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S1429......................................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 presumptions;
to provide forms; to provide procedures; to provide rights of owners of
property; to provide for prima facie evidence of bad faith in negotiations;
and to provide for effect on damages.
02/15 Senate intro - 1st rdg - to printing
02/16 Rpt prt - to Loc Gov
S1429
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1429
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 PRESUMPTIONS,
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 TO PROVIDE THE EFFECT ON DAMAGES.
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, there will be a pre-
19 sumption that any sale or contract entered into between the government or
20 utility and the owner was not voluntary and the government or utility may be
21 held responsible for such relief, if any, as the court may determine to be
22 appropriate considering all of the facts and circumstances. The form shall
23 contain substantially the following:
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 laws of the state of Idaho and the United States to take private property
27 for public use. This power is generally referred to as the power of "eminent
28 domain" or condemnation. The power can only be exercised when:
29 (a) The property is needed for a public use pursuant to section 7-701,
30 Idaho Code;
31 (b) The taking of the property is necessary;
32 (c) The taking will cause the greatest public good and the least private
33 injury;
34 (d) The government or public utility has negotiated with the property
35 owner in good faith in an attempt to acquire the property through volun-
36 tary sale and purchase; and
37 (e) "Just compensation" for the taking has been ascertained and paid pur-
38 suant to section 7-711, Idaho Code.
39 (2) The owner of private property to be acquired by the government or
40 public utility is entitled to be paid for the property and property rights
41 which are taken. The government or public utility must pay the fair market
42 value of the property and property rights. The government or public utility
43 will not be required to pay more than any other fully knowledgeable buyer in
2
1 the open market and will not be allowed to pay less than any other
2 knowledgeable buyer in the open market.
3 (3) The value of the property to be taken is to be determined based on
4 the highest and best use of the property, which may differ from its current
5 use. For example, if property is zoned for commercial use but is currently
6 used for agricultural purposes, the value of the land to be taken may be based
7 on commercial use rather than agricultural.
8 (4) The owner of the property to be acquired by the government or a pub-
9 lic utility is also entitled to be paid for any diminution in the value of the
10 owner's remaining property which is caused by the taking and the use of the
11 property taken proposed by the government or public utility. This compensa-
12 tion, called "severance damages," is generally measured by comparing the value
13 of the property before the taking and the value of the property after the tak-
14 ing. Damages are assessed according to section 7-711, Idaho Code.
15 (5) The owner has the right to consult with an attorney at any time dur-
16 ing the acquisition process. In cases in which the government or a public
17 utility condemns property and the owner is able to establish that just compen-
18 sation exceeds the last amount timely offered by the government or public
19 utility by ten percent (10%) or more, the government or public utility may be
20 required to pay the owner's costs and attorney's fees. The court will make the
21 determination whether costs and fees will be awarded or not.
22 (6) The owner has the right to consult with an appraiser of his or her
23 own choosing at any time during the acquisition process at his or her own
24 expense.
25 (7) The owner has the right to obtain a copy of all appraisal reports,
26 prepared by the acquiring agency's or the utility's appraiser upon request.
27 (8) The owner is generally not responsible for the legal fees of the gov-
28 ernment or public utility if a lawsuit is filed to acquire the property via
29 eminent domain.
30 (9) If the owner and the government or utility cannot agree as to the
31 amount of just compensation due for the property, the owner has the right to
32 have the issue determined either by the court or a jury.
33 (10) If a government or utility desires to acquire property pursuant to
34 this chapter, the government or utility or any of its agents or employees
35 shall not give the owner any timing deadline as to when the owner must respond
36 to an offer which is less than sixty (60) days. A violation of the provisions
37 of this subsection shall render any action pursuant to this chapter null and
38 void.
39 (11) Failure by the government or utility to give the owner of the prop-
40 erty the form required by this section shall be prima facie evidence of bad
41 faith in negotiations.
42 (12) Nothing in this section changes the assessment of damages set forth
43 in section 7-711, Idaho Code.
STATEMENT OF PURPOSE
RS09926
Idaho citizens are not being made aware of their legal rights when they are faced
with the taking of their property be eminent domain. Government right of way agents or
negotiators tell the owners that they are not entitled to compensation for various items
which the law of Idaho does 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 to provide 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 for citizens, even when the conduct rises to
the level of bad faith. In some cases the representations of the right of way agents or
negotiators clearly constitute unauthorized practice of law which has gone unregulated.
This bill is designed to ensure that Idaho citizens faced with condemnation are
made aware of their rights under existing State law. The bill does not create any new
rights and will not cost Idaho taxpayers any additional money The effect would be to
protect citizens from unscrupulous strong-arm negotiation tactics as well as innocent
misrepresentations made by misinformed right of way agents. Citizens cannot
exercise rights they are not aware they have; 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.
FISCAL IMPACT
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 S1429