Print Friendly SENATE BILL NO. 1328 – Eminent domain, negotiatn/procedure
SENATE BILL NO. 1328
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S1328......................................by LOCAL GOVERNMENT AND TAXATION
EMINENT DOMAIN - Adds to existing law to provide required duties for a
state or local unit of government or public utility that is beginning
negotiations to acquire a piece of real property; to provide for damages;
to provide forms; to provide procedures; to provide rights of owners of
property; and to provide for prima facie evidence of bad faith in
01/27 Senate intro - 1st rdg - to printing
01/28 Rpt prt - to Loc Gov
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1328
BY LOCAL GOVERNMENT AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO EMINENT DOMAIN; AMENDING CHAPTER 7, TITLE 7, IDAHO CODE, BY THE
3 ADDITION OF A NEW SECTION 7-711A, IDAHO CODE, TO PROVIDE REQUIRED DUTIES
4 OF A STATE OR LOCAL UNIT OF GOVERNMENT OR PUBLIC UTILITY THAT IS BEGINNING
5 NEGOTIATIONS TO ACQUIRE A PIECE OF REAL PROPERTY, TO PROVIDE FOR DAMAGES,
6 TO PROVIDE FORMS, TO PROVIDE PROCEDURES, TO PROVIDE RIGHTS OF OWNERS OF
7 PROPERTY AND TO PROVIDE FOR PRIMA FACIE EVIDENCE OF BAD FAITH IN NEGOTIA-
8 TIONS; AND PROVIDING AN EFFECTIVE DATE.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Chapter 7, Title 7, Idaho Code, be, and the same is
11 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
12 ignated as Section 7-711A, Idaho Code, and to read as follows:
13 7-711A. ADVICE OF RIGHTS FORM -- RIGHTS WHEN GOVERNMENT OR PUBLIC UTILITY
14 WANTS PROPERTY. Whenever a state or local unit of government or a public util-
15 ity is beginning negotiations to acquire a piece of real property, the entity
16 government or public utility shall provide the owner of the property a form
17 containing the following information. If the government or public utility does
18 not supply the owner of the real property with this form, up to triple the
19 amount of the damages may be awarded pursuant to section 7-711, Idaho Code.
20 The form shall contain substantially the following:
21 (1) The (name of entity allowed to use eminent domain proceedings pursu-
22 ant to chapter 7, title 7, Idaho Code) has the power under the constitution
23 and laws of the state of Idaho and the United States to take private property
24 for public use. This power is generally referred to as the power of "eminent
25 domain" or condemnation. The power can only be exercised when:
26 (a) The property is needed for a public use;
27 (b) The taking of the property is necessary;
28 (c) The taking will cause the greatest public good and the least private
30 (d) The government or public utility has negotiated with the property
31 owner in good faith in an attempt to acquire the property through volun-
32 tary sale and purchase; and
33 (e) "Just compensation" for the taking has been ascertained and paid.
34 (2) The owner of private property to be acquired by the government or
35 public utility is entitled to be paid for the property and property rights
36 which are taken. The government or public utility must pay the fair market
37 value of the property and property rights. The government or public utility
38 will not be required to pay more than any other fully knowledgeable buyer in
39 the open market and will be allowed to pay less than any other knowledgeable
40 buyer in the open market.
41 (3) The value of the property to be taken is to be determined based on
42 the highest and best use of the property, which may differ from its current
43 use. For example, if property is zoned for commercial use but is currently
1 used for agricultural purposes, the value of the land to be taken must be
2 based on commercial use rather than agricultural.
3 (4) The owner of the property to be acquired by the government or a pub-
4 lic utility is also entitled to be paid for any diminution in the value of the
5 owner's remaining property which is caused by the taking and the use of the
6 property taken proposed by the government or public utility. This compensa-
7 tion, called "severance damages," is measured by comparing the value of the
8 property before the taking and the value of the property after the taking.
9 (5) The owner has the right to consult with an attorney at any time dur-
10 ing the acquisition process. In cases in which the government or a public
11 utility condemns property and the owner is able to establish that just compen-
12 sation exceeds the last amount timely offered by the government or public
13 utility by ten percent (10%) or more, the government or public utility may be
14 required to pay the owner's costs and attorney's fees. The court will make the
15 determination whether costs and fees will be awarded or not.
16 (6) The owner has the right to consult with an appraiser of his or her
17 own choosing at any time during the acquisition process at his or her own
19 (7) The owner has the right to obtain a copy of all appraisal reports,
20 prepared by the acquiring agency's or the utility's appraiser upon request.
21 (8) The owner is not responsible for the legal fees of the government or
22 public utility if a lawsuit is filed to acquire the property via eminent
24 (9) If the owner and the government or utility cannot agree as to the
25 amount of just compensation due for the property, the owner has the right to
26 have the issue determined either by the court or a jury at the owner's option.
27 (10) If a government or utility desires to acquire property pursuant to
28 this chapter, the government or utility or any of its agents or employees
29 shall not give the owner any timing deadline as to when the owner must respond
30 to an offer. A violation of the provisions of this subsection shall render
31 any action pursuant to this chapter null and void.
32 (11) Failure by the government or utility to give the owner of property
33 the form required by this section shall be prima facie evidence of bad faith
34 in negotiations.
35 SECTION 2. This act shall be in full force and effect on and after July
36 1, 2000.
STATEMENT OF PURPOSE
Idaho citizens are not being made aware of their legal rights
when they are faced with thetaking of their property be eminent
domain. Government right of way agents or negotiators tellthe
owners that they are not entitled to compensation for various
items which the law of Idahodoes not provide compensation for,
they tell the owners that if they do not sell willingly, they
could be held responsible for the government's costs and attorneys
fees, and they refuse toprovide owners with a copy of the appraisal
report upon which the government's offer is based.There is currently
no remedy for this conduct on the part of the government and no
protection forcitizens, even when the conduct rises to the level
of bad faith. In some cases the representationsof the right of
way agents or negotiators clearly constitute unauthorized practice
of law which hasgone unregulated. This bill is designed to
ensure that Idaho citizens faced with condemnation are madeaware
of their rights under existing State law. The bill does not create
any new rights and will notcost Idaho taxpayers any additional
money. The effect would be to protect citizens fromunscrupulous
strong-arm negotiation tactics as well as innocent misrepresentations
made bymisinformed right of way agents. Citizens cannot exercise
rights they are not aware theyhave; it is only fair that when the
government is taking their private property they are advised of the
constitutional protections and limitations they are entitled to
under our system of laws.
The only fiscal impact would be the printing of the notices.
Contact Name: Senator Grant Ipsen
Phone: (208) 332-1327
STATEMENT OF PURPOSE/FISCAL NOTE S 1328