2006 Legislation
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SENATE BILL NO. 1248 – Eminent domain, costs/atty fees

SENATE BILL NO. 1248

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Bill Status



S1248.............................................................by BRANDT
EMINENT DOMAIN - Amends existing law relating to eminent domain proceedings
to delete provisions for discretionary award of costs and fees; and to
provide for the award of reasonable costs and attorney's fees to the
defendant in eminent domain actions if it is determined the amount of just
compensation exceeds the condemner's last prelitigation offer by 10% or
more.
                                                                        
01/11    Senate intro - 1st rdg - to printing
01/12    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1248
                                                                        
                                         BY BRANDT
                                                                        
  1                                        AN ACT
  2    RELATING TO COSTS IN EMINENT  DOMAIN  PROCEEDINGS;  AMENDING  SECTION  7-711A,
  3        IDAHO  CODE,  TO DELETE THE PROVISION FOR DISCRETIONARY AWARD OF COSTS AND
  4        FEES AND TO PROVIDE THAT THE COURT SHALL DETERMINE WHAT COSTS AND FEES ARE
  5        REASONABLE TO AWARD; AMENDING SECTION 7-718, IDAHO CODE,  TO  PROVIDE  FOR
  6        THE AWARD OF REASONABLE COSTS AND ATTORNEY'S FEES TO THE DEFENDANT IN EMI-
  7        NENT  DOMAIN  ACTIONS  IF IT IS DETERMINED THE AMOUNT OF JUST COMPENSATION
  8        EXCEEDS THE CONDEMNER'S LAST PRELITIGATION OFFER BY TEN PERCENT OR MORE.
                                                                        
  9    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 10        SECTION 1.  That Section 7-711A, Idaho Code, be, and the  same  is  hereby
 11    amended to read as follows:
                                                                        
 12        7-711A.  ADVICE  OF  RIGHTS  FORM  --  RIGHTS  WHEN  CONDEMNING  AUTHORITY
 13    ACQUIRES  PROPERTY.  Whenever  a state or local unit of government or a public
 14    utility is beginning negotiations to acquire a parcel of real property in  fee
 15    simple,  the  condemning  authority  shall provide the owner of the property a
 16    form containing a summary of the rights of an owner of property to be acquired
 17    under this chapter. If the condemning authority does not supply the  owner  of
 18    the real property with this form, there will be a presumption that any sale or
 19    contract  entered  into between the condemning authority and the owner was not
 20    voluntary and the condemning  authority  may  be  held  responsible  for  such
 21    relief,  if  any, as the court may determine to be appropriate considering all
 22    of the facts and circumstances. The form shall contain substantially the  fol-
 23    lowing:
 24        (1)  The  (name of entity allowed to use eminent domain proceedings pursu-
 25    ant to chapter 7, title 7, Idaho Code) has the power  under  the  constitution
 26    and the laws of the state of Idaho and the United States to take private prop-
 27    erty  for  public  use.  This  power  is generally referred to as the power of
 28    "eminent domain" or condemnation. The power can only be exercised when:
 29        (a)  The property is needed for a public use authorized by Idaho law;
 30        (b)  The taking of the property is necessary to such use;
 31        (c)  The taking must be located in the manner which will be most  compati-
 32        ble with the greatest public good and the least private injury.
 33        (2)  The  condemning  authority  must negotiate with the property owner in
 34    good faith to purchase the property sought to be taken and/or to  settle  with
 35    the  owner  for  any  other damages which might result to the remainder of the
 36    owner's property.
 37        (3)  The owner of private  property  to  be  acquired  by  the  condemning
 38    authority  is  entitled  to  be  paid  for  any diminution in the value of the
 39    owner's remaining property which is caused by the taking and the  use  of  the
 40    property taken proposed by the condemning authority. This compensation, called
 41    "severance damages," is generally measured by comparing the value of the prop-
 42    erty  before  the taking and the value of the property after the taking.  Dam-
 43    ages are assessed according to Idaho Code.
                                                                        
                                           2
                                                                        
  1        (4)  The value of the property to be taken is to be determined based  upon
  2    the highest and best use of the property.
  3        (5)  If  the  negotiations to purchase the property and settle damages are
  4    unsuccessful, the property owner is entitled to assessment of damages  from  a