BILL REQ. #: H-4427.1
State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 01/26/2006. Referred to Committee on Judiciary.
AN ACT Relating to providing fairness in government control of property; amending RCW 36.70A.060 and 36.70A.172; adding a new section to chapter 8.26 RCW; adding new sections to chapter 64.40 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature intends by this act to
protect the use and value of private property while providing for a
healthy environment and ensuring that government agencies do not damage
the use or value of private property, except if necessary to protect
the public health and safety. The legislature also intends to
recognize and promote the unique interests, knowledge, and abilities
that private property owners have to protect the environment and land.
To this end, government agencies must be required to identify and
encourage participation in voluntary cooperative environmental
enhancement programs with willing property owners.
NEW SECTION. Sec. 2 A new section is added to chapter 8.26 RCW
to read as follows:
(1) Eminent domain may not be used by a state agency or local
public agency to acquire property for private use. Eminent domain is
limited to the purpose of acquiring property for physical use by the
public, such as for the physical siting of public facilities.
(2) Prior to transferring any property acquired by a state or local
public agency through eminent domain to private persons or entities
under subsection (1) of this section, the agency shall offer to sell
the property to the person, persons, or entities from whom the property
was acquired for an amount equal to what the person, persons, or
entities received from the agency.
NEW SECTION. Sec. 3 A new section is added to chapter 64.40 RCW
to read as follows:
(1) Prior to taking any action which may unnecessarily damage the
use or value of private property, an agency must consider: The purpose
of the regulation; any actual harm or public nuisance that is to be
prevented by the regulation; the parcels of property that will be
affected by the regulation; estimated damage to the use and value of
the affected parcels; and steps the agency has taken or will take to
accomplish the intended purpose by encouraging participation in
voluntary cooperative environmental enhancement programs with willing
property owners.
(2) For purposes of this section and sections 4 and 5 of this act,
the following definitions apply:
(a) "Private property" means an interest in land or improvements
thereon, vested water rights, and crops, forest products, minerals, or
other natural resources that are owned by a nongovernmental entity.
(b) "Damage" means to:
(i) Divert water either above or below the surface onto private
property from a source constructed or maintained by an agency, without
explicit written permission of the property owner;
(ii) Prohibit or restrict any use, or size, scope, and intensity of
any use, legally existing or allowed by local ordinance as of January
1, 1996, unless such use is otherwise exempted from the definition of
"damage" in this section;
(iii) Prohibit actions by a private property owner reasonably
required to prevent or mitigate harm from fire, flooding, erosion, or
other natural disasters or conditions that would impair the use or
value of private property;
(iv) Implement buffer restrictions on private property where there
is no substantial documented evidence of either: Actual environmental
harm on the site at issue; a public nuisance as defined in RCW
9.66.010; or an actionable nuisance as defined in RCW 7.48.010;
(v) Prohibit maintenance or removal of trees that threaten to cause
harm to people, animals, or buildings, or to obstruct views;
(vi) Prohibit the continued operation, maintenance, or repair of
existing tide gates or other infrastructure reasonably required for the
protection of the use or value of private property; or
(vii) Prohibit or restrict operations and maintenance of structures
necessary for the operation of irrigation facilities including, but not
limited to, diversions, operation structures, canals, drainage ditches,
delivery systems, or the full beneficial use of water rights associated
with these structures.
"Damage" does not include adoption or enforcement of public health
and safety laws or regulations to preserve or protect human life
including: Fire and building code restrictions; structural
requirements to prevent harm from earthquakes, flooding, or other
natural disasters; limitations on the operation of sex offender housing
or adult entertainment; requiring adherence to chemical use
restrictions adopted by the United States environmental protection
agency; worker health and safety laws or regulations; wage and hour
laws; dairy nutrient management restrictions under chapter 90.64 RCW;
or regulations or abatement orders necessary to prevent public
nuisances as defined in RCW 9.66.010 or actionable nuisances as defined
in RCW 7.48.010.
(c) "Damages" means compensation equal to the amount of the fair
market value of the affected property that has been decreased by the
action, plus any costs and attorneys' fees incurred by the property
owner in seeking to enforce this act.
(d) "Action" means to: Enact or adopt ordinances, regulations, or
rules; enforce or apply ordinances, regulations, or rules to private
property; or make decisions to undertake physical actions, such as in
(b)(i) of this subsection.
