HomeMy WebLinkAboutMINUTES - 05161995 - 1.31 TO: BOARD OF SUPERVISORS Contra
f: ^7
FROM: Phil Batchelor, County Administrator it Costa
DATE: May 11, 1995 �
T�,�° County
LEGISLATION: SB 635 (Haynes) - REQUIRES COMPENSATION BY A
SUBJECT: JURISDICTION WHENEVER ANY REGULATORY PROGRAM DENIES A PERMITTED USE
WITHOUT ADEQUATE COMPENSATION, INCREASES COURT REVIEW OF REGULATORY
ACTIONS AND LIMITS THE AUTHORITY TO REGULATE LAND USE
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ADOPT a position in OPPOSITION to SB 635 by Senator Raymond N.
Haynes which would require compensation by a jurisdiction whenever
any regulatory program denies a permitted use without adequate
compensation, increases review of regulatory actions and limits the
authority to regulate land use.
BACKGROUND:
Existing law generally authorizes governmental entities to regulate
the use of buildings, structures, and land among open space,
including agriculture, recreation, enjoyment of scenic beauty, use
of natural resources, and other purposes . Existing law contains
numerous provisions regulating the use of land.
Senator Haynes has introduced SB 635, titled the Property and
Homeowner Protection Act. As introduced, SB 635 would do all of
the following:
❑ Require that. any administrative appeal to a state or local
agency be heard with 60 days from the date the appeal is filed
with the agency.
❑ Expand the definition of a "development project" to include a
project involving the providing of entitlements, including
entitlements that would require legislative approvals for a
specific plan of development.
CONTINUED ON ATTACHMENT: YES SIGNATURE: •
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON may 16, 1995 APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
Y 16 1995
ATTESTED
Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: See Page 3 SUPERVISORS AND COUNTY ADMINISTRATOR
BY -- DEPUTY
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❑ Adopt legislative findings along the following lines :
✓ Property owners throughout the State of California are
increasingly being denied the fundamental right to use
their property.
✓ Environmental regulations have profoundly affected the
fundamental rights of property owners .
✓ Certain environmental regulations are, however, necessary
or desirable for the benefit of all citizens .
✓ The protection of the use of an individual ' s property is
essential to economic growth and political freedom in the
State of California.
❑ Express the legislative intent to ensure a prompt and fair
disposition of all applications for land use entitlements.
❑ Enact a legislative finding and declaration that the right of
a homeowner or land owner to the use of his or her property is
a fundamental right protected by the Fifth Amendment of the
United States Constitution and includes the following rights :
✓ To buy or sell any interest in land through private
consensual arrangements .
✓ To the rents and profits from the property.
✓ To obtain a reasonable return on his or her investment in
the property.
✓ To develop the property in accordance with an approved
land use plan within five years after the approval in
accordance with the conditions of development.
✓ To change the use of the property, or to continue a
preexisting use after that use has been involuntarily
terminated, without unreasonable interference from a
public agency.
✓ To be free of restrictions on the use or development of
the property which are intended to confer public benefit
by restricting the landowner' s use without adequate
compensation, or which prevent a nuisance to neighboring
landowners .
✓ To be free from excessive regulatory actions, fees or
assessments .
✓ To compensation from any public agency which unreasonably
interferes with any of the above described rights,
whether by physical occupation or regulatory
infringement.
❑ Enact the following two additional findings and declarations :
✓ Responsible fiscal management and fundamental principles
of good government require that government decisionmakers
evaluate carefully the effect of their administrative,
regulatory, and legislative actions on constitutionally
protected property rights .
✓ State and local departments and agencies should review
their actions carefully to prevent unnecessary takings
and should account, in decisionmaking, for those takings
that are necessitated by statutory mandate.
❑ Direct the Attorney General to promulgate, by June 1, 1996, a
publication entitled "Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings" .
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❑ Direct that this publication be disseminated to all units of
each state and local department and agency no later than July
1, 1996 .
❑ Require state and local departments and agencies to adhere, to
the extent permitted by law, to the following criteria when
implementing policies that have takings implications :
✓ When requiring a private party to obtain a permit in
order to undertake a specific use of private property,
any conditions imposed on the granting of the permit
shall serve the same purpose that would have been served
by a prohibition of the use or action and substantially
advance that purpose.
✓ A restriction on the use of private property shall not be
disproportionate to the extent to which the use
contributes to the overall problem the restriction is
imposed to redress .
✓ Any permitting process shall be kept to the minimum time
necessary to accomplish the purpose of the action.
Of Any action justified on the basis of the public health
and safety would have to be fully documented on the
record, covering several specified points .
