2005 Legislation
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SENATE BILL NO. 1128 – Highway Inverse Condemnation Act

SENATE BILL NO. 1128

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S1128.....................................................by TRANSPORTATION
HIGHWAY INVERSE CONDEMNATION ACT - Adds to existing law to provide for
claims of inverse condemnation by property owners against state and local
governments that have jurisdiction over highway rights-of-way.
                                                                        
02/14    Senate intro - 1st rdg - to printing
02/15    Rpt prt - to Transp

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1128
                                                                        
                                BY TRANSPORTATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO INVERSE CONDEMNATION; AMENDING TITLE 40, IDAHO CODE, BY THE  ADDI-
  3        TION  OF A NEW CHAPTER 25, TITLE 40, IDAHO CODE, TO PROVIDE A SHORT TITLE,
  4        TO DEFINE TERMS, TO RESTRICT CERTAIN CLAIMS AND TO PROVIDE A  TIME  WITHIN
  5        WHICH  CERTAIN ACTIONS SHALL BE COMMENCED OR BE BARRED, TO PROVIDE FOR THE
  6        FILING OF CLAIMS, TO PROVIDE FOR THE TOLLING OF  THE  STATUTE  OF  LIMITA-
  7        TIONS, TO PROVIDE FOR THE CONTENTS OF CLAIMS, TO PROVIDE FOR THE FILING OF
  8        CLAIMS  BY  CERTAIN  RELATIVES, ATTORNEYS OR AGENTS AND TO PROVIDE FOR THE
  9        EFFECT OF INACCURACIES IN CLAIMS, TO PROVIDE  FOR  THE  APPROVAL,  PARTIAL
 10        APPROVAL  OR  DENIAL  OF  CLAIMS, TO PROVIDE FOR SUIT ON DENIED CLAIMS, TO
 11        PROVIDE FOR THE COMPROMISE AND SETTLEMENT OF CLAIMS, TO PROVIDE  FOR  CER-
 12        TAIN  SUITS IN THE EVENT CLAIMS ARE APPROVED OR PARTIALLY APPROVED BUT NOT
 13        SETTLED, TO PROVIDE FOR DAMAGES, TO PROVIDE FOR THE RELATIONSHIP TO  OTHER
 14        LAW,  TO PROVIDE FOR TAX LEVIES TO PAY CLAIMS OR JUDGMENTS, TO PROVIDE FOR
 15        SEVERABILITY; TO PROVIDE AN EFFECTIVE DATE AND TO PROVIDE FOR APPLICATION.
                                                                        
 16    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 17        SECTION 1.  That Title 40, Idaho Code, be, and the same is hereby  amended
 18    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 19    ter 25, Title 40, Idaho Code, and to read as follows:
                                                                        
 20                                      CHAPTER 25
 21                           HIGHWAY INVERSE CONDEMNATION ACT
                                                                        
 22        40-2501.  SHORT TITLE. This act shall be known and may  be  cited  as  the
 23    "Highway Inverse Condemnation Act."
                                                                        
 24        40-2502.  DEFINITIONS. As used in this chapter:
 25        (1)  "Act" shall mean and refer to the highway inverse condemnation act.
 26        (2)  "Claim"  means any written demand to recover money damages by a prop-
 27    erty owner who asserts that his property, or some interest therein,  has  been
 28    invaded  or  appropriated by a governmental entity, without due process of law
 29    and without payment of just compensation.
 30        (3)  "Governmental entity" means and includes the state and its  political
 31    subdivisions as herein defined with jurisdiction over highway and road rights-
 32    of-way.
 33        (4)  "Political  subdivision"  means  any county, city, municipal corpora-
 34    tion, health district, school district, highway  district,  single  countywide
 35    highway  district,  irrigation district, an operating agent of irrigation dis-
 36    tricts whose board consists of directors  of  its  member  districts,  special
 37    improvement district or taxing district, or any other political subdivision or
 38    public  corporation  which  has  the  right to exercise eminent domain and has
 39    jurisdiction over highway and road rights-of-way.
 40        (5)  "State" means the Idaho transportation department.
                                                                        
