2002 Legislation
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SENATE BILL NO. 1401 – Eminent domain, damages/records


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Daily Data Tracking History

S1401.....................................................by TRANSPORTATION
EMINENT DOMAIN - Amends existing law to revise procedures and time frames
for assessment of damages in eminent domain proceedings; and to provide
that business records in eminent domain proceedings are confidential.
02/08    Senate intro - 1st rdg - to printing
02/11    Rpt prt - to Transp

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                       IN THE SENATE
                                    SENATE BILL NO. 1401
                                BY TRANSPORTATION COMMITTEE
  1                                        AN ACT
  9    Be It Enacted by the Legislature of the State of Idaho:
 10        SECTION 1.  That Section 7-711, Idaho Code, be, and  the  same  is  hereby
 11    amended to read as follows:
 12        7-711.  ASSESSMENT  OF  DAMAGES. The court, jury or referee must hear such
 13    legal testimony as may be offered by any of the parties  to  the  proceedings,
 14    and thereupon must ascertain and assess:
 15        (1.)  The  value  of the property sought to be condemned, and all improve-
 16    ments thereon pertaining to the realty, and of each and every separate  estate
 17    or  interest  therein;  if it consists of different parcels, the value of each
 18    parcel and each estate or interest therein shall be separately  assessed.  For
 19    purposes  of  ascertaining  the  value of the property, the assessed value for
 20    property tax purposes shall be used as the minimum amount for  damages  unless
 21    the court, jury or referee finds the property has been altered substantially.
 22        (2.)  If  the property sought to be condemned constitutes only a part of a
 23    larger parcel: (a) the damages which will accrue to the portion not sought  to
 24    be  condemned,  by  reason of its severance from the portion sought to be con-
 25    demned, and the construction of the improvement in the manner proposed by  the
 26    plaintiff condemning authority; and (b) the damages to any business qualifying
 27    under this subsection having more than five (5) years' standing which the tak-
 28    ing  of  a  portion of the property and the construction of the improvement in
 29    the manner proposed by  the  plaintiff  condemning  authority  may  reasonably
 30    cause. The business must be owned by the party whose lands are being condemned
 31    or  be located upon adjoining lands owned or held by such party. Business dam-
 32    ages under this subsection shall not be awarded if the loss can reasonably  be
 33    prevented by a relocation of the business or by taking steps that a reasonably
 34    prudent  person would take, or for damages caused by temporary business inter-
 35    ruption due to construction; and provided further that compensation for  busi-
 36    ness  damages shall not be duplicated in the compensation otherwise awarded to
 37    the property owner for damages pursuant to subsections (1) and (2) (a) of this
 38    section. 7-711, Idaho Code.
 39        (i)   If the business owner intends to claim business damages  under  this
 40        subsection, the owner, as defendant, must submit a written business damage
 41        claim  to  the plaintiff notify the condemning authority in writing within
 42        ninety (90) one hundred twenty (120) days after service of the summons and
 43        complaint for condemnation condemning authority's  initial  offer  letter.
  1        The  plaintiff's condemning authority's initial offer letter or accompany-
  2        ing information must expressly inform the defendant business owner of  its
  3        rights  under this subsection, and must further inform the defendant busi-
  4        ness owner of its right to consult with an attorney.
  5        (ii)  The defendant's Within such one hundred twenty (120) day period  the
  6        business  owner's  written notice of business damages claim must be either
  7        sent to the plaintiff  condemning  authority  by  certified  mail,  return
  8        receipt  requested,  or raised by the business owner's responsive pleading
  9        to a complaint in condemnation filed by the condemning authority. Absent a
 10        showing of a good faith justification for the failure to submit a  written
 11        notice  of   business  damages claim within ninety (90) one hundred twenty
 12        (120) days after service of the condemning authority's initial offer  let-
 13        ter,  or  an  agreed  extension by the parties, the court shall strike the
 14        defendant's business owner's  claim for business damages in any  condemna-
 15        tion proceeding.
 16        (iii) The  notice of business damages claim must include an explanation of
 17        the nature, extent, and monetary amount of such claimed damages  and  must
 18        be  prepared  by  the  owner, a certified public accountant, or a business
 19        damage  expert  familiar  with  the  nature  of  the  operations  of   the
 20        defendant's  business. The defendant shall also provide the plaintiff with
 21        copies of the defendant's business  records  that  substantiate  the  good
 22        faith offer to settle the business damage claim. The business damage claim
 23        must be clearly segregated from the claim for property damages pursuant to
 24        subsections  (1)  and  (2)(a)  of  section 7-711, Idaho Code copies of the
 25        business owner's business records.  The condemning authority and its  con-
 26        sultants  shall maintain the confidentiality of the business records prior
 27        to the filing of a complaint in condemnation,  and  the  business  records
 28        shall  not  be considered public records subject to inspection and copying
 29        under sections 9-337 through 9-350, Idaho Code.
 30        (iv)  As used in this subsection, the term  "business  records"  includes,
 31        but  is  not  limited  to, copies of federal and state income tax returns,
 32        state sales tax returns, balance sheets, and profit  and  loss  statements
 33        for  the  five  (5) years preceding which are attributable to the business
 34        operation on the property to be acquired, and such other business  records
 35        relied  upon  by  the business owner that substantiate the business damage
 36        claim as the condemning authority may reasonably request as  necessary  to
 37        determine the extent of any business damages.
