BP BHEAD INT S [atlas:bill]

AN ACT Relating to the protection of private property; amending RCW 4.16.100; adding a new section to chapter 7.06 RCW; adding a new section to chapter 4.84 RCW; and adding a new chapter to Title 64 RCW.

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

NEW SECTION. Sec. 1. 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) "Existing use" means any use that does not constitute a nuisance and that is actually engaged on the property at any time within six years prior to the imposition of the subject restriction. Forest practices shall be considered an existing use for forest lands as those terms are defined in the forest practices act, chapter 76.09 RCW.

(3) "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.

(4) "Impose" means for an official or employee of a government entity to apply a restriction on land use to all or any portion of private real property in response to the owner's use, proposed use, or permit application.

(5) "Local land use legislation" means any plan, ordinance, resolution, policy, or rule that has general application and that 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.

(6) "State land use legislation" means any rule, administrative procedure, policy guideline, or statute that has general application and that is adopted by the state legislature, any agency, or any board or commission that is funded, in whole or in part, by the state that restricts, or authorizes restrictions on, the use of all or a portion of the private real property.

(7) "Nuisances" include:

(a) Nuisances as defined by the laws of the state of Washington, as the same may be amended from time to time; and

(b) Nuisances under common law standards for determining nuisances, without regard to mere declarations that an activity constitutes a nuisance.

(8) "Real property" means any interest in real property recognized under Washington law, including water and natural resources such as crops, trees, and minerals, while such resources are attached to land.

(9) "Reasonable economically beneficial or productive uses" are economic uses of property that are more than nominal or passive, that are proportionate to and compatible with actual uses of property in the immediate area at the time of the imposition, and that do not constitute a nuisance.

(10) "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.

(11) "Emergency" means a situation that presents an immediate danger to the public peace, health, or safety.

NEW SECTION. Sec. 2. (1) Except in emergencies that require the imposition of moratoria or prohibitions on development, state or local 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 state or local land use legislation without holding a public hearing on the proposed state or local land use legislation. The required public hearing may be held by the governing body or a planning commission. Notice of the required public hearing shall be published at least thirty and not more than forty-five days in advance of the public hearing in any newspaper published in the jurisdiction of the government entity or having a general circulation therein, 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 in a location other than with classified advertisements. The published notice must notify readers of the following:

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

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

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

(e) The right under subsection (4) of this section to propose alternatives to the proposed state or local 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) The requirement for published notice in subsection (2) of this section is not applicable when the government entity mails notice containing the same information to each person listed with the county assessor as a property owner subject to the proposed state or local land use legislation.

(4) Any resident or owner of any interest in real property, including leasehold interests, subject to the proposed state or local land use legislation or any resident or owner of any interest in real property, including leasehold interests, adjacent to property subject to the proposed state or local land use legislation may offer alternatives to the proposed state or local land use legislation to fulfill the stated purposes. Alternatives must be submitted in writing prior to the public hearing required by subsection (2) of this section. The government entity may continue its hearing to a later date in order to provide time to consider alternatives. The date, time, and location of the continuation of the hearing must be announced at the public hearing and need not be published again under subsection (2) of this section. Prior to the adoption of the state or local land use legislation, the government entity must consider all proposed alternatives, summarize in writing all proposed alternatives, and respond to the alternatives by category or subject matter, indicating how the state or local land use legislation as proposed for final adoption reflects consideration of the alternatives. The government entity need not mail the responses to the proponents of alternatives, but must make the written summary of responses available to the public at the next public hearing at which the state or local land use legislation is considered for adoption.

(5) Any resident or owner of any interest in real property, including leasehold interests, subject to the proposed state or local land use legislation or any resident or owner of any interest in real property, including leasehold interests, adjacent to property subject to the proposed state or local 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 state or local 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 state or local land use legislation or in deciding to reject or accept alternatives.

(6) Only the purposes identified under subsection (2)(d) of this section may be used by any party as the purpose for the state or local land use legislation in any proceeding where the validity or interpretation of the state or local land use legislation is at issue.

(7) 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. 3. (1) A government entity may impose the following restrictions on land use without the obligation to provide mitigation or compensation under the provisions of this chapter:

(a) Traditional zoning restrictions that are only those restrictions in a zoning ordinance of a city, county, or town that:

(i) Limit the types of permitted uses and density or intensity of permitted uses throughout a zoning classification, as long as the restrictions do not directly or effectively preclude an existing use of real property or substantially all reasonable economically beneficial or productive uses of a portion of real property; or

(ii) Create property line setbacks, or height and bulk limitations applicable to all properties throughout a zoning classification to the same degree, increase the value of the properties restricted because all properties throughout the zoning classification are subject to the same restriction, and do not vary based on the natural environmental conditions of the restricted properties, such as restrictions to protect wetlands, wildlife habitat, and buffers for the same;

(b) Restrictions that only prevent, mitigate, or abate injuries to another person or property that the government entity is able to demonstrate are likely to be directly caused by a use of the real property that constitutes a nuisance; and

(c) Restrictions that merely require compliance with specified federal laws or regulations that apply to a use of the real property. When a government entity under this chapter chooses directly to enforce or to apply federal laws or regulations to a use of private property, the government entity must mitigate or pay compensation under subsection (2) of this section to the extent the imposition of the restriction exceeds the minimum requirements of the federal laws or regulations.