❑ Require the head of each state or local department and agency
to designate an official to be responsible for ensuring
compliance with this section with respect to the actions of
that department or agency.
❑ Require all takings implications of proposed actions to
address the merits of these actions in light of the identified
takings implications in all submissions to the decisionmaking
body.
❑ Provide that notwithstanding any other provision of law a
public agency may regulate land use only to the extent that it
is necessary to do either of the following:
✓ Plan and provide for public services .
Of Prevent nuisances or uses obnoxious to existing
landowners .
❑ Prohibit depriving a landowner of the use of his or her
property to accomplish environmental goals without
compensation to that landowner for the value lost as a result
of the regulation.
❑ Authorize actions in court to seek compensation for any
alleged taking.
❑ Provide for the procedures to be followed by a court in
addressing claims for adequate compensation.
The Director of the Growth Management and Economic Development
recommends that the Board of Supervisors oppose SB 635 and this
office concurs with that recommendation.
SB 635 is on referral to the Senate Judiciary Committee.
cc: County Administrator
Director, GMEDA
Community Development Director
Public Works Director
Director of Building Inspection
County Counsel
Les Spahnn; Heim, Noack, Kelly & Spahnn
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tll iS - .SENATE BILL No.. 635
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' Introduced by Senator Haynes
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February 22, 1995
An act to!amend Sections 65922 and 65928;of,jto add Section
14682 to, and to;add Chapter 9 5 .(;commenc�ng;with Section
66040)_' to Division 1 Of.,Title T, ,..the, ..G--' merit Code,
relating to land use.
LEGISLA'T'IVE COUNSEL'S DIGEST
SB 635, as introduced, Haynes. Property and Homeowner,
S. Protection Act.
(1)'. Existing law: authorizes governmental entities to
regulate the use of buildings, structures, and land among open
I including agriculture, recreation, enjoyment of scenic
J beauty, use of natural resources, and other purposes. -Existing
law contains numerous provisions regulating. the"use of land.
Existing law generally authorizes the legislative,body of a city
or.county to regulate the use of buildings,structures,and land.
This, bill would . enact the Property and Homeowner
Protection Act, which would include findings and
declarations .of the Legislature relating to the rights of
property owners, and generally require. -that. . whenever
implementation of a regulatory program by the state or a
political subdivision thereof denies a permitted use, without
adequate compensation therefor, by a landowner of his or her
land, the property shall be deemed,to:have been taken- for
public use and the landowner . shall be entitled to
compensation; as specified. The bill would authorize a court
to review regulatory actions that affect private property, as
specified. The bill would require a court to order. the
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SB 635 -- 2 --
compensation of a landowner under specified circumstances, j
would further authorize a landowner to have the amount of
this.compensation determined by a jury, and would require
county assessors to reassess the value of property whose value
has been negatively affected by regulatory actions as
.specified.
This bill would generally limit the authority of a public ,
agency to regulate land use, and would generally require y
public agencies to review all proposed regulatory actions as to
their, impact on the rights. of affected property owners. The
bill would require the Attorney General to promulgate ..a
publication; as specified, to which.each'state agency would be f
required to refer in evaluating actions involving private
proper r ' hts' The' bill1would set °forth s ecified rmciples
prop Y g I? P
and criteriauntl which state and local;governmental ageric�es
uld be re wired to com '1 m roposmg� or taking actions
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affecting private property rights.
(2) Existing law contains variousprovisions relating to the
purchase, sale, exchange, and ease of state property by. the
Department of. General Services and other authorized "state
agencies.. .;
This bill would require that any purchase of privately
owned land by the state.be offset by-the sale of state-owned
land of equal value as the privately:owned land being acquired
by the state.
Because the bill would require local government entities to
compensate landowners tinder these circumstances; would
further require the adoption of new, procedures of those
entities., and would make numerous changes in existing
procedures, ordinances; and regulations relating to land use,
the bill would impose a state-mandated local. program'
.(3) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated , by the state. Statutory provisions establish
procedures for making that reimbursement, including the
creation of a State Mandates Claims Fund to pay the costs of
mandates which do not exceed $1,000,000 statewide and other
procedures for claims whose statewide costs exceed
$1,000,000.
