I am forwarding this analysis of the takings bill to the vision 2020 list.
The bill number has been changed, but it includes the same bad language.
Idaho Smart Growth staffer, Jon Barrett, will follow up with more updates.
Tom
>===== A message from the 'smartgro' discussion list =====
>
>Thanks for your responses to the question about "highest and best use".
> I'd like to weigh in and suggest that the land use controls we publicly
>create and adopt serve, in part, to maintain (read: "protect") and
>sometimes increase property values. Without them, we'd have, as one of you
>suggested, "subsidized anarchy".
>
>Within the body of this message I'd like to summarize the major elements of
>HB 538 (Rep. Kempton's takings bill). I have been involved in several
>conversations about this bill over the last several weeks. Most of the
>conversations have been focused on the implications of this bill if it
>becomes law. I've heard few if any people talk about what it actually
>says. So here goes.....
>
>Rep. Kempton's bill is very similar to a bill that was submitted during
>last year's legislative session (HB 220). It came directly from Florida,
>where it was signed into law in 1995. Florida has some stories to tell
>that I'll share with you in a future message. It is 17 pages long and is
>titled "Protection of Real Property Rights". It has been suggested by its
>supporters that due to its length and complexity, Idahoans will probably
>not be interested in this bill. (Alex LeBeau of the Idaho Association of
>Realtors speaking at the Idaho Environmental Forum, Brando's Ballroom,
>January 21, 1998). It is no secret that the Idaho Association of Realtors
>has been a major force behind the bill.
>
>The essential elements of the bill are summarized below.
>Please disagree with me if you have a different or more complete
>interpretation.
>
>Important Note! Throughout this summary, the word "public" is used to
>mean any governmental entity that issues a regulatory decision or places
>conditions on the approval of a development proposal.
>
>
>* The intent of the bill is to provide relief and possibly monetary
>compensation to property owners who feel the value of their property has
>been reduced by a regulatory action or decision. To benefit from this
>relief or compensation, it is not necessary for the property owner to
>demonstrate that a "taking" under the State or U.S. Constitutions has
>occurred.
>
>* Federal regulatory acts and laws, transportation planning/eminent domain,
>comprehensive plans, and Idaho water law would be exempted. The provisions
>of the bill principally apply to state agencies, municipalities, and other
>entities such as highway districts. Regulatory decisions being challenged
>by a property owner must relate to a specific property.
>
>* A property owner who feels a regulatory decision has unfairly reduced the
>market value of his/her property first hires an appraiser to document this
>reduction. The owner files a request for relief with the public entity
>issuing the regulatory decision. The request explains what the owner would
>like to do with the property, a summary of the regulatory decision denying
>or unfairly conditioning the proposed use, and an explanation of how, in
>the owner's eye's, the public has failed to demonstrate essential nexus
>between the public purpose of the decision and the nature of the decision
>itself, and a copy of the appraisal showing a reduction in market value
>that has resulted from the decision. Owners of adjacent property owners
>are notified when a request for relief is submitted. Adjacent property
>owners can then express support or opposition to the request for relief as
>the property owner exercises the provisions of the bill.
>
>Important Note! "Essential nexus" (also referred to as
>"proportionality")
>is a legal principle that has increasingly come into play in U.S. Supreme
>Court takings decisions. Statutory definitions of "essential nexus"
>(including the one found in this bill) are usually not helpful in
>understanding what it means. It simply means that the conditions
>government places on development approvals must have something to do with
>remedying the specific impact(s) the proposed development would have. The
>public can't require a developer who wants to build a taller building to
>put in a bike lane because the addition of a bike lane is not directly
>related to the impact of the taller building.
>
>* The public and property owner must attempt to pursue mediation remedies
>for up to four months. Mediation would focus on identifying the degree of
>regulation that would be acceptable to the property owner and/or the degree
>of development that would be acceptable to the public.
>
>* If the public and property owner cannot arrive at an acceptable
>resolution after four months of mediation, the owner issues a letter of
>intent to proceed with a "special master" hearing. The public and the
>owner shall than agree on who shall serve as special master. The 'Special
>Master' must be a resident of the state and possess qualifications
>satisfactory to both parties in the area of mediation, land use permitting,
>land planning, land economics, local and state government organizations and
>powers. The special master is not an elected official. The special master
>does not have to be an attorney. The public and owner share the cost of
>the special master's time and expenses.
>
>* The bill requires the public to direct all available resources and
>authorities to effect fully the obvious purposes and intent of this section
>in resolving disputes.
>
>* Prior to the special master hearing, the public provides the special
>master with a written description of its position (i.e. The public purpose
>of the regulatory decision, etc). The public then pays for the cost of
>required legal notices to announce the date and time of the special master
>hearing.
