BP BHEAD INT S [atlas:bill]

AN ACT Relating to the regulation of private property; and adding a new chapter to Title 64 RCW.

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

NEW SECTION. Sec. 1. This chapter is intended to assure protection to private property owners' rights under the state and federal constitutions. This chapter is not intended to enlarge or restrict existing constitutional rights. The provisions of this chapter are to be liberally construed to effectuate the policies and purposes of this chapter. In the event of conflict between this chapter and any other statute, ordinance, rule, or executive order, this chapter governs.

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

(1) "Compensation" means the reduction in the present fair market value of property measured in dollars that is attributable to a restriction on the use of private property.

(2) "Governmental entity" means Washington state, state agencies, agencies and commissions funded fully or partially by the state, counties, cities, and other political subdivisions.

(3) "Imposes" means for a governmental entity to apply any restriction on land use to a particular piece of property in response to the property owner's use or request to use the property in any particular manner.

(4) "Private property" means a monetary interest in real property recognized under Washington law, including:

(a) Land;

(b) An interest in land or improvements on the land;

(d) Any crops, forest products, or resources capable of being harvested or extracted.

(5) "Regulatory taking" occurs when a governmental entity imposes a restriction which interferes with the owner's use of real property or a portion of real property, with the owner's right to exclude others, or with the right to transfer ownership or possession and that decreases by twenty percent or more the fair market value of the owner's entire monetary interest in the separate and legally created parcel of property subject to the restriction in question.

(6) "Restriction" means a limitation, requirement, or restriction by a governmental entity that limits the use of private property, including ordinances, resolutions, rules, statutes, and conditions of development approval.

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

NEW SECTION. Sec. 3. (1) A governmental entity shall pay compensation to the owner of real property when it causes a regulatory taking of any part of the property. Compensation need not be paid in the form of cash as long as the value given by the governmental entity at least equals the compensation required under this chapter.

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

(a) Is imposed under an ordinance, resolution, or rule adopted by local government prior to January 1, 1997, or adopted by local government because the restriction is required under a state law that was adopted by the legislature prior to January 1, 1997. Restrictions imposed under these ordinances, resolutions, or rules that are amended after the effective date of this act create a duty to pay compensation only to the extent the amendment increases the restriction;

(b) Only prevents, mitigates, or abates the injuries to another person or property that are likely to be caused by an unreasonable use of property;

(c) Only mitigates the adverse effects to another person or property caused by the use of the property subject to the restriction;

(d) Is part of a zoning ordinance common to the area surrounding the property that regulates the type or intensity of use permitted on the property.

(3) Restrictions imposed by more than one governmental entity that cumulatively decrease the property value by twenty percent or more require each responsible governmental entity to pay its share of the decrease.

(4) The compensation required under this section shall not exceed four hundred thousand dollars to any landowner for any restriction on land use of a separate and legally created parcel of real property.

(5) A governmental entity may not require waiving the compensation under this section as a condition of approval of a use or another permit or as a condition for subdivision of land.

(6) The state is responsible for the compensation liability of other governmental entities for a restriction on the use of property which is mandated by state law or a state agency.

(7) Claims for compensation as a result of a regulatory taking of private property under this chapter must be brought within the time period specified in RCW 4.16.080.

(8) When compensation under this chapter is ordered by a court or accepted by a landowner, the property owner shall deliver to the governmental entity paying compensation title to whatever accurately represents the property interest that has been taken, such as a conservation easement, view easement, or fee title.

NEW SECTION. Sec. 4. (1) A property owner seeking to enforce this chapter must request compensation from the department of the governmental entity that is imposing the restriction. A property owner is not required to pursue any other administrative remedies relating to a pending request for a permit to use the property in any particular manner.

(2) The governmental entity has forty-five days to reject a property owner's request for compensation under subsection (1) of this section. If the request is rejected in whole or in part, this chapter may be enforced in superior court against a governmental entity that fails to comply with this chapter by the owner of the property subject to the jurisdiction of that governmental entity. The property owner may also raise any state or federal statutory or constitutional claims arising from the government's decision to reject in whole or in part the property owner's request for compensation. The property owner may also request compensation from the executive, or designee, of the governmental entity imposing the restriction. Such a request shall not be a prerequisite to enforcing this chapter in superior court.

(3) The superior court shall rule on all issues de novo and give no deference to findings issued by the government, if any, relating to the government's compliance with this chapter. The property owner enforcing this chapter has the burden to prove that the private property was devalued by twenty percent or more and that the devaluation was caused by the governmental entity's restriction on land use. The government has the burden of proving that any exception to the compensation requirement in section 3(2) of this act applies. Mere assertion that the restriction is to prevent or alleviate public harm is insufficient to insulate the government from responsibility for paying compensation. A local government also has the burden of joining the state in any litigation if the local government claims the state is responsible for paying compensation under section 3(6) of this act.

(4) A prevailing property owner is entitled to recover the costs of litigation, including reasonable attorneys' fees.

NEW SECTION. Sec. 5. This chapter may be known and cited as the regulatory takings fairness act.

NEW SECTION. Sec. 6. 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. 7. Sections 1 through 6 of this act constitute a new chapter in Title 64 RCW.