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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
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature Second Regular Session - 2002IN 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 26plaintiffcondemning 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 theplaintiffcondemning 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,mustsubmit a written business damage41claim to the plaintiffnotify the condemning authority in writing within 42ninety (90)one hundred twenty (120) days after service of thesummons and43complaint for condemnationcondemning authority's initial offer letter. 2 1 Theplaintiff'scondemning authority's initial offer letter or accompany- 2 ing information must expressly inform thedefendantbusiness owner of its 3 rights under this subsection, and must further inform thedefendantbusi- 4 ness owner of its right to consult with an attorney. 5 (ii)The defendant'sWithin such one hundred twenty (120) day period the 6 business owner's written notice of business damages claim must be either 7 sent to theplaintiffcondemning 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 withinninety (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 14defendant'sbusiness owner's claim for business damages in any condemna- 15 tion proceeding. 16 (iii) The notice of business damages claim must includean explanation of17the nature, extent, and monetary amount of such claimed damages and must18be prepared by the owner, a certified public accountant, or a business19damage expert familiar with the nature of the operations of the20defendant's business. The defendant shall also provide the plaintiff with21copies of the defendant's business records that substantiate the good22faith offer to settle the business damage claim. The business damage claim23must be clearly segregated from the claim for property damages pursuant to24subsections (1) and (2)(a) of section 7-711, Idaho Codecopies 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 35relied upon by the business owner that substantiate the business damage36claimas the condemning authority may reasonably request as necessary to 37 determine the extent of any business damages. 38 (v) Theplaintiff'scondemning 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-42ness damages prior to the date of filing of the motion that initiates the43proceeding under that sectionnor 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 theplaintiffcon- 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. 3 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 4 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 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 required. 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 CONTACTS: 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