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S1248.............................................................by BRANDT EMINENT DOMAIN - Amends existing law relating to eminent domain proceedings to delete provisions for discretionary award of costs and fees; and to provide for the award of reasonable costs and attorney's fees to the defendant in eminent domain actions if it is determined the amount of just compensation exceeds the condemner's last prelitigation offer by 10% or more. 01/11 Senate intro - 1st rdg - to printing 01/12 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE SENATE SENATE BILL NO. 1248 BY BRANDT 1 AN ACT 2 RELATING TO COSTS IN EMINENT DOMAIN PROCEEDINGS; AMENDING SECTION 7-711A, 3 IDAHO CODE, TO DELETE THE PROVISION FOR DISCRETIONARY AWARD OF COSTS AND 4 FEES AND TO PROVIDE THAT THE COURT SHALL DETERMINE WHAT COSTS AND FEES ARE 5 REASONABLE TO AWARD; AMENDING SECTION 7-718, IDAHO CODE, TO PROVIDE FOR 6 THE AWARD OF REASONABLE COSTS AND ATTORNEY'S FEES TO THE DEFENDANT IN EMI- 7 NENT DOMAIN ACTIONS IF IT IS DETERMINED THE AMOUNT OF JUST COMPENSATION 8 EXCEEDS THE CONDEMNER'S LAST PRELITIGATION OFFER BY TEN PERCENT OR MORE. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 7-711A, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 7-711A. ADVICE OF RIGHTS FORM -- RIGHTS WHEN CONDEMNING AUTHORITY 13 ACQUIRES PROPERTY. Whenever a state or local unit of government or a public 14 utility is beginning negotiations to acquire a parcel of real property in fee 15 simple, the condemning authority shall provide the owner of the property a 16 form containing a summary of the rights of an owner of property to be acquired 17 under this chapter. If the condemning authority does not supply the owner of 18 the real property with this form, there will be a presumption that any sale or 19 contract entered into between the condemning authority and the owner was not 20 voluntary and the condemning authority may be held responsible for such 21 relief, if any, as the court may determine to be appropriate considering all 22 of the facts and circumstances. The form shall contain substantially the fol- 23 lowing: 24 (1) The (name of entity allowed to use eminent domain proceedings pursu- 25 ant to chapter 7, title 7, Idaho Code) has the power under the constitution 26 and the laws of the state of Idaho and the United States to take private prop- 27 erty for public use. This power is generally referred to as the power of 28 "eminent domain" or condemnation. The power can only be exercised when: 29 (a) The property is needed for a public use authorized by Idaho law; 30 (b) The taking of the property is necessary to such use; 31 (c) The taking must be located in the manner which will be most compati- 32 ble with the greatest public good and the least private injury. 33 (2) The condemning authority must negotiate with the property owner in 34 good faith to purchase the property sought to be taken and/or to settle with 35 the owner for any other damages which might result to the remainder of the 36 owner's property. 37 (3) The owner of private property to be acquired by the condemning 38 authority is entitled to be paid for any diminution in the value of the 39 owner's remaining property which is caused by the taking and the use of the 40 property taken proposed by the condemning authority. This compensation, called 41 "severance damages," is generally measured by comparing the value of the prop- 42 erty before the taking and the value of the property after the taking. Dam- 43 ages are assessed according to Idaho Code. 2 1 (4) The value of the property to be taken is to be determined based upon 2 the highest and best use of the property. 3 (5) If the negotiations to purchase the property and settle damages are 4 unsuccessful, the property owner is entitled to assessment of damages from a 5 court, jury or referee as provided by Idaho law. 6 (6) The owner has the right to consult with an appraiser of the owner's 7 choosing at any time during the acquisition process at the owner's cost and 8 expense. 9 (7) The condemning authority shall deliver to the owner, upon request, a 10 copy of all appraisal reports concerning the owner's property prepared by the 11 condemning authority. Once a complaint for condemnation is filed, the Idaho 12 rules of civil procedure control the disclosure of appraisals. 13 (8) The owner has the right to consult with an attorney at any time dur- 14 ing the acquisition process. In cases in which the condemning authority 15 condemns property and the owner is able to establish that just compensation 16 exceeds the last amount timely offered by the condemning authority by ten per- 17 cent (10%) or more, the condemning authoritymayshall be required to pay the 18 owner's reasonable costs and attorney's fees. The courtwillshall make the 19 determinationwhetherregarding what costs and feeswill be awardedare rea- 20 sonable to award. 21 (9) The form contemplated by this section shall be deemed delivered by 22 United States certified mail, postage prepaid, addressed to the person or per- 23 sons shown in the official records of the county assessor as the owner of the 24 property. A second copy will be attached to the appraisal at the time it is 25 delivered to the owner. 26 (10) If a condemning authority desires to acquire property pursuant to 27 this chapter, the condemning authority or any of its agents or employees shall 28 not give the owner any timing deadline as to when the owner must respond to 29 the initial offer which is less than thirty (30) days. A violation of the pro- 30 visions of this subsection shall render any action pursuant to this chapter 31 null and void. 32 (11) Nothing in this section changes the assessment of damages set forth 33 in section 7-711, Idaho Code. 34 SECTION 2. That Section 7-718, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 7-718. COSTS -- ATTORNEY'S FEES.Costs may be allowed or not, and, if37allowed, may be apportioned between the parties on the same or adverse sides38in the discretion of the courtReasonable costs and attorney's fees shall be 39 awarded to the defendant in eminent domain actions if the amount of just com- 40 pensation determined by the court, jury, mediator, arbitrator or commissioners 41 exceeds the condemner's last prelitigation offer by ten percent (10%) or more.
STATEMENT OF PURPOSE RS 15557 Kelo highlighted the need to restore balance in the area of eminent domain. One way to address this is by providing that private property owners in condemnation do not receive less than just compensation by having to pay costs and attorneys fees to prove that the condemner's assessment of just compensation was not fair; this bill allows reimbursement of reasonable costs and attorneys fees incurred by owners who prevail in condemnation cases. FISCAL NOTE It is difficult to assess the fiscal impact as there is wide variance currently in costs and fees awarded by judges. This bill could potential increase costs to condemners, but if so, it would do so by making property owners whole as the constitution requires and shifting the burden of the cost of assessing just compensation off of owners and back onto the condemning agency as the Constitution requires. As a practical matter, the bill could result in cost savings by creating an incentive for government to assess just compensation fairly and avoid forcing property owners to incur costs and fees in litigation Contact: Name: Senator Skip Brandt Representative Mike Moyle Phone: 332-1326 332-1000 STATEMENT OF PURPOSE/FISCAL NOTE S 1248