Print Friendly SENATE BILL NO. 1401 – Eminent domain, damages/records
SENATE BILL NO. 1401
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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
|||| 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
2 RELATING TO EMINENT DOMAIN PROCEEDINGS; AMENDING SECTION 7-711, IDAHO CODE, TO
3 REVISE PROCEDURES AND TIME FRAMES FOR ASSESSMENT OF DAMAGES IN EMINENT
4 DOMAIN PROCEEDINGS, TO PROVIDE THAT BUSINESS RECORDS IN EMINENT DOMAIN
5 PROCEEDINGS ARE CONFIDENTIAL AND TO MAKE TECHNICAL CORRECTIONS; AND AMEND-
6 ING SECTION 9-337, IDAHO CODE, TO PROVIDE THAT A PUBLIC RECORD SHALL NOT
7 INCLUDE A BUSINESS RECORD PURSUANT TO SECTION 7-711, IDAHO CODE, AND TO
8 MAKE TECHNICAL CORRECTIONS.
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-
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-
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
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
2 (1 01) "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 (1 12) "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 (1 23) "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 (1 34) "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
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
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
Name: Ed Lodge
Organization: Ada County Highway District
Name: Stuart 0. Davis; Executive Director
Organization: Idaho Association of Highway Districts, Inc.
Statement of Purpose / Fiscal Impact S 1401