>
>* Anyone can participate at the special master hearing at the discretion of
>the special master. Special master hearings are "informal and open". The
>purpose of the hearing is to "focus attention on the impact of the
>government action giving rise to the request for relief..". The special
>master presides over an effort to see if the owner is willing to revise his
>or her proposed development and/or if the public entity is willing to relax
>its enforcement of the suspect regulation - basically the same conversation
>that took place during the aforementioned four month mediation process. In
>determining whether the regulation unfairly burdens use of the property,
>the special master is to consider: the history and characteristics of the
>property, the degree to which the property has been developed to date, the
>history of environmental protection and land use controls placed upon the
>property, the appraisal estimate of the "highest and best use" immediately
>before and after the regulatory decision, the public purpose sought by the
>restriction being imposed, and restrictions placed upon similar property.
>Highest and best use means "the premise upon which the value estimate of
>real property is based. A precise description and standard for highest and
>best use shall be determined by the licensed real estate appraiser as the
>appraisal is conducted under this act."
>
>* Following the hearing, the special master issues recommendations which
>communicates the degree to which he or she feels the regulatory action
>inordinately or unfairly burdens the property owner*. If the special
>master feels that the development order is an unfair burden upon the use or
>value of the property, he or she may recommend alternatives that would
>allow reduced restraints on the use of the property including but not
>limited to allowing increased density on the property, more intense land
>uses, relaxation of minimum development standards, withdrawal of the
>regulatory decision, approval of the proposed use with a variance, and
>monetary payments.
>
>*Rep. Kempton's bill defines "Inordinate burden" as an action of government
>taken for benefit of the public that has restricted or limited the use of
>real property such that the property owner is permanently unable to attain
>or obtain fair market value for the property and further bears a
>disproportionate share of a financial burden which, in fairness, should be
>borne by the public at large.
>
>* After receiving the recommendation of the special master, the public can
> (1) accept and comply with the recommendation of the special master, (2)
>modify the recommendation, subject to owner acceptance, (3) reject the
>recommendation
>
>* If the owner does not agree to a modification proposed by the public, or
>if the public rejects the special master recommendation outright, the owner
>may pursue relief from the judiciary.
>
>* Regulatory decisions that do not rise to the level of a taking of private
>of property under the state or U.S. Constitutions are subject to the
>"judicial consideration" provisions of this bill.
>
>* An owner may pursue judicial remedies if he or she can demonstrate
>through an appraisal that the regulatory action has reduced the fair market
>value of the property by 20% or $20,000, whichever is less. A 180 day
>notice period must expire before judicial proceedings can actually begin.
> The purpose of this "cooling off" period is to give the owner and the
>public an opportunity to settle out of court or reconsider the
>recommendation of the special master. The public must present the owner
>with a settlement offer during this period.
>
>* If the owner rejects the settlement offer, public must submit a "ripeness
>decision" which establishes the public purpose of the regulation, describes
>essential nexus, and summarizes alternatives that have been offered to the
>owner to date. The ripeness decision is the last prerequisite before
>judicial consideration can take place. If the owner rejects the ripeness
>decision or the public fails to comply with a previously reached settlement
>agreement, the owner can file for compensation in the district court where
>the property is located.
>
>* Using all information available, the court decides if the evidence
>suggests that the public has inordinately burdened the property owner. If
>the judge decides in the affirmative, a jury is selected for the purpose of
>establishing the amount of compensation. In considering the amount of
>compensation, the jury considers the reduction in fair market value
>resulting from the regulatory decision (as documented by the owner's
>appraiser).
>
>* If the property owner prevails, he or she is entitled to recover (from
>the public) all court and legal costs associated with judicial proceedings
>- in addition to the actual compensation for the loss in value. The
>reverse is true of the public prevails (although the public is not
>compensated when a regulatory decision increases the value of a specific
>property).
>
>* If the owner does not prevail, he or she can reconsider settlement offers
>previously made by the public.
>
>This concludes a summary of the major provisions of HB 537, "Protection of
>Real Property Rights". Any comments, corrections, or additions? I will
>post some thoughts on the implications of this bill (as I perceive them)
>and communicate what others are saying about it in a message tomorrow
>(Thursday). I'll also provide some information on a second Takings bill
>that is being sponsored by Rep. John Stevenson, Republican from Rupert.
>
>Important Note!
>
>Don't forget - the Idaho Conservation League is sponsoring a press
>conference tomorrow on HB 537 at 10:00 AM on the capitol steps. It is an
>excellent opportunity to learn more about this important issue.
>
>Final Important Note!
>
>The State Affairs Committee will be conducting hearings on HB 537
>(Kempton's bill) and HB 606 (Rep. Stevenson's bill) on Monday, February 9
>in Room 412 of the Statehouse.
>
>For those of you not able attend these hearings in person, I'll be
>forwarding a sample letter that you can read, edit, and fax directly to the
>chair and/or other members of the State Affairs Committee. Please continue
>to watch your in-boxes. Let's show the legislature that Idaho Smart Growth
>is reasonable, credible, and substantive.
>
>Thanks for your interest,
>
>Jon Barrett
>Project Coordinator
>Idaho Smart Growth
>
>
>
>>From slist Wed Feb 4 20:20:27 1998
>
Thomas C. Lamar, Executive Director
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