BP BHEAD INT S [atlas:bill]

AN ACT Relating to regulation of private property; adding a new section to chapter 84.56 RCW; adding a new chapter to Title 64 RCW; and declaring an emergency.

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

NEW SECTION. Sec. 1. FINDINGS AND DECLARATION. The legislature finds and declares:

(1) A person's right to own, possess, use, and dispose of private property is fundamental to a free society and an integral part of the American tradition of liberty and limited government;

(2) Private property may be owned, used, or divided in a myriad of ways that maximizes its value to both the owner and society. For example, an owner may sell a conservation or view easement to protect natural resources while retaining the right to use the property in certain other ways, or an owner may divide property, burdening the sold portion with restrictive covenants on certain uses to the benefit of the retained parcel. Such property interests as easements, covenants, leaseholds, and estates for years as well as profits and rents are fixed and readily recognized at common law and in Washington's statutes are fixed and readily recognized;

(3) Government regulation from time to time has the effect of transferring some or all of an owner's private property interests into the public domain without any compensation for the loss. For example, regulations designed to preserve aesthetic values or create wildlife habitat generally result in the transfer of a private property interest akin to an easement or restrictive covenant to the public without compensation to the landowner who is unfairly burdened by the restriction. The result is that the value of the landowner's remaining parcel is diminished by the loss of use or the imposition of such restrictions and the public gains an interest in the land without paying compensation. These types of regulations are de facto taxes that fall disproportionally on individual landowners. In such cases, private property owners are entitled to compensation;

(4) Not all government regulation, however, takes private property when it imposes use restrictions. For example, one of the principal purposes of limited government is to protect private property. From time to time, government may act to prevent one or more private property owners from engaging in particular uses that cause injury to the property of others or to protect the public's health or safety. This type of anti-nuisance government action most often takes the form of traditional zoning ordinances, such as height limitations or set-back requirements, or land use regulation and would not require government to compensate landowners for the resulting loss in value or use of property. Thus, traditional zoning ordinances that are common to the area around the affected property and burden all real property within the same zone to the same degree generally did not give rise to a compensable taking;

(5) Indeed, government has the power and the obligation to prevent, mitigate, or abate activities that constitute a nuisance under the laws of the state; and

(6) This act is necessary to ensure that landowners who are burdened unfairly by government regulation or other actions that go farther than necessary to prevent, mitigate, or abate a nuisance under the laws of the state or to protect the public's health or safety receive just compensation for the interest in property taken.

NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Compensation" means the payment of a property tax credit or other in-kind payment of equal value for the fair market value of the private property taken. A property tax credit is evidenced by a property tax credit voucher issued by a taxing agency or district.

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

(3) "Private property" means all real property or an interest in real property recognized under Washington law, including but not limited to: Estates in fee; life estates; estates for years or otherwise; inchoate interests in real property such as remainders and future interests; personalty that is affixed to or appurtenant to real property; easements; covenants; leaseholds; the right to use water or the right to receive water; or rents, issues, and profits of land, including minerals, timber, and crops.

(4) "Taking" means a government action whereby a de facto loss to the owner of some or all of an owner's interest in private property occurs, regardless of whether there is a transferee of the property interest or whoever the transferee may be. However, a de facto loss that results from a government action taken to abate, mitigate, or prevent a nuisance under the laws of the state may not be considered a taking.

(5) "Nuisance" means use of real property that a reasonable person in the community would consider unreasonable in light of the historically permitted uses of the subject real property and of similar real property within the same general area as the subject real property. "Nuisance" also means all actions that constitute a nuisance under common law.

NEW SECTION. Sec. 3. COMPENSATION. (1) Subject to any exceptions in section 4 of this act, a private property owner must receive compensation from government for a regulatory taking of private property.

(2) In lieu of a property tax credit, a government entity may enter into a freely negotiated written agreement with a private property owner to provide all or part of the compensation required under this chapter in another form of equal value, and such property tax vouchers, variances, or other devices as may be mutually agreed in writing between the government and the private property owner.

NEW SECTION. Sec. 4. EXCEPTIONS TO COMPENSATION. The compensation requirement in section 3 of this act does not apply to the extent the taking:

(1) Is imposed to prevent, mitigate, or abate a nuisance as defined by the laws of this state;

(2) Is part of a zoning regulation common to the area surrounding the property;

(3) Creates limitations that burden every parcel of property with the same zoning designation equally; or

(4) Has the effect of compensating all property owners subject to the restrictions due to the reciprocal nature of the restrictions.

