2005 Legislation
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SENATE BILL NO. 1151 – Eminent domain/property acquisition


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Bill Status

S1151................................................by JUDICIARY AND RULES
EMINENT DOMAIN - Amends existing law relating to eminent domain to remove
language referencing the state and political subdivisions of the state and
to remove language referencing the purposes of acquisition of real
02/17    Senate intro - 1st rdg - to printing
02/18    Rpt prt - to Loc Gov

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                       IN THE SENATE
                                    SENATE BILL NO. 1151
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  6    Be It Enacted by the Legislature of the State of Idaho:
  7        SECTION 1.  That Section 7-721, Idaho Code, be, and  the  same  is  hereby
  8    amended to read as follows:
  9        7-721.  POSSESSION BY PLAINTIFF PENDING TRIAL. In any proceeding under the
 10    provisions of this chapter whereby the state of Idaho, or any board, agency or
 11    political  subdivision thereof, or municipality therein, is seeking to acquire
 12    for the acquisition of real property, necessary for the construction,  mainte-
 13    nance,  alteration,  and  repair  of  freeways,  expressways, highways, roads,
 14    streets, airports, and any necessary structures  or  appurtenances  needed  in
 15    connection therewith, or the construction and extension of culinary water sys-
 16    tems,  sewers  and  sewerage systems, including sewerage treatment facilities,
 17    the plaintiff may take possession of and use such property at any  time  after
 18    just compensation has been judicially determined and payment thereof made into
 19    court.  Judicial  determination  shall  be satisfied by the following require-
 20    ments:
 21        (1)  At any time after an action for condemnation has been commenced under
 22    the provisions of this chapter and after the defendant has made an appearance,
 23    the plaintiff may file a motion asking that said plaintiff be placed in lawful
 24    possession of and have the use of said property and  the  court  shall  fix  a
 25    date, not less than ten (10) or more than twenty (20) days after the filing of
 26    such  motion, for the hearing thereon and shall require due notice to be given
 27    to each party to the proceedings whose  interest  would  be  affected  by  the
 28    requested  taking.  Notice  herein  shall be given as provided in rule 5(a) or
 29    5(b), as the case may be, of the Idaho rules of civil procedure.
 30        If the defendant has not appeared, but is not in  default,  plaintiff  may
 31    proceed  as  herein provided twenty (20) days after the action shall have been
 32    commenced by serving the motion and notice of the hearing in the  same  manner
 33    as required for service of summons.
 34        (2)  At  the hearing the court shall first determine whether or not plain-
 35    tiff (a) has the right of eminent domain, (b) whether or not the use to  which
 36    the  property  is to be applied is a use authorized by law, (c) whether or not
 37    the taking is necessary to such use, and (d)  whether  or  not  plaintiff  has
 38    sought,  in good faith, to purchase the lands sought to be taken and the court
 39    shall enter an order thereon which shall be a final order as to  these  issues
 40    and  an  appeal may be taken therefrom; provided, however, no appeal therefrom
 41    shall stay further proceedings.
 42        (3)  If the matters in the preceding subsection are determined in favor of
 43    the plaintiff the court shall hear the issues raised by the plaintiff's motion
  1    for taking and shall receive such evidence as it may  consider  necessary  and
  2    proper  for a finding of just compensation, but the court may limit the number
  3    of witnesses presented by any party to the action, and, in its discretion, may
  4    appoint a disinterested appraiser as an agent of the  court  to  evaluate  the
  5    property  to  which  the  motion  relates and to report his conclusions to the
  6    court within ten (10) days from the date of his  appointment;  and  the  court
  7    shall fix his fee which shall be paid by the plaintiff. The court shall within
  8    five  (5) days after the hearing, or if it shall appoint an appraiser,  within
  9    five (5) days after receiving his report, make an order  of  determination  of
 10    just compensation.
 11        (4)  Neither the order of the court determining just compensation, nor the
 12    amount  of the deposit, nor the report of the appraiser appointed by the court
 13    shall be admissible in evidence in further proceedings under this section.
 14        (5)  After the court has entered its order of determination of the  amount
 15    of just compensation, the plaintiff may deposit such amount with the court and
 16    the  court  shall thereupon enter an order fixing a date from which the plain-
 17    tiff shall be entitled to take possession of and use the property. After  such
 18    deposit and order have been made the cause shall proceed to trial in the regu-
 19    lar manner.
 20        (6)  Any  party  defendant may file with the court an application to with-
 21    draw his share of the amount deposited by the plaintiff. Such application  may
 22    be  filed  at any time after the court has entered its order placing plaintiff
 23    in possession and use of the property. If there be only one (1)  defendant  in
 24    the  action,  the court shall authorize the requested withdrawal of funds, but
 25    if there shall be more than one (1) defendant the court shall fix a  date  for
 26    hearing  on  the  application to withdraw funds and shall require notice to be
 27    given to each party whose interest would be affected by such withdrawal. After
 28    hearing the court shall determine the share of the funds  deposited  to  which
 29    the  defendants  or  any of them are lawfully entitled and shall authorize the
 30    withdrawal requested or such part thereof as shall be proper.
 31        (7)  If more than eighty per centum percent (80%) of the amount  deposited
 32    is  withdrawn,  the  defendant  or  defendants  making the withdrawal shall be
 33    required to make a written undertaking, executed by two (2) or more sufficient
 34    sureties, approved by the court, to the effect that  they  are  bound  to  the
 35    plaintiff  for  the  payment  to  it of such sum by which the amount withdrawn
 36    shall exceed the amount of the award finally  determined  upon  trial  of  the
 37    cause.
 38        (8)  Upon  trial  of  the cause the court shall enter judgment against the
 39    plaintiff for the amount of the award, and the  plaintiff  shall  pay  to  the
 40    defendant or defendants the amount, if any, by which such judgment exceeds the
 41    amount  previously deposited; provided that if the award and judgment shall be
 42    less than the amount withdrawn under  subsection  (6)  of  this  section,  the
 43    defendant  or defendants shall refund the difference to the clerk of the court
 44    and if such refund is not made within thirty (30) days the court  shall  enter
 45    judgment  in  favor  of the plaintiff and against such defendant or defendants
 46    for the amount of the difference.
 47        (9)  After plaintiff has deposited with the court the amount determined by
 48    the court to be just compensation, no interest shall accrue on the  amount  so
 49    deposited.
 50        SECTION  2.  An  emergency  existing  therefor,  which emergency is hereby
 51    declared to exist, this act shall be in full force and effect on and after its
 52    passage and approval.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE


The purpose of this revision to Idaho Code Section 7-721 is to
clarify that the "Quick Take" procedure, which allows condemning
authorities to take possession of private property prior to
trial, is available to all condemning authorities.  Currently,
the statute contains a list of condemnors and projects which is
not all-inclusive; therefore there are some condemnors which
cannot take possession of property being condemned by eminent
domain until after a Commissioner's Hearing and a trial on the
issue of valuation.  The result is a delay in public projects and
additional costs to private property owners. This revision to the
statute will clarify that any entity with the power to take
private property via eminent domain may also obtain immediate
possession of the property upon deposit with the Court of "just
compensation."  The property owner and the condemner can then
resolve the valuation/just compensation issue without the public
project being delayed.  

                          FISCAL IMPACT

No fiscal impact to the general fund.  There may be a small cost
savings by avoidance of public project delays.                   


Name:  Senator Gerry Sweet
Phone: 332-1355
Name:  Senator Mike Jorgenson
Phone: 332-1346
Name:  Representative Cliff Bayer
Phone: 332-1000
Name:  Heather Cunningham
Phone: 342-3658