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rices, ' .. s` This bill would provide that, if,the Commission on State
nt of Mandates-determines that this bill contains costs mandated by
luire the state, reimbursement for those costs shall be made
slue pursuant to those statutory procedures and, if the statewide
is as cost does not exceed $1,000,000, shall be made from the State
Mandates Claims Fund.
ublic . Vote: majority. Appropriation: no. Fiscal committee: yes.
iuire State-mandated local program: yes.
as to
The The people of the. State of California. do enact as follows:
Lte a
'd.be a 1 SECTION 1. Section 146.82` is added to the
Yate . '2 r Government Code, to,read:
les 3 14682. Any purchase of:pr v`dtely owned=land by the
PL z 4 state shall be offset by theaale olof equal
ides �x
tors :4° 5. value as the privately owned land being acquired'by the
6 state:
the 7 SEC . 2. Section 65922 -of the, Government Code is
the 8 amended to read:
Mate ^x 9 65922. The ke of 949 This chapter shall not
-10, apply to the following:
Ltely _ 11 (a)- Activities of the State Energy Resources
,ned 12 Development and Conservation Commission established
fired 13 pursuant, /to Division 15 (commencing with Section
.14 25000) of the Public Resources Code.
_-s to 15 (b) (1) Administrative appeals within a state or local
Auld 16 agency or_to a state or local agency, except as provided by
Liose 17. paragraph (2).
ting 18 (2)- :For any. administrative° appeal within a state or
use, 19. local agency, or to :a state'or local.agency, relating to a
20. - development,project, the. appeal shall be heard by the
to 21- state or local agency within 60 days of the.date on-.which
!osts r 22 the:appeal is filed.by,the agency.
)lish . 23 SEC.; 3. Section 65928 of the Government Code is
the 24 amended to read:
s of 25 65928. "Development project" means any ,project
cher 26 undertaken for the purpose of development.
,eed 27 "Development project" includes a project involving the
28 providing of entitlements, including entitlements that
vt' 29, would require legislative approvals, for a specific plan of
99 99
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SB 635 — 4 —
1 development, or the issuance of a permit for construction
(!
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action 1 (4) The. protection of the use of an individual's
>erate. 2 property is essential to economic growth and. political
sterial 3 , freedom in the State of California. The improper or
public 4 unreasonable delay or restriction of the use of private
5 property' restricts the availability of housing affordable
ection 6 for all.Californians, rich and poor alike, and threatens the
invent 7 economic and political freedom of. the landowner by
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.8 threatening his or her capital . accumulation or
;4. 9 threatening his or her retirement funds.
ON Ile
10 (b) It is, ..therefore, the intent of .the Legislature to
11 ensure a prompt and fair disposition:of all applications for
kx 12
.0 land;use .entitlements.
. .
cited, 13 ;66042 The Legislature finds and declares that .the
a 14 right of a homeowner or landowner to.the;;use ofhis_or her
L L t
15 property is a -fundarriental right protected bw the Fifth
all--of 16 Amendment of : the United States Constitution and
17 includes:
e of m 18 (a) , The ri h, t to buy or sell any' interest in land through
cental,
h 19 private consensual arrangements.
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state, 20 .(b) The right to the rents and profits from the
21 property in amounts that can be obtained through
Pperty }F; g
22 private consensual arrangements during the entire time
whole;
23 . the property is owned by,the landowner.
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on of 24' (c) The right to obtain a reasonable return on his or
unfair 25 her investment in.the property, solong as that investment
until 26 is based on reasonable expectations of a return based on
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27 capitalization rates and market forces.
The 28 (d) The vested right to develop the property in
arty is x .29 accordance with an approved- land.use plan within five
merit;.. 30 years. after the approval in accordance. with the
Fifth 31;: conditions of development.
Mates Af_. 32 (e) The right to change the use of the property, or to
Teves 33 continue a .preexisting use after .that use has been
tzens . A
34 involuntarily terminated, without unreasonable
'' 35 ` interference from a public agency.
-owed 36 (f) The right to be free of restrictions on the use or
nting 37 development of the property which are intended to
:ate is
icular 38 confer public benefit by restricting the landowner's use
39 without adequate compensation; or which prevent a
,nefit 40 nuisance to neighboring landowners.
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SB 635 — 6 -
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1 (g) The right to be free from regulatory actions, fees,
2 or assessments that impose a burden in excess of the cost
i
3 to the public of the approved land use for the property or
i 4 unit which are 'designed to, intended to, or actually
5 compel, the landowner to provide public benefits, rather
6 than to control private harms, without adequate
7 compensation.` ,>
8 (h)- The right to compensation from any public agency
9 which unreasonably interferes with ;any of the above
:
10 ' described rights, whether by physical occupation -or
11 " regulatory infringement.
