View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
H0197...................................................by LOCAL GOVERNMENT EMINENT DOMAIN - Amends existing law relating to eminent domain to require business owners claiming business damages to submit a written business damage claim to the condemning authority within ninety days after the condemning authority's initial offer letter; to provide that the condemning authority's initial offer letter shall include certain information; to provide that the business owner's claim must be sent by certified mail; to provide the court shall strike the business owner's claim for business damages in subsequent condemnation proceedings under certain conditions; to require that the business damage claim be prepared by an individual familiar with the operations of the business owner's business; to provide that the business owner shall provide the condemning authority with certain business records; and to provide that the condemning authority's good faith in failing to offer compensation shall not be contested at a possession hearing if the business owner has not given notice of its intent to claim business damages within a certain time period. 02/09 House intro - 1st rdg - to printing 02/12 Rpt prt - to Loc Gov
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 197 BY LOCAL GOVERNMENT COMMITTEE 1 AN ACT 2 RELATING TO EMINENT DOMAIN PROCEEDINGS; AMENDING SECTION 7-711, IDAHO CODE, TO 3 REQUIRE BUSINESS OWNERS CLAIMING BUSINESS DAMAGES TO SUBMIT A WRITTEN 4 BUSINESS DAMAGE CLAIM TO THE CONDEMNING AUTHORITY WITHIN NINETY DAYS AFTER 5 THE CONDEMNING AUTHORITY'S INITIAL OFFER LETTER, TO PROVIDE THAT THE CON- 6 DEMNING AUTHORITY'S INITIAL OFFER LETTER OR ACCOMPANYING INFORMATION SHALL 7 INCLUDE CERTAIN INFORMATION, TO PROVIDE THAT THE BUSINESS OWNER'S CLAIM 8 MUST BE SENT TO THE CONDEMNING AUTHORITY BY CERTIFIED MAIL, TO PROVIDE 9 THAT THE COURT SHALL STRIKE THE BUSINESS OWNER'S CLAIM FOR BUSINESS DAM- 10 AGES IN SUBSEQUENT CONDEMNATION PROCEEDINGS UNDER CERTAIN CONDITIONS, TO 11 REQUIRE THAT THE BUSINESS DAMAGE CLAIM BE PREPARED BY AN INDIVIDUAL FAMIL- 12 IAR WITH THE OPERATIONS OF THE BUSINESS OWNER'S BUSINESS, TO PROVIDE THAT 13 THE BUSINESS OWNER SHALL PROVIDE THE CONDEMNING AUTHORITY WITH CERTAIN 14 BUSINESS RECORDS, TO PROVIDE THAT THE CONDEMNING AUTHORITY'S GOOD FAITH IN 15 FAILING TO OFFER COMPENSATION SHALL NOT BE CONTESTED AT A POSSESSION HEAR- 16 ING IF THE BUSINESS OWNER HAS NOT GIVEN NOTICE OF ITS INTENT TO CLAIM 17 BUSINESS DAMAGES WITHIN A CERTAIN TIME PERIOD AND TO MAKE TECHNICAL COR- 18 RECTIONS. 19 Be It Enacted by the Legislature of the State of Idaho: 20 SECTION 1. That Section 7-711, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 7-711. ASSESSMENT OF DAMAGES. The court, jury or referee must hear such 23 legal testimony as may be offered by any of the parties to the proceedings, 24 and thereupon must ascertain and assess: 25 1. The value of the property sought to be condemned, and all improvements 26 thereon pertaining to the realty, and of each and every separate estate or 27 interest therein; if it consists of different parcels, the value of each par- 28 cel and each estate or interest therein shall be separately assessed. For pur- 29 poses of ascertaining the value of the property, the assessed value for prop- 30 erty tax purposes shall be used as the minimum amount for damages unless the 31 court, jury or referee finds the property has been altered substantially. 32 2. If the property sought to be condemned constitutes only a part of a 33 larger parcel: (a) the damages which will accrue to the portion not sought to 34 be condemned, by reason of its severance from the portion sought to be con- 35 demned, and the construction of the improvement in the manner proposed by the 36 plaintiff; and (b) the damages to any business qualifying under this subsec- 37 tion having more than five (5) years' standing which the taking of a portion 38 of the property and the construction of the improvement in the manner proposed 39 by the plaintiff may reasonably cause. The business must be owned by the party 40 whose lands are being condemned or be located upon adjoining lands owned or 41 held by such party. Business damages under this subsection shall not be 42 awarded if the loss can reasonably be prevented by a relocation of the busi- 43 ness or by taking steps that a reasonably prudent person would take, or for 2 1 damages caused by temporary business interruption due to construction; and 2 provided further that compensation for business damages shall not be dupli- 3 cated in the compensation otherwise awarded to the property owner for damages 4 pursuant to subsections(1). and(2). (a) of this section.7-711, Idaho Code.5 (i) If the business owner intends to claim business damages under this 6 subsection, the owner, as defendant,must submit a written business damage 7 claim to theplaintiffcondemning authority within ninety (90) days after 8 service of thesummons and complaint for condemnationcondemning 9 authority's initial offer letter. Theplaintiff'scondemning authority's 10 initial offer letter or accompanying information must expressly inform the 11defendantbusiness owner of its rights under this subsection, and must 12 further inform thedefendantbusiness owner of its right to consult with 13 an attorney. 