NEW SECTION. Sec. 5. PROCEDURES. (1) A private property owner seeking to enforce this chapter must request, in writing, compensation from the government entity causing the taking, specifying the nature of the government action giving rise to the taking and the amount of compensation sought. A private property owner is not required to pursue or exhaust other administrative remedies before pursuing the remedies provided by this chapter.

(2) If the government entity intends to reject a private property owner's request for compensation, the government entity must notify the property owner within forty-five days of receipt of the request. This time limit is subject to subsection (3) of this section.

(3) When a local government concludes that all or part of the alleged taking is required by state regulation, the local government must submit a request to the responsible state agency.

The state agency must respond within thirty days of the local government request. In response, the state must clarify what portion of the restriction as applied is required by state regulation and law.

(4) If the private property owner's request is rejected in whole or in part, this chapter may be enforced by the private property owner against the government entity in superior court.

(5) Trial must be de novo and the private property owner is entitled to a jury trial on all issues, including whether there is a taking and the amount and in-kind form of compensation required under this chapter. The private property owner has the burden of proving by a preponderance of the evidence that there has been a taking. The government entity has the burden of proving by clear and convincing evidence that the alleged taking falls within an exception to payment of compensation under this chapter. The government entity has the burden of proving by the preponderance of the evidence the fair market value due as compensation and the propriety of the in-kind form.

(6) A prevailing plaintiff or petitioner is entitled to recover the costs incurred in enforcing this chapter, including reasonable attorneys' fees. A private property owner prevails under this chapter if he or she receives more compensation than offered as settlement by the government entity prior to commencement of the action.

(7) If the private property owner's request is granted in whole or in part, the government entity may rescind any regulation or restriction and terminate any taking, if possible, and pay interim compensation for the temporary taking, or enforce any such rule, action, regulation, or restriction in whole or in part and pay full compensation to the private property owner.

(8) If compensation is paid, the private property owner shall deliver to the government entity paying compensation title to whatever interest accurately represents the private property that has been taken. The government entity shall refund any property taxes that are based on the property interest taken which become due and the owner pays after the date the restriction giving rise to the taking is imposed.

(9) This chapter may not be construed to limit the rights of a person to pursue a claim or cause of action under the state or federal Constitution or other law nor may this chapter be deemed a condition precedent to bringing such a claim or cause of action.

(10) In defending against a claim for compensation filed in the superior court, a government entity that intends to rely on section 4(1) 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.

NEW SECTION. Sec. 6. STATUTE OF LIMITATIONS. A claim for compensation under this chapter must be brought within the time period specified in RCW 4.16.080.

NEW SECTION. Sec. 7. INTEREST. Compensation awarded under this chapter bears interest at the maximum rate permitted under RCW 19.52.020 from either the date of entry of a judgment to the date of payment of the judgment or at the time of the taking, whichever is earliest. However, the interest must be compounded and accrue and be added monthly to the principal sum of the compensation awarded and unpaid amounts of the compensation and interest together form the new principal sum for calculation of interest for each following month until the sum is paid in full.

NEW SECTION. Sec. 8. EMINENT DOMAIN. This chapter does not apply to actions by government entities in their exercise of the power of eminent domain.

NEW SECTION. Sec. 9. SAVINGS PROVISION. 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. 10. CAPTIONS NOT LAW. Captions used in this chapter are not any part of the law.

NEW SECTION. Sec. 11. A new section is added to chapter 84.56 RCW to read as follows:

(1) An owner of real property for which a voucher is issued under section 1 of this act is entitled to a credit against property taxes levied on the property for each of the ten years following issuance of the voucher. The credit for each year is equal to ten percent of the amount shown on a voucher.

(2) To receive credits under this section, the owner shall submit the credit voucher to the treasurer of the county in which the property is located. The treasurer shall treat a credit voucher in the same manner as a monetary payment of property taxes. Each year, the credit for that year must be deducted from regular property taxes remitted to the unit of government shown on the voucher as responsible. If the voucher shows a percentage attributable to the minimum requirements of the state law, that portion of the credit is deducted from taxes remitted to the state and the remainder of the credit deducted from taxes remitted to the unit of government shown as responsible. If the unit of government shown as responsible does not levy regular property taxes, the entire credit is deducted from taxes remitted to the state. Credits in excess of the corresponding taxes may be carried forward to subsequent years until used.

NEW SECTION. Sec. 12. CODIFICATION. Sections 1 through 10 of this act constitute a new chapter in Title 64 RCW.

NEW SECTION. Sec. 13. 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 takes effect immediately.