12 " 6.6043. .(a) The Legislature finds"and'd:eclares both of,
X13' :ahe following: t
14 ('1) Responsible fiscal management and fundamental
15 principles ofgood government require:that;government
16 --dare: dec'isiorimakers evaluate full the EIffect `of their
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17 administrative; regulatory; and legislative:".actions on
18 i.constitutional' rotecfed ' ro ert ri' hts: :
Yp p P Y g
19 (2) State. and 'local,departments and agencies'should
{j 20 , review their actions 'carefully 'to .prevent unnecessary0)
21 takings and 'should account, in decisionmakin
� g gfor those
j 22 takings that are-necessitated by statutory mandate...
23 b) (.1)1. To assist. state. and local departments and
24 'agencies in undertaking the reviews described in 0�
i 25 subdivision (a) and. , in proposing, planning, and
-26 implementing actions with due regard for the .
27 constitutional protections provided by the United States
28 and California Constitutions and to ,'reduce the risk of
-- 29 undue or inadvertent "burdens. on the public treasury
30resulting'from lawful-governmental action, the Attorney
31 General shall,consistent with the principles stated herein
�j 32 and in consultation with the state departments and
-33 agencies; promulgate =a publication to' be 'entitled }
34 "Guidelines for the Evaluation, of Risk an Avoidance
-.of
35 UnanticipatedTakings," to which each state department
36 . or agency shall refer in making the evaluation required
37 by this.section, or otherwise taking any action that is the
38 subject of this section.
39 (2) The guidelines shall be promulgated no later than
40 June 1, 1996, and shall be disseminated to all units of each
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as, fees, 1 state and local department and agency no later than July
the cost 2 1, 1996. The Attorney General shall, as necessary, update
:)erty or 3 the guidelines to reflect fundamental changes in the law
actually 4 relating to takings occurring as a result of state and
rather 5 federal Supreme Court decisions.
lequate 6 =(c) For the purpose of this section:
7 (1) "Actions, refers to proposed state regulations,
agency "` 8 proposed state legislation, comments on proposed,state
above 9 legislation, applications of state regulations to specific
.tion -or. 10. property; 'or. ' . state -governmental actions physically
g pY g p , p p . Y� or other:policy
1
invading or occu m rwate ro ert
.,both of 12 . statements'or actions related to state regulation or direct
13 = physical'invasion or occupancy, but does not include:
imental 14 t A ` Actionsin which=the' ower°of eminent doma.in`-is
p.
rirnent 15 formally exercised
)f their 16 ' ('B) `Law enforcement actions' involving seizure, Ior
ions on 17 - 'violation of a criminal statute;-of property.for forfeiture
.18- or"as evidence'in criminal proceedings.
should x 19 (C) .Studies or similar efforts on'planning activities.
20 .(D) Communications between state or local land use
:cessary ( annin agencies p 21 Tand federal a encies or
or .those g g g departments
.te. 22 regarding planned or proposed state or local actions
nts and 23 : 'regulating private property regardless of whether those
ibed in //�� 24 communications are initiated by a state or local authority
..g, and < < V 25 or.are undertaken in response to an invitation by a federal
orthe : 26 agency or department.
�d States 27 (2) "Guidelines" means the "Guidelines for the
risk of 28 Evaluation of Risk and Avoidance and Unanticipated
treasury. a 29 Takings" promulgated pursuant to subdivision (b) .
,ttorney . 30 (3) Policies that have takings implications - - means
d herein 31 state or local regulations, proposed. state regulations,
nts and 32 proposed state or local legislation,comments on,proposed
entitled 33 state legislation or other state'or local policy statements
lance.of i ` ` 34 that, if implemented or enacted, .could effect a taking,
artment 35 such as rules and regulations that propose or:implement
•equired 36 licensing, permitting, or other condition requirements or
gat is the 37 limitations on private property use, or that require
38 dedications or exactions from owners of private property..
.ter than 39 "Policies that have takings implications" does not include
of each (, 40 any of the following:
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SB 635 — S —
1 (A). Actions abolishing regulations, discontinuing
2 governmental programs, or modifying regulations in a
3 manner that lessens interference with the use of private
4 property,
5 (B). Law enforcement actions involving seizure, for
6 violation of a criminal statute, of property for forfeiture
7 or as evidence in criminal proceedings. .
8 (C) Studies or similar efforts or.planning activities.