 38        (v)   The  plaintiff's  condemning  authority's  good  faith in failing to
 39        offer compensation for business damages prior to condemnation shall not be
 40        contested at a possession hearing held pursuant to  section  7-721,  Idaho
 41        Code,  if  the defendant has not given notice of its intent to claim busi-
 42        ness damages prior to the date of filing of the motion that initiates  the
 43        proceeding  under  that  section nor shall an order for possession pending
 44        trial affect the business owner's right to claim business damages  in  the
 45        condemnation  action  if  the one hundred twenty (120) day time period has
 46        not yet expired.
 47        (3.)  Separately, how much the portion not sought  to  be  condemned,  and
 48    each  estate or interest therein, will be specially and directly benefited, if
 49    at all, by the construction of the improvement proposed by the plaintiff  con-
 50    demning  authority; and if the benefit shall be equal to the damages assessed,
 51    under subsection (2.) of this section,  the  owner  of  the  parcel  shall  be
 52    allowed no compensation except the value of the portion taken; but if the ben-
 53    efit  shall be less than the damages so assessed, the former shall be deducted
 54    from the latter, and the remainder shall be the only damages allowed in  addi-
 55    tion to the value.
  1        (4.)  If  the  property sought to be condemned be for a railroad, the cost
  2    of good and sufficient fences along the line of such railroad, and the cost of
  3    cattle guards where fences may cross the line of such railroad.
  4        (5.)  As far as practicable, compensation must be assessed for each source
  5    of damages separately.
  6        (6.)  If the property sought to be  condemned  is  private  real  property
  7    actively  devoted to agriculture, the damages which will accrue because of the
  8    costs, if any, of farming around electrical transmission line structure(s) for
  9    a transmission line with a capacity in excess of two hundred thirty  (230)  KV
 10    (kilovolts).  If the property sought to be condemned has been the subject of a
 11    previous condemnation proceeding or proceedings  for  electrical  transmission
 12    line  structure(s) and at the time of condemnation the field holds other elec-
 13    trical transmission line structure(s), such  evidence  of  costs  referred  to
 14    above  may  also include the cumulative effects, if any, of conducting farming
 15    operations around other electrical transmission line structure(s) in the  same
 16    field, whether such structure(s) are of the condemner or not.
 17        SECTION  2.  That  Section  9-337,  Idaho Code, be, and the same is hereby
 18    amended to read as follows:
 19        9-337.  DEFINITIONS. As used in sections 9-337 through 9-347, Idaho Code:
 20        (1)  "Copy" means transcribing by handwriting,  photocopying,  duplicating
 21    machine and reproducing by any other means so long as the public record is not
 22    altered or damaged.
 23        (2)  "Custodian"  means  the person having personal custody and control of
 24    the public records in question. If no such designation is made by  the  public
 25    agency  or independent public body corporate and politic, then custodian means
 26    any public official having custody of, control of,  or  authorized  access  to
 27    public records and includes all delegates of such officials, employees or rep-
 28    resentatives.
 29        (3)  "Independent public body corporate and politic" means the Idaho hous-
 30    ing and finance association as created in chapter 62, title 67, Idaho Code.
 31        (4)  "Inspect"  means  the  right to listen, view and make notes of public
 32    records as long as the public record is not altered or damaged.
 33        (5)  "Investigatory record" means information with respect to an identifi-
 34    able person, group of persons or entities compiled by a public agency or inde-
 35    pendent public body corporate and politic pursuant to its statutory  authority
 36    in  the  course  of investigating a specific act, omission, failure to act, or
 37    other conduct over which the public agency or independent public  body  corpo-
 38    rate and politic has regulatory authority or law enforcement authority.
 39        (6)  "Law  enforcement  agency"  means any state or local agency given law
 40    enforcement powers or which has authority to investigate,  enforce,  prosecute
 41    or punish violations of state or federal criminal statutes, ordinances or reg-
 42    ulations.
 43        (7)  "Local  agency" means a county, city, school district, municipal cor-
 44    poration, district, public health district,  political  subdivision,   or  any
 45    agency  thereof,  or  any  committee  of  a  local  agency, or any combination
 46    thereof.
 47        (8)  "Person" means any natural person,  corporation,  partnership,  firm,
 48    association,  joint  venture,  state  or  local agency or any other recognized
 49    legal entity.
 50        (9)  "Prisoner" means a person who has been convicted of a  crime  and  is
 51    either  incarcerated  or on parole for that crime or who is being held in cus-
 52    tody for trial or sentencing.
 53        (910) "Public agency" means any state or local agency as defined  in  this
  1    section.
  2        (101) "Public  official" means any state, county, local district, indepen-
  3    dent public body corporate and politic or governmental official  or  employee,
  4    whether elected, appointed or hired.
  5        (112) "Public  record"  includes,  but is not limited to, any writing con-
  6    taining information relating to the conduct or administration of the  public's
  7    business  prepared,  owned,  used or retained by any state agency, independent
  8    public body corporate and politic or local agency regardless of physical  form
  9    or characteristics. A public record shall not include a business record pursu-
 10    ant to section 7-711, Idaho Code.
 11        (123) "State  agency"  means  every  state  officer, department, division,
 12    bureau, commission and board or any committee  of  a  state  agency  including
 13    those in the legislative or judicial branch, except the state militia.
 14        (134) "Writing" includes, but is not limited to, handwriting, typewriting,
 15    printing,  photostating, photographing and every means of recording, including
 16    letters, words, pictures, sounds or symbols or combination  thereof,  and  all
 17    papers, maps, magnetic or paper tapes, photographic films and prints, magnetic
 18    or punched cards, discs, drums or other documents.

