BILL REQ. #:  S-4271.1 

Read first time 01/16/2006.   Referred to Committee on Government Operations & Elections.

     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 8.04 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 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 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 8.04 RCW to read as follows:
     (1) Eminent domain may not be used by state or local agencies to provide property for private use, but eminent domain is limited to the purpose of obtaining property for physical use by the public, such as for the physical siting of public facilities.
     (2) Prior to transferring any property acquired by government agencies through eminent domain to private persons or entities, the government agency shall offer to sell the property to the person, persons, or entities from whom the property was acquired at the amount he or she received from the agency.

NEW SECTION.  Sec. 3   A new section is added to chapter 64.40 RCW to read as follows:
     (1) To avoid unnecessarily damaging the use and value of private property, prior to taking any action which may 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 section 4 of this act, the following definitions apply unless the context clearly requires otherwise:
     (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: Actual environmental harm on the site at issue; a nuisance as defined in RCW 7.48.010; or a public nuisance as defined in RCW 9.66.010;
     (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 tidegates or other infrastructure reasonably required for the protection of the use or value of private property;
     (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 in chapter 90.64 RCW; or regulations or abatement orders necessary to prevent nuisances as defined in RCW 7.48.010 or public nuisances as defined in RCW 9.66.010.
     (c) "Damages" means compensation equal to the amount that the fair market value of the affected property 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 to make decisions to undertake physical actions.

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, which 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 agencies' ability to waive, or issue variances from, other legal requirements. An agency which chooses not to take action which 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 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, provided that no city, county, or state agency shall compel participation by a private property owner 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 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 Constitutions, or federal or state law, and this act is not intended to modify or replace any such remedy.

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.