9 (D) Communications between state or local land use
10 planning,agencies and.federal agencies or departments
11 regarding planned or proposed state or local .actions
.12 regulating pprivate property, regardless of whether-:those
.`13 communications are initiated.by a state or°local^authority
14 or are` undertaken m response ao? an invitation
by the
15 federalagency or department ,
' 16 (4) "Private, property"}means all property,proteQted
17 -' by the Just Compensation clauses of the Fifth
18 Amendment " -to the ' United: States Constitution, as
1 .9 incorporated'and. made applicable to the statesby the
j 20 Fourteenth Amendment, and Section 19 of Article I of the
21 California Constitution.
22 66044. In formulating or. implementing policies that
23 have implications with regard to the-issue of takings, each
24 state I department and agency shall be guided by the
s .251 following general principles: „
26 (a) Governmental officials should ,be sensitive . to,
27 anticipate,. and account'for, the obligations,imposed by
28 the Just Compensation .clauses of the .United.States and
29. California; Constitutions in planning and carrying out
} 30 governmental .actions so that they do not result in the
31 imposition of unanticipated or undue additional burdens
32, on the public fisc.
33 (b) Actions undertaken by governmental officials that �
34 result., in a physical invasion or occupancy of private
35 property, and regulations imposed on ,private. property
36 that substantially affects its value or use, may constitute
37 a taking of property. Further, governmental action may
38 amount to a taking even though the action results'in less
39 than a complete deprivation of all use or value, or of all
40 separate and distinct interests in the same private
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inning 4
1 prpperty, and even if the action constituting a taking is
is in a 2 temporary in nature.
>rivate 3 (c) - Government officials whose_ actions are taken
4 specifically for purposes of protecting public health and
re, for 5 safety are ordinarily given .broader latitude by courts
"eiture 6 before _their actions are considered to be , takings.
7 However, the mere assertion of a public health and safety
ties. VW ` 8 purpose shall be insufficient to avoid a taking. Actions
a>
nd use . 9 characterized as,being taken to protect theublic often
:ments #' 10 may be better ' characterized as _taken ' to benefit the
Ictions 11 public. Actions to which this .section.,applies, :and which
r.those 12 .:are;asserted.to be for the protection of public health and
thorn 13 safet therefore ahould.be undertaken. only in
response
Y .
by; the {14t to' real and sub stantial;threats-to pubhc:healih and safety,
.: 15 and shall be no more extensive necessary to
it ected 16 achieve ;the health and -safety purpose
17 d Althou h.normal overnmental-processes.do not
Fifth . ' O g g
on,. 'as 18 ord nar ly.efiQf takings,undue:delays in dec sionmaking,
by the 19 _,during which"'the, use of.private. property is ;interfered
I of the 20 with, may be,`held to, be. takings. Additionally, a delay.in
'4 21 processing I may increase significantly- . the . size of
es that 22 compensation due if a taking is later found to have
23 occurred.
s, each r .
by the . 24 (e) The Just Compensation clauses . of the United
25 States . and California Constitutions. are. self-actuating,
ive ,to, 26 requiring that' compensation be paid whenever
used by 27 governmental ..action results in. -a taking of private
tes and 28 property, regardless of whether the underlying authority
ng out ` 29 . for the action contemplated a taking or authorized the
in the 30 payment of compensation. Accordingly, governmental
►urdens 31 actions that-may have a significant impact. on the use or
32 value of private property should be.scrutinized to avoid
als that t 33 undue or unplanned burdens on the public fisc.
private 34 66045, In addition to the fundamental principles set
roperty 35 forth'in Section 66044, state and local. departments and
zstitute 36 agencies shall adhere, to the extent permitted by law, to
on may 37 the following criteria when implementing policies that
s in less 38 have takings implications:
:)r of all 39 (a) When a state or local department or agency
private , 40 requires a private party to obtain a permit in order to
99 99
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SB 635 _ 10 -
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1 undertake a specific use of, or action with respect to,
2 private property, any conditions imposed on the granting
3 of a permit shall do both of the following-
4 (1) Serve the same purpose that would have been
5 served by a prohibition sof the use or action.
6 (2) Substantially advance that purpose.
7' (b) When a proposed action would place a restriction
8 on a use of private property,, the restriction imposed on
: { 9 the 'use shall not be disproportionate to the extent to
10 which the use contributes to the overall problem that the
:;-11 ,. restriction is imposed tol redress:
12 (c) . When a proposedaction involves 'permitting
13 process or any. other clecisionmakmg process that will
14 interfere with;'.or :otherwise:prohibit; the use of rivate
15 property 'pen`ding` he 'completion of the process, :the
16 duration of the L process shall :be kept to 4�t1ie minimum
17 necessary to 'accomplish the purpose'of the action.
