BP BHEAD INT S

AN ACT Relating to regulatory takings of private property; adding a new section to chapter 35.21 RCW; adding a new section to chapter 35A.21 RCW; adding a new section to chapter 36.01 RCW; adding a new chapter to Title 8 RCW; and declaring an emergency.

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

NEW SECTION. Sec. 1. (1)(a) Whenever implementation by the state or any of its political subdivisions of a scheme directly or indirectly regulating the use of land operates to reduce the fair market value of a parcel of real property immediately prior to such implementation, the parcel is deemed to be taken for public use. For purposes of this chapter the fair market value of wetlands is their highest and best use value.

(b) The following definitions apply throughout this chapter:

(i) "Compensation" means cash or in-kind payment, if the affected property owner agrees to in-kind payment and then agrees to the in-kind payment actually offered, including but not limited to clustering; transfer of development rights; staging of concurrency; land trades; environmental mitigation credits for prior activity of owners; density bonuses; or adjustments to restrictions on lot size, number of units, or building dimensions.

(ii) "Parcel" means one or more contiguous tax lots of an owner.

(iii) "Owner" includes one or more natural or legal persons who own the parcel, whether as sole owner, marital community, cotenants, or tenants in partnership or as a corporation.

(iv) "Scheme regulating the use of land" means one regulation or government action affecting the use of land; or more than one such regulation or action, though occurring at different times or by different governmental entities, with the same or similar policy objectives, such as development moratoria, zoning, health regulations, safety regulations, aesthetic regulations, fish and wildlife regulations, sensitive‑area regulations, and environmental regulations, whether such regulation or action is interim or permanent. A scheme regulating the use of land does not include any regulation or government action of the federal government or regulation or government action of the state or any local governmental entity taken to comply with the minimum requirements of federal law or regulation.

(v) "Wetlands" or "wetland area" means the same as defined in RCW 90.58.030.

(2)(a) When a parcel of real property has been taken for public use as provided in this chapter, the governmental unit or units that implement the scheme regulating the use of land shall be liable to the owner for compensation under this chapter, and the owner shall have an action at law to recover such compensation. When more than one governmental unit is involved, the court shall determine the proportion each unit is required to contribute to the compensation.

(b) The compensation shall be for the full amount of the decrease in fair market value. In addition, an owner who prevails either through settlement or verdict in an action for the recovery of such compensation shall be entitled to reasonable costs, expenses of litigation, and sums for attorneys' fees.

(3) Governmental units subject to this chapter shall not make waiver of the provisions of this chapter a condition for approval of the use of real property or the issuance of any permit or other entitlement. Plaintiffs may accept an approval of use, permit, or other entitlement granted by the governmental unit without compromising their rights under this chapter if:

(a) A written reservation of their rights is made at the time of acceptance of the authorization, permit, or other entitlement; or

(b) An oral statement reserving their rights is made before the governmental unit granting the authorization, permit, or other entitlement at a public meeting at which the governmental unit renders its decision.

NEW SECTION. Sec. 2. Compensation is required by this chapter unless the scheme regulating the use of land is an exercise of the police power solely to prevent or abate a public nuisance as defined at common law or an application of the public trust doctrine as it relates directly to navigable water only.

NEW SECTION. Sec. 3. (1) The statute of limitations for actions brought under this chapter is the statute of limitations for actions for recovery of real property. The statute of limitations begins to run upon the enactment of the scheme regulating the use of land; or the final administrative decision implementing the scheme regulating the use of land affecting plaintiffs' property or by a showing by the plaintiff that application for administrative decision is futile.

(2) A scheme regulating the use of land is implemented with respect to an owner's or user's property when actually applied to that property unless the enactment of the scheme by itself operates to reduce the fair market value of real property for the uses permitted at the time the owner acquired title, without further governmental action and the scheme contains no provision allowing for just relief from the scheme's operation.

(3) This chapter applies to schemes regulating the use of land, all or some part of which is implemented after the effective date of this act. No part of a scheme shall be considered for purposes of this chapter if the part was implemented more that ten years before the effective date of this act.

NEW SECTION. Sec. 4. If a natural event or condition threatens to deprive an owner of land of the land's use or to cause serious damage to the land, and immediate corrective action is required to prevent this deprivation or damage, but this action will violate a state or local law or regulation unless official waiver or permission is obtained, the owner may either:

(1) Apply to the governmental unit charged with enforcing such regulation to take, or to permit the owner to take, the required corrective action. If the governmental unit wrongfully denies waiver or permission or fails to take reasonably timely action upon the application, so that such deprivation or damage occurs, the governmental unit shall be liable to the owner for the diminution in value of the land which occurs unless the natural event or condition was the fault of the owner; or

(2) Without notifying the governmental unit under subsection (1) of this section, take such corrective action as is reasonably necessary to prevent the threatened deprivation or damage. However, the owner shall notify the governmental unit that he or she has undertaken the corrective action within five days after commencing such action and shall give a general description of the action undertaken. Thereafter, in a legal action brought by the governmental unit, the owner shall be liable for violation of the regulation if a court determines that there was a violation and that an owner would not have qualified for any available waiver or exemption.

NEW SECTION. Sec. 5. (1) If a governmental unit is found by a court to have committed a regulatory taking under section 1 of this act, such unit shall be liable for compensation, measured by the owner's diminution in fair market value caused by such taking from the time the scheme that regulated the use of the owner's land became effective until the unit may grant an exemption or choose to repeal such scheme. However, if the governmental unit does not grant an exemption or choose to repeal the regulatory scheme within a reasonable period of time, to be fixed by the court, then the unit shall be liable for compensation for a permanent taking, measured by the diminution of fair market sale value caused by the taking, valued as of the date of trial. This section shall not affect any further remedy that is constitutionally required.

(2) Any permit, authorization, or other entitlement granted under a scheme repealed under subsection (1) of this section shall continue to be valid.

NEW SECTION. Sec. 6. This chapter does not preclude any action at law or equity that an owner would have had if this chapter had not been enacted.

NEW SECTION. Sec. 7. If the state or any of its political subdivisions imposes, changes, or implements any scheme regulating the use of land in such a way as to reduce the previous fair market value of a taxpayer's property, the county assessor shall, on or before the ensuing April 1, adjust the property's assessed value downward by an amount equal to the difference between the fair market value of the property under the new scheme, and the previous fair market value.

NEW SECTION. Sec. 8. Whenever any compensation is paid to a property owner by the state or by any local governmental entity pursuant to a judgment or agreement to compensate for a regulatory taking under this chapter, the payor shall cause to be recorded with the county auditor for the county in which the real property is located a notice of compensation for regulatory taking. This notice shall contain a legal description of the affected parcel of real estate, a statement of the reason for compensation, the name of the payor, the name of the owner, and the amount paid.

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

NEW SECTION. Sec. 10. A new section is added to chapter 35.21 RCW to read as follows:

Any city or town subject to the provisions of this title is also subject to sections 1 through 9 of this act.

NEW SECTION. Sec. 11. A new section is added to chapter 35A.21 RCW to read as follows:

Any code city subject to the provisions of this title is also subject to sections 1 through 9 of this act.

NEW SECTION. Sec. 12. A new section is added to chapter 36.01 RCW to read as follows:

Any county subject to the provisions of this title is also subject to sections 1 through 9 of this act.

NEW SECTION. Sec. 13. Sections 1 through 9 of this act shall constitute a new chapter in Title 8 RCW.

NEW SECTION. Sec. 14. 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. 15. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.