(2) With the exception of restrictions under subsection (1) of this section, when a government entity imposes a restriction on the use of any portion of real property that decreases by fifteen percent or greater the fair market value of the affected real property, either by precluding an existing use, by precluding uses permitted by the traditional zoning at the time of imposition of the restriction, or by precluding substantially all economically beneficial or productive uses, then the government entity shall:

(a) Offer to mitigate the burden 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 land development or permit standards, such as clustering;

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

(iii) Allowing transfer of development rights; or

(iv) Exchanging surplus property owned by the government entity; or

(b) Pay compensation to the owner of a parcel of real property, together with interest at the maximum rate permitted under RCW 19.52.020, compounded annually from the date of imposition of the restriction. A property may reject an offer of mitigation under (a) of this subsection and still seek compensation under section 4 of this act, but the amount of compensation due under this section shall be reduced by fair market value of the mitigation offered. A property owner may also accept mitigation and still seek compensation to the extent the mitigation fails to recover the loss in fair market value caused by the restriction.

(3)(a) Restrictions imposed by local government under a plan that is required by state law to be approved by a state agency and has been so approved shall render the state agency responsible for compensation and costs for restrictions required to be imposed under such a plan. Such plans include, but are not limited to, plans under RCW 90.58.090, chapter 400-12 WAC, and WAC 173-100-120. State agencies may issue interpretative rules under RCW 34.05.328(5)(c)(ii) identifying the extent to which local government plans approved by the state agency exceed the requirements of state law. Once such an interpretive rule is issued, local government will be responsible for compensation and costs for any restriction that the state agency has determined to exceed the requirements of state law.

(b) When a restriction appears to be otherwise mandated by state law and within the subject matter of a particular state agency's jurisdiction, the local government entity shall deliver a copy of the request for compensation under section 4(1) of this act to such a state agency within sixty days of receiving the property owner's request for compensation. The state agency shall determine whether the restriction should continue to be imposed and, if so, shall provide compensation within sixty days after receipt of the request for compensation from the local government.

(4) Any easement granted by a property owner to a government entity remains in effect only for the duration of the life of the grantor. Any easement that remains in effect after the death of the grantor is prohibited and unenforceable.

(5) A government entity may not offer a property tax reduction or a property tax exemption to a property owner in exchange for the granting of an easement by a property owner to a government entity.

(6) In the event a state agency is ordered to pay or agrees to pay compensation and costs for a restriction mandated by state law or a state agency, payment of compensation shall be made by the treasurer from the tort claims revolving fund established under RCW 4.92.135. The state agency whose action resulted in the claim must reimburse the tort claims revolving fund from the funds appropriated to the agency for that purpose. Agencies against which claims for compensation have been made under this chapter shall report the status of all such claims to the office of financial management annually until they are resolved and the tort claims revolving fund has been reimbursed for any final judgment or settlement paid. State agencies must include in each budget request sufficient funds to reimburse the tort claims fund for any payments previously made in connection with its actions plus a reasonable estimate of amounts likely to be paid with respect to any unresolved claims then pending.

(7) An award or payment of compensation made by a government entity under this section shall operate to grant to and vest in the government entity the right, title, and interest in the property for which the compensation has been paid. 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. 4. (1) A real property owner seeking to enforce the requirements under section 3 of this act must request compensation from the government entity imposing the restriction by filing, with a person identified under RCW 4.28.080 or 4.92.020 when the request is made from the state or a state agency, 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 a pending request for a permit to use the real property in any particular manner or any other administrative remedies relating to use to establish a justiciable claim under this chapter. The request shall be on a form available from the government entity. The form shall be substantially as follows:

REQUEST FOR COMPENSATION OR MITIGATION

UNDER THE PRIVATE PROPERTY PROTECTION ACT

Pursuant to the Private Property Protection Act, __________________________(name of property owner) requests compensation or mitigation from _________________________(name of government entity) for the imposition of a restriction on the use of real property. This restriction was imposed when _______________________(name of government official) on _______ (date) applied___________________________________(identification of the restriction) to the use of my property located at _____________________________(location of property).

I believe that I am entitled to compensation under the Private Property Protection Act. I am requesting that ___________________(name of government entity) provide compensation in the amount of ___________________ or mitigation under the act as follows:__________________________________________________________________________________________________________________________________.

(2) The government entity responsible for mandating the imposition of a restriction on the use of real property has sixty days, from the date of receipt, to reject or accept a real property owner's request for compensation under subsection (1) of this section. The responsible 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 3 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. 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 shall consider the value of mitigation offered by the government entity under section 3(2)(a) of this act.

(5) In defending against a claim for compensation:

(a) A government entity that intends to rely on the exceptions set forth in section 3(1) of this act has the burden to prove by clear and convincing evidence that the restriction qualifies as an exception and is exempt from the compensation requirement of this chapter.

(b) A government entity has the burden to prove the value of any mitigation offered under section 3(2)(a) of this act.

(6) In defending against a claim for compensation filed in the superior court, a government entity that intends to rely on section 3(3) 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) At any time, the government entity may choose to no longer impose the restriction at issue in whole or in part and pay the owner for the temporary restriction of the property, by paying the interest due under section 3(2)(b) of this act.

(8) 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. 5. A new section is added to chapter 7.06 RCW to read as follows:

Claims for compensation under the private property protection act are subject to mandatory arbitration under this chapter where the sole issue is the amount of compensation required under that act.

NEW SECTION. Sec. 6. This chapter 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:

The following actions shall be commenced 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 4, 6, 9, and 10 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 4, 6, 9, and 10 of this act), including reasonable attorneys' fees. A real property owner prevails under section 3 of this act if he or she receives more compensation than offered by the government entity under section 4(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. Sections 1 through 4, 6, 9, and 10 of this act constitute a new chapter in Title 64 RCW.