18 (d) (1) Before undertaking any proposed <action
19 regulating private property -`use for the protection of
20 public health or safety, the state or Joc:al department or
'21 agency involved shall,in internal deliberative documents
22 and in any submissions to a' leg slative. body, board,
23 .-commission, or other decisionmaking entity that are
-24 required, do all of the following:
25 (A) Identify clearly, with as much specificity as
26 possible, the public health or safety. risk created by the
27 private property use that is the subject of the proposed
28 action.
29 (B) Establish that the proposed action substantially
30 advances. the purpose of protecting public health and
- 31 safety against the specifically,identified'risk.
32 (C) , Establish; to the . extent passible, that the
33 restrictions imposed on .the private property . are not
34 disproportionate to the extent to which the use -=
35 contributes to the overall risk.
36 . D Estimate to the extent possible, the otential cost
( ) � p � p ,.
37 to the government in the event that a court later
38 determines that the action-constituted a taking.
39 (2) In instances in which there is an immediate threat_
40 to health and safety that constitutes an emergency
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9 SB .635 12 —
1 stated in Section 66044 and this section, and the Director
2 of Finance shall take action to ensure. that all takings
3 awards levied against agencies, are properly accounted
4 for in agency budget.submissions.
5 (B) In addition to the guidelines required by
.6 subparagraph ..(A) , the Attorney General shall, in
7 consultation,with each state,department and agency to , `°` ;
.8 which this section applies, promulgate supplemental
9 ;guidelines appropriate to the specific obligations of that
10department or agency. 1
This section is.' intended, only, to_ improve the 1
a
1,2 internal amanagemenfi .of the state and,';local government 1
13x and �s z not intended to create an ri ht ::or :benefit
y , g 1
J.
14 substantives or ;procedural, enforceable at law by a:party 1
z.:
15 against-the.state, i s:,agencies i its officers„or any .person. . 1
16 66046 Notwithstanding any.,other,.provision of_law:: 1.
pitbhc,agency may regulate landtuse only to the K 1
18. . extent that it is necessary- to..do either of tho.following: . 1�
-:19 (1) `Plan and provide for public .services, including 1,
20 police;.fire...schools, water, sewer, :and streets, for "the 1 .
21 , residents .of the entity regulating the use. 2(
22 (2)`,; Prevent- nuisances or uses obnoxious' to existing 2C
214
23 landowners as those`are,defined.in the common law.
24 (b) Environmental protection' shall be accomplished 2
25 within the system of goals.established by the local agency. 24L
26 Housing,job, and community services goals shall balance 2E
27 environmental concerns with housing-needs,-the needs of 2i
s 28 the community for goods and services, and the job needs 2�
29 of,the community. A public-.agency may,not ,deprive a. 2c
30 ,.landowner of the.use of his.or. her property to accomplish ( 3C
31. environmental -goals . without compensation, to that. 31
32. "landowner for the value lost as a.result.of. the regulation. 32
33 66047. Notwithstanding any other provision of law: 33
34 (a) Whenever implementation of any regulatory �` �- 34
35 program by the state or any of its political subdivisions 35
36 denies a permitted use, without adequate compensation 36
37 therefor, by a landowner of his or her land, or modifies or 37
38. conditions an entitlement approval for a permitted use on 38
39 providing a public -benefit without adequate 39
40 compensation, the property shall be deemed to have 40
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� ff4ct to, . 1 requiring immediate response, the analysis required by
nting 2 this subdivision may be done upon completion of the
3 emergency action. .
been 4 (e) (1) The head of each state or local department
5 and agency shall designate an official to be responsible for
6 . ensuring compliance with this section with respect to the
7 actions of:.that department or enc
.ction ; i P agency.
'd o 8 (2) State and local departments and,agencies shall, to
nt to 9 the extent permitted by law, identify the takings
it the ; 10 implications of proposed regulatory actions and address
, 11the merits of those actions in`light of the identified
takings
ig 12 ;implications; if;'any;..-in.,--all required �abmrssions-made to
ttin
C, will :`13 r :!ahe,deci'sion�riakin `body 'of the: department, or agency.
ovate >14 r;Significant aakmgs :implications shall :also ':be identified
'.the 15 ,and"'discussed -..notices °of-`proposed rulemaking and
mum. 16 'm essages transmitting proposals' 'to the 'Legislature,
. ."�17 stating`the conclusions of the department or agency on
ction 18 F 1,ithe* takings issues.
)n of ~;;'1.9 (3) (A) :. State and local departments and agencies
,nt or :., 20 shall identify each existing state rule and regulation j
aents 21 , against which a takings award has been made or against
oard, 22 which a takings; claim is pending, including-the amount
t are. 23 -of each claim or award.