                                           2
                                                                        
  1        40-2503.  RESTRICTION ON ALLOWANCE OF CLAIM -- COMMENCEMENT OF ACTION. (1)
  2    No claim or action pursuant to the provisions of this  act  shall  be  allowed
  3    against  a  governmental  entity  unless  a claim has first been presented and
  4    filed with the governmental entity within the time limits and according to the
  5    procedures prescribed in this act.
  6        (2)  Any claim against a governmental entity pursuant to the provisions of
  7    this act shall be forever barred unless an action is commenced within four (4)
  8    years after the claim accrued. An action is commenced within  the  meaning  of
  9    this  act when the complaint is filed. A claim shall be deemed to have accrued
 10    at the time it becomes apparent that the invasion or appropriation by the gov-
 11    ernmental entity is of such a degree and kind as to constitute  a  substantial
 12    interference with the claimant's property interest.
                                                                        
 13        40-2504.  FILING  CLAIM  --  TIME. Any claim against a governmental entity
 14    pursuant to the provisions of this act shall be presented to  and  filed  with
 15    the  governmental  entity,  as herein provided, within four (4) years from the
 16    date the claim accrues.
 17        (1)  A claim against the state shall be presented to and  filed  with  the
 18    secretary of state.
 19        (2)  A  claim  against  a  political subdivision shall be presented to and
 20    filed with the clerk or secretary of the political subdivision.
                                                                        
 21        40-2505.  TOLLING OF LIMITATION PERIOD DURING  PENDENCY  OF  CLAIM  BEFORE
 22    GOVERNMENTAL ENTITY. The statute of limitations, pursuant to the provisions of
 23    this  act,  shall  be  tolled  and not be deemed to run during the time that a
 24    claim is pending before a governmental entity.
                                                                        
 25        40-2506.  CONTENT OF CLAIM -- FILING BY AGENT OR  ATTORNEY  --  EFFECT  OF
 26    INACCURACIES.  A claim presented to and filed with a governmental entity shall
 27    accurately describe the property owner's property, or some  interest  therein,
 28    which  is  claimed  to  have  been invaded or appropriated, state the time and
 29    place and a description of the invasion or appropriation of  the  property  or
 30    property interest that occurred,  state the names of all property owners known
 31    to  be  involved, and set forth the amount of damages claimed. If the claimant
 32    is incapacitated from presenting and filing his claim  within  the  time  pre-
 33    scribed, or if the claimant is a minor, or if the claimant is a nonresident of
 34    the  state and is absent during the time within which his claim is required to
 35    be filed, the claim may be presented and filed on behalf of  the  claimant  by
 36    any relative, attorney or agent representing the claimant. A claim filed under
 37    the  provisions  of  this section shall not be held invalid or insufficient by
 38    reason of an inaccuracy unless it is shown that the governmental entity was in
 39    fact misled to its injury thereby.
                                                                        
 40        40-2507.  TIME FOR APPROVAL, PARTIAL APPROVAL OR DENIAL OF CLAIM -- EFFECT
 41    OF FAILURE TO ACT. Within ninety (90) days after a claim pursuant to the  pro-
 42    visions  of  this  act  has been filed, the governmental entity shall approve,
 43    partially approve, or deny that part of the  claim  asserting  the  claimant's
 44    property, or some interest therein, was invaded or appropriated by the govern-
 45    mental  entity,  and  shall send written notification of its approval, partial
 46    approval, or denial to the claimant. A claim shall  be  deemed  to  have  been
 47    denied  if  at  the  end of the ninety (90) day period the governmental entity
 48    takes no action.
                                                                        
 49        40-2508.  SUIT ON DENIED CLAIM. If the claim is denied, or deemed  denied,
 50    the  provisions  of  this  act  do not then prohibit a claimant from filing an
                                                                        
