restriction by using methods of mitigation which include, but are not limited to, those recognized in RCW 36.70A.070(5) and 36.70A.090, such as:

(i) Adjusting landing development or permit standards, such as clustering;

(ii) Increasing or modifying the density, intensity, or use of areas of development;

(iii) Allowing transfer development rights; or

(iv) Exchanging surplus property owned by the government entity.

(2) The mitigation or compensation requirement in subsection (1) of this section does not apply when:

(a) The restriction only prevents, mitigates, or abates injuries to another person or property that the government entity is able to demonstrate are likely to be directly caused by an unreasonable use of the real property; or

(b) The restriction:

(i) Is part of a zoning ordinance common to the area surrounding the real property;

(ii) Creates limitations that burden every parcel of real property with the same zoning designation equally, including property line set back restrictions and building height limitations, but not including set back restrictions which vary based on the particular natural environmental conditions of the real property, such as buffers for wetlands or wildlife habitat; and

(iii) In effect compensates all property owners subject to the restrictions by the reciprocal nature of the restrictions; or

(3) The state is responsible for compensation and costs awarded when other government entities impose a restriction on the use of real property that is mandated by state law or a state agency. When a state-mandated restriction falls within the jurisdiction of a state agency, payment of compensation must be from the operating funds appropriated to the agency. Agencies paying compensation and costs under this section shall report all payments to the office of financial management within five days of payment.

(4) An award or payment of compensation under this section shall operate to grant to and vest in any government entity that pays compensation the right, title, and interest in the property for which the compensation has been paid and, upon receipt of the compensation, the property owner shall deliver to the government entity a deed to the property interest taken by the restriction. If the real property owner and government entity cannot agree, the superior court shall determine the interest that accurately represents the real property interest which has been purchased by the government entity, such as a conservation easement or fee title, and determine the form of the deed to be delivered. Filing of the deed is at the government entity's expense and the government entity shall refund any property taxes the owner pays for the property transferred after the date the restriction was imposed.

NEW SECTION. Sec. 5. (1) A real property owner seeking to enforce the requirements under section 4 of this act must request compensation from the government entity imposing the restriction by filing a written request for compensation that identifies the restriction at issue and specifies the level of compensation or type of mitigation requested. A real property owner is not required to pursue any other administrative remedies relating to use or a pending request for a permit to use the real property in any particular manner to establish a justiciable claim under this chapter.

(2) The government entity has thirty days to reject or accept a real property owner's request for compensation under subsection (1) of this section. The government entity may choose not to impose the restriction, to grant a variance from the restriction, to pay compensation, to offer to mitigate the burden caused by the imposition of the restriction, or any combination of these options.

(3) The requirements under section 4 of this act may be enforced in superior court against a government entity by the owner of real property subject to the restriction within the time period established in RCW 4.16.100. Property owners may also raise any state or federal statutory or constitutional claims arising from the government entity's imposition of the restriction or the decision to reject in whole or in part the property owner's request for compensation. It is not necessary for the restriction to be challenged under any other basis or for a property owner to seek relief through any other process before a claim for compensation can be made.

(4) The superior court shall rule on all issues de novo and give no deference to findings, if any, issued by the government entity relating to its compliance with this chapter. Property owners are entitled to a jury trial on the amount of compensation required under this chapter as in cases under eminent domain. In calculating the amount of compensation to be paid, the court may consider the value of mitigation offered by the government entity under section 4(1)(b) of this act.

(5) In defending against a claim for compensation, a government entity that intends to rely on the exceptions set forth in section 4(2) of this act has the burden to demonstrate by clear and convincing evidence that the restriction qualifies as an exception and is exempt from the compensation requirement of this chapter.

(6) In defending against a claim for compensation filed in the superior court, a government entity that intends to rely on section 4(4) of this act for liability by the state, must join the state as a defendant within thirty days of the service of the original complaint seeking compensation under this chapter.

(7) A prevailing plaintiff or petitioner is entitled to recover the costs incurred in enforcing this chapter as provided in section 8 of this act.

NEW SECTION. Sec. 6. This act does not apply to actions by government entities in their exercise of the power of eminent domain.

Sec. 7. RCW 4.16.100 and Code 1881 s 29 are each amended to read as follows:

Within two years:

(1) An action for libel, slander, assault, assault and battery, or false imprisonment.

(2) An action upon a statute for a forfeiture or penalty to the state.

(3) An action under the private property protection act, chapter 64.-- RCW (sections 1 through 6 and 9 through 11 of this act).

NEW SECTION. Sec. 8. A new section is added to chapter 4.84 RCW to read as follows:

A prevailing plaintiff or petitioner is entitled to recover the costs incurred in enforcing chapter 64.-- RCW (sections 1 through 6 and 9 through 11 of this act), including reasonable attorneys' fees. A real property owner prevails under section 4 of this act if he or she receives more compensation than offered by the government entity under section 5(2) of this act.

NEW SECTION. Sec. 9. This chapter may be known and cited as the private property protection act.

NEW SECTION. Sec. 10. 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.

NEW SECTION. Sec. 11. Section 3(4) of this act shall take effect January 1, 1997. The remainder of this act shall take effect June 15, 1996, and apply prospectively to restrictions imposed after that date.

NEW SECTION. Sec. 12. Sections 1 through 6 and 9 through 11 of this act shall constitute a new chapter in Title 64 RCW.