24 ' '(B) For the purposes of this section,,a' "takings" award
_y as C, ',25.,fhas been made or a "takings claim is, pending if the
y the 26 award was made, or the pending claim brought, pursuant
posed t 27 to either, or both, of the Just Compensation clauses-of the
28 United States and California Constitutions. An itemized i
.tially 29 compilation ;of any and all awards of this type made
and -30 :during"the 1995-96 fiscal year and a:ny pending.takings
1'. claims shall be submitted to the Attorney General on or
the .32:,.`>be,fore December 31,.1996.
not . 33� . (4) Each state and local department and agency shall
use 34 ` submit annually to the Attorney General an itemized
35 compilation of all 'awards of just compensation entered
1 cost 36 against the state for takings. 1
later 1 37 (5) (A) . The Attorney General shall, to the extent
38 permitted by law, take action to ensure that the policies
hreat 39 of the state and local departments and agencies are
;ency 40 consistent with the principles, criteria, and requirements
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SB 635 — 14 -
1
14 -1 use constitutes a nuisance under the law, or poses a.
03
2 demonstrable threat to the public health, welfare, and
3 safety shall not be binding upon the court. The court's
4 review of the determination of the public agency or
5- agencies shall.be de novo.
6 66049: (a) The statute of limitations for actions
7 brought pursuant'to this section shall be the statute of
u
8 limitations for ordinary actions brought for injuries to real
9 property. The statute of limitations shall begin to run
10: upon:the final administrative decision implementing- the
. 11 regulatory.program . affecting plaintiffs' property: This ,
12 statute, of:limitations;applies to anyr claim ;that may be
- . 13° :brought pursuant��to any:=o.ther:provision:of law. � . ,:`
:A :program' is implemented :with :respect 'to an
15 ownees,or -user's property,when;.actually:afSpl ed 6 that : ,
16 property_unless'the�enactment of.the.:prograni bby.-d se ,
17 operates to reduce the fair'market_Valu e.of'real property;
18 or any legally recognized interest therein, to less.than 50
19 percent of its fair market value for the uses permitted'at
20 the.,- time .:the owner . acquired title; withoutfurther :fes
21governmental action; and the program contains no
22 provision allowing for. ; relief from the program's
23 operation..
24 (c) This chapter shall apply not only to new regulatory
25 programs, but also to the application of regulatory
26 programs in effect at the time of the enactment of the act
27 'that adds this.chapter, including, but not.limited to, land
28 use law or zoning laws and regulations applied to the.
' =
20 . owner's property:
30 66050. (a) Notwithstanding any other provision of
i
31 law,if a court determines that an action by the state or by.
32 any of:its political subdivisions constitutes a taking of the
33 . 'property of the person pursuant to this chapter,- the court
34' shall'order the state or its subdivision to do one or more
35 of the following:
36 (1) Compensate the property owner for full amount of
37 the lost value.
38 (2) Purchase the property; in the public interest; at its
39 fair market value, as, determined by jury, before its value
40 was affected by any regulatory program on inaction. This
i
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- 13 — SB 635
irector �� 1 been taken forublic use, and the landowner may file an
p Y
takings 2 action for . compensation in a court of competent
)unted - 3 jurisdiction.
4 (b) The owner -or user shall have the right to require
--d by 5 condemnation by, and just compensation from, the
all; in 6 governmental unit, or units,. when more than one
;ncy to1i7 governmental unit is involved, imposing the regulation
mental 8 resultingin decreased 1 i
value, or to receive compensation
of that. f 9 for the reduction in value caused by governmental action,
10 and.- in*' either case to have the amount of this
ve the 11 com ensation' determined b . a 'Jury. When._more"than
g:. -p Y ..
•nment 12 one governmental' :unit. :is involved, the court" shall
Benefit, 13 .'determine the proportion ,each tint shall be," uired. to
a party14 contribute to the:compen"sation
.
Jerson. . 15� (c) The compensafion ` ordered�''.pursuant ` to this
faaw:: 16 :°chapter shalfbe"for the full value of the interest'taken, or
y.. to the 17 . for the full',: mount of the decrease i.n fair market value,
►wing:. 18 and shall not be limited to the amount, by which .the
eluding 19 . decrease in fair market value exceeds 50 percent.
for the 0
� 20 (d) Governmental units subject to this chapter shall
21 not make waiver of the rovisions of his chapter a
P t p
existing 22 - condition for approval of the use of real property or the
law. r 23 issuance of any permit or other.entitlement. Plaintiffs
Lplished 24 may accept an approval of use;, permit; or other
agency. 25 entitlement granted by the public agency without
balance 26 compromising their rights under this -chapter if either or
needs of 27 both of the following occur:
,b needs
t.. 28, (1) .A written reservation of rights is.made-a.t'the time
-1prive a 29 of. acceptance_of the. ;authorization, permit, or other
omplish 30 entitlement.