NEW SECTION. Sec. 4 A new section is added to chapter 64.40 RCW
to read as follows:
If, after completing the considerations in section 3(1) of this
act, the agency decides to take action, other than enacting or adopting
ordinances, regulations, or rules that will damage the use or value of
private property, the agency shall first pay the property owner damages
as defined in section 3 of this act. This section shall not be
construed to limit an agency's ability to waive, or issue variances
from, other legal requirements. An agency that chooses not to take
action that will damage the use or value of private property is not
liable under this section.
NEW SECTION. Sec. 5 A new section is added to chapter 64.40 RCW
to read as follows:
In considering whether to waive or grant a variance from an
ordinance, regulation, or rule in order to avoid responsibility of
paying damages as provided in section 4 of this act, an agency may not
charge a fee to the property owner in excess of fifty dollars.
Sec. 6 RCW 36.70A.060 and 2005 c 423 s 3 are each amended to read
as follows:
(1)(a) Except as provided in RCW 36.70A.1701, each county that is
required or chooses to plan under RCW 36.70A.040, and each city within
such county, shall adopt development regulations on or before September
1, 1991, to assure the conservation of agricultural, forest, and
mineral resource lands designated under RCW 36.70A.170. Regulations
adopted under this ((subsection may)) chapter shall not prohibit uses
legally existing on any parcel prior to their adoption and shall
((remain in effect until the county or city adopts development
regulations pursuant to RCW 36.70A.040)) not interfere with duties
required under chapter 64.40 RCW. Such regulations shall assure that
the use of lands adjacent to agricultural, forest, or mineral resource
lands shall not interfere with the continued use, in the accustomed
manner and in accordance with best management practices, of these
designated lands for the production of food, agricultural products, or
timber, or for the extraction of minerals.
(b) Counties and cities shall require that all plats, short plats,
development permits, and building permits issued for development
activities on, or within five hundred feet of, lands designated as
agricultural lands, forest lands, or mineral resource lands, contain a
notice that the subject property is within or near designated
agricultural lands, forest lands, or mineral resource lands on which a
variety of commercial activities may occur that are not compatible with
residential development for certain periods of limited duration. The
notice for mineral resource lands shall also inform that an application
might be made for mining-related activities, including mining,
extraction, washing, crushing, stockpiling, blasting, transporting, and
recycling of minerals.
(2) Each county and city shall adopt development regulations that
protect critical areas that are required to be designated under RCW
36.70A.170. For counties and cities that are required or choose to
plan under RCW 36.70A.040, such development regulations shall be
adopted on or before September 1, 1991. For the remainder of the
counties and cities, such development regulations shall be adopted on
or before March 1, 1992.
(3) Such counties and cities shall review these designations and
development regulations when adopting their comprehensive plans under
RCW 36.70A.040 and implementing development regulations under RCW
36.70A.120 and may alter such designations and development regulations
to insure consistency.
(4) Forest land and agricultural land located within urban growth
areas shall not be designated by a county or city as forest land or
agricultural land of long-term commercial significance under RCW
36.70A.170 unless the city or county has enacted a program authorizing
transfer or purchase of development rights.
Sec. 7 RCW 36.70A.172 and 1995 c 347 s 105 are each amended to
read as follows:
(1) In designating and protecting critical areas under this
chapter, counties and cities shall include the best available science
in developing policies and development regulations to protect the
functions and values of critical areas. ((In addition,)) Counties and
cities shall give special consideration to voluntary conservation or
protection measures necessary to preserve or enhance anadromous
fisheries, except that a city, county, or state agency shall not compel
a private property owner to participate in a voluntary conservation or
protection program as a condition of receiving any other permit or
approval under this chapter. Nothing in this chapter shall be
construed to authorize an interference with the duties required in
chapter 64.40 RCW.
(2) If it determines that advice from scientific or other experts
is necessary or will be of substantial assistance in reaching its
decision, a growth management hearings board may retain scientific or
other expert advice to assist in reviewing a petition under RCW
36.70A.290 that involves critical areas.
NEW SECTION. Sec. 8 The provisions of this act are to be
liberally construed to effectuate the intent, policies, and purpose of
this act.
NEW SECTION. Sec. 9 Nothing in this act shall diminish any other
remedy provided under the United States or Washington state
Constitution or federal or state law, and this act is not intended to
modify or replace any such remedy.
NEW SECTION. Sec. 10 Subheadings used in this act are not any
part of the law.
NEW SECTION. Sec. 11 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.