Statement of Purpose / Fiscal Impact

                     STATEMENT OF PURPOSE
                           RS 11964

The purpose of this bill is to amend the eminent domain chapter of 
the Idaho Code to require a property owner who may have a business 
damages claim to notify the condemning authority within 120 days 
after the service of the condemning authority’s initial offer to 
purchase. Under present law the owner need only present its business 
damages claim within 90 days after service of the complaint seeking 
condemnation. Since the initial offer to purchase must include 
notice of the right of an eligible owner to make a business damages 
claim, and no condemnation action can be filed until 30 days after 
the initial offer is given, this amendment assures that the business 
owner knows it can provide a notice of such a claim supported with 
its business records before a condemnation action can be filed, and 
encourages both the condemning authority and the property owner to 
enter into good faith negotiations to settle such a claim without 
the necessity of filing the lawsuit. It is important for the 
condemning authority to get such a notice early in the acquisition 
process. The value of the property and improvements to be taken and 
severance damages to the remaining property can be estimated by a 
licensed appraiser for purposes of making the offer to purchase 
whether or not the owner cooperates. However, to make an offer to 
settle business damages the condemning authority must have access to 
the owner’s business records in order to make a good faith offer to 
settle such a claim. The bill assures the confidentiality of the 
business records provided by the owner, and -it also moves the 
burden (and expense) of making the initial offer to settle a claim 
for business damages from the business owner to the condemning 
authority. If this bill passes, it is only if the owner and the 
condemning authority do not agree on property values, severance 
damages and/or business damages, that a condemnation action will be 

                         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.


Name:          Ed Lodge
Organization:  Ada County Highway District
Phone:         342-0777

Name:          Stuart 0. Davis; Executive Director
Organization:  Idaho Association of Highway Districts, Inc.
Phone:         859-9378

Statement of Purpose / Fiscal Impact               S 1401