to that. 31. . (2) - An oral statement reserving. those-rights is made
;elation. 32, before the public agency- granting. the authorization,
A.law: , 33 permit, or�other entitlement at a public meeting at'which
gulatory ' 34 the governmental unit renders its decision.
iivisions 35 66048. No compensation shall be required by virtue of
ensation 36 this chapter if the regulatory program is an exexcise of the
)difies or . _ 37 police power to prevent uses noxious in fact, constitute a
;d use on .38 nuisance under the law, or-pose a demonstrable threat to
adequate - 39 the public health,welfare or safety:Determination by the
to have 40 governmental unit or units involved that a use is a noxious
1.
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SB 635 _ 16 —
I
161 of the taxpayer's property downward by,an amount equal .
2 to the difference between the fair market value of the
3 property under the new regulatory program and the
4 previous fair market value.
5 SEC. 5. ' If any provision of this act or the application
6 thereof to any "person or circumstances is held invalid,
7 that invalidity , shall not affect other provisions or
8 applications of the act which can-be given effect without
9 the invalid provision or application, and to this end the
10 ; provisions=of this act are severable
11 SEC 6` ,Notwithstanding Section 1610 of the
12 Government Code''!if the Commission;ori State Mandates .
13,r-determines that this act contains`:cost`s mandated;by the
14 state, reimbursement ''to local''` "agencies ' and school .
15 districts for,those costs shall b, made-pursuant to Part 7
16 (commencing with Section ,17500) of
Division: . of Title
17 2��of°the Government Code:'If`the "statewide cost:of,the
18 claim for'<reimbursement does`�not exceed' one million
_19 dollars ($1,000,000),reimbursement'sha.U, 0. made from
20 the State Mandates Claims Fund:
21 Notwithstanding Section 12580 of the` Government
22 ' Code,unless otherwisespecified-the provisions of this act
23 shall become operative on the 'same date that the act
24 . takes effect pursuant to the California Constitution.
j
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Ut -'tic. 1:^ t.'- r-. •' - -
_ 15 — SB 635
es a
T 1 property shall be compensated at its highest and best use,
and 2 based on full value at fair market price.
art's 3 (3) Modify its action or inaction with respect to the
y or % , 4 property so as to minimize any detrimental effect to the
5 property's Value and restore full market value.
:ions 6 (b) This section shall not be, construed to affect any
.e of 7 remedy which is constitutionally required.
8 ithstandin an other provision of law, thereal c Notw
run` p agency 9 ' public a a encies , sub ect to an award of
�: Y or . g j
the 10 . compensation under:this chapter may elect to relax the
.
This , 11 land use planning,, zoning, or other:.regulatory program
y be 12 ,without A, further, .public hearings;' proceedings, or
�3environmental,review required If the°public agency or
14 a encies : elect to. 4-so relax ,the .;affe.cted : re ator
an : , g Y
that `` 15, program,, the -:r previously effective program shall
tself ra 16 automatically;be m effect
arty, 17 (d) '.Any permit,conditional use :permit;authorization,
n 50 18 or other; entitlement: granted under a program rolled
19 -back pursuant to subdivision. c shall continue to be
td er, 20 valid notwithstandin an -provision of law in the
Cher. �� `� � g Y p
no 21 program reinstated by.the rollback.
am's 22 66051. , Notwithstanding any other provision of law,
23 nothing in this chapter shall be construed to preclude
-tory 24, property owners from bringing legal challenges to
.tory - ,, `' 25 regulatory programs affected by this chapter in I instances
act 26 where regulation causes diminution ,in value .of the
land .27 . property or the use.thereof does not exceed 50 percent of
the 28 , fair :market value forthe uses permitted at the time the
'- 29 owner acquiredtitle..nor shall;this chapter be.construed
n of 30 to preclude property owners ' from bringing legal
�r by 31 challenges to regulatory programs affected by this
F the , 32 chapter based-on other provisions of law.
ourt 33 66052. Notwithstanding any other provision of law,
Wore ' 34 whenever, on or after the effective date of the act that
35 adds this chapter, a public agency or any of its political
nt of 36 subdivisions imposes, changes, or implements any land
37 use planning, zoning, or other regulatory program in such
at its 38 a way as to reduce the previous fair market value of a
,alue 39 taxpayer's property, the county assessor shall, on or
This f P. 40 before the ensuing April 1, adjust the assessed valuation
..:
99 99