14 (ii) Thedefendant'sbusiness owner's written claim must be sent to the 15plaintiffcondemning authority by certified mail, return receipt 16 requested. Absent a showing of a good faith justification for the failure 17 to submit a business damage claim within ninety (90) days, or an agreed 18 extension by the parties, the court shall strike thedefendant'sbusiness 19 owner's claim for business damages in any subsequent condemnation proceed- 20 ing. 21 (iii) The business damage claim must include an explanation of the nature, 22 extent, and monetary amount of such claimed damages and must be prepared 23 by the owner, a certified public accountant, or a business damage expert 24 familiar with the nature of the operations of thedefendant'sbusiness 25 owner's business. Thedefendantbusiness owner shall also provide the 26plaintiffcondemning authority with copies of thedefendant'sbusiness 27 owner's business records that substantiate the good faith offer to settle 28 the business damage claim. The business damage claim must be clearly seg- 29 regated from the claim for property damages pursuant to subsections(1). 30 and(2).(a) of this section.7-711, Idaho Code.31 (iv) As used in this subsection, the term "business records" includes, 32 but is not limited to, copies of federal and state income tax returns, 33 state sales tax returns, balance sheets, and profit and loss statements 34 for the five (5) years preceding which are attributable to the business 35 operation on the property to be acquired, and other records relied upon by 36 the business owner that substantiate the business damage claim. 37 (v) Theplaintiff'scondemning authority's good faith in failing to 38 offer compensation for business damages shall not be contested at a pos- 39 session hearing held pursuant to section 7-721, Idaho Code, if thedefend-40antbusiness owner has not given notice of its intent to claim business 41 damages prior to the date of filing of the motion that initiates the pro- 42 ceeding under that section. 43 3. Separately, how much the portion not sought to be condemned, and each 44 estate or interest therein, will be specially and directly benefited, if at 45 all, by the construction of the improvement proposed by the plaintiff; and if 46 the benefit shall be equal to the damages assessed, under subsection 2. of 47 this section, the owner of the parcel shall be allowed no compensation except 48 the value of the portion taken; but if the benefit shall be less than the dam- 49 ages so assessed, the former shall be deducted from the latter, and the 50 remainder shall be the only damages allowed in addition to the value. 51 4. If the property sought to be condemned be for a railroad, the cost of 52 good and sufficient fences along the line of such railroad, and the cost of 53 cattle guards where fences may cross the line of such railroad. 54 5. As far as practicable, compensation must be assessed for each source 55 of damages separately. 3 1 6. If the property sought to be condemned is private real property activ- 2 ely devoted to agriculture, the damages which will accrue because of the 3 costs, if any, of farming around electrical transmission line structure(s) for 4 a transmission line with a capacity in excess of two hundred thirty (230) KV 5 (kilovolts). If the property sought to be condemned has been the subject of a 6 previous condemnation proceeding or proceedings for electrical transmission 7 line structure(s) and at the time of condemnation the field holds other elec- 8 trical transmission line structure(s), such evidence of costs referred to 9 above may also include the cumulative effects, if any, of conducting farming 10 operations around other electrical transmission line structure(s) in the same 11 field, whether such structure(s) are of the condemner or not.
STATEMENT OF PURPOSE RS 10904 The purpose of this amendment is to motivate both the condemning authority and the property owner to enter into good faith negotiations to establish any business damages that may result from a taking before an eminent domain proceeding has been initiated. Many times a condemning authority reaches a voluntary settlement with the property owner without having to resort to litigation. At present, the statute does not allow the condemning authority to obtain the business records and other information necessary for it to make a good faith settlement offer of business damages until after the condemnation action is filed. Amending this section to require the condemning authority to notify the property owner/business owner of this possible right to claim business damages at the time of the initial offer letter, and allowing the business owner the next ninety (90) days to make and support a claim for business damages, will cover all situations not just those requiring litigation. FISCAL IMPACT There is no fiscal impact to the general fund. There should be a savings to the general public and the public condemning authority, reflecting a reduction in the costs of acquiring right-of-way and other property needed for a public use as a result of an expected decrease in the number of condemnation suits where business damages are involved. Contact Name: Stuart O. Davis, Executive Director Idaho Assoc of Highway Districts, Inc. Phone: 859-9378 STATEMENT OF PURPOSE/FISCAL NOTE H 197