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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
|||| 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