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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
property.
02/17 Senate intro - 1st rdg - to printing
02/18 Rpt prt - to Loc Gov
]]]] 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
2 RELATING TO EMINENT DOMAIN; AMENDING SECTION 7-721, IDAHO CODE, TO REMOVE LAN-
3 GUAGE REFERENCING THE STATE AND POLITICAL SUBDIVISIONS OF THE STATE, TO
4 REMOVE LANGUAGE REFERENCING THE PURPOSES OF ACQUISITION OF REAL PROPERTY
5 AND TO MAKE TECHNICAL CORRECTIONS; AND DECLARING AN EMERGENCY.
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
2
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
RS14561C1
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.
Contact:
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
STATEMENT OF PURPOSE / FISCAL IMPACT S 1151