2000 Legislation
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SENATE BILL NO. 1328 – Eminent domain, negotiatn/procedure

SENATE BILL NO. 1328

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Daily Data Tracking History



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
negotiations.
                                                                        
01/27    Senate intro - 1st rdg - to printing
01/28    Rpt prt - to Loc Gov

Bill Text


 S1328
                                                                        
                                                                        
  ||||              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
 29        injury;
 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
                                                                        
                                          2
                                                                        
  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
 18    expense.
 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
 23    domain.
 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 / Fiscal Impact


                      STATEMENT OF PURPOSE
                            RS09623

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.

                          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                          S 1328