                                           3
                                                                        
  1    action in the district court against the governmental entity for inverse  con-
  2    demnation.
                                                                        
  3        40-2509.  COMPROMISE  AND SETTLEMENT BY GOVERNMENTAL ENTITY. If a claim is
  4    approved, or partially approved, by the governmental entity, the  governmental
  5    entity  shall  have an additional ninety (90) day period immediately following
  6    the approval to pursue compromise and settlement of the claim with the  claim-
  7    ant.  A  claim  shall  be deemed to have not been settled if at the end of the
  8    ninety (90) day period a settlement has not been reached.
                                                                        
  9        40-2510.  SUIT ON APPROVED BUT UNSETTLED CLAIM. If a claim is approved, or
 10    partially approved, by the governmental entity but not settled as provided  by
 11    section 40-2509, Idaho Code, the provisions of this act do not then prohibit a
 12    claimant  from  filing  an  action  in district court against the governmental
 13    entity for inverse condemnation and do  not  then  prohibit  the  governmental
 14    entity from filing an action in district court for eminent domain.
                                                                        
 15        40-2511.  DAMAGES  -- DATE OF ACCRUAL. For purposes of assessing compensa-
 16    tion damages for a claim, damages shall be deemed to have been incurred on the
 17    date the claim accrued and shall draw lawful interest from said  date  at  the
 18    rate for money due on a judgment for each year and/or partial year included.
                                                                        
 19        40-2512.  RELATIONSHIP  TO  OTHER  LAW. (1) No provision of this act shall
 20    affect the application of the provisions  of  sections  7-701  through  7-721,
 21    Idaho Code, to an action by a governmental entity for eminent domain.
 22        (2)  The  provisions and requirements of the Idaho tort claims act, as set
 23    forth in chapter 9, title 6, Idaho Code, shall not be affected by  the  provi-
 24    sions of this act.
                                                                        
 25        40-2513.  TAX  LEVY  TO  PAY  CLAIM OR JUDGMENT. Notwithstanding any other
 26    provision of law to the contrary, and in the event there are no  funds  avail-
 27    able, a political subdivision, that is authorized to levy and collect property
 28    tax,  shall levy and collect a property tax, at the earliest time possible, in
 29    an amount necessary to pay a claim or a judgment from a claim made  under  the
 30    provisions of this act where the political subdivision has failed to provide a
 31    comprehensive liability plan to cover risk of claims made under the provisions
 32    of this act.
                                                                        
 33        40-2514.  SEVERABILITY.  The provisions of this act are hereby declared to
 34    be severable, and if any provision of this act or the application of such pro-
 35    vision to any person or circumstance is declared invalid for any reason,  such
 36    declaration  shall  not  affect the validity of the remaining portions of this
 37    act.
                                                                        
 38        SECTION 2.  This act shall be in full force and effect on and  after  July
 39    1, 2005, and shall apply to any claim which accrues on or after July 1, 2005.

Statement of Purpose / Fiscal Impact


                                  STATEMENT OF PURPOSE

                                        RS 14914


This legislation is intended to reduce the need for litigation and speed the process of resolution of
claims by property owners against governmental entities for the taking of a property interest. It
provides that such claims are first filed with the government entity [in a process similar to how
tort claims against government entities are now filed] who must then, in a 90 day period,
determine whether it agrees that an interest in property was taken has occurred. If the government
entity determines it has not taken a property interest the claimant may then file an action in a
court of law for inverse condemnation. If the government entity determines it has taken a
property interest it shall then have an additional 90 days to try and settle the taking claim. If the
claim is not then resolved the claimant may bring and inverse condemnation action for damages
or the government entity may bring an eminent domain action in a court of law.



                                      FISCAL IMPACT


This bill will have no fiscal impact to the general fund.




Contact: 

Name:     Stuart 0. Davis, Executive Director,
          Idaho Association of Highway Districts
Phone:    (208) 345-5176



STATEMENT OF PURPOSE/FISCAL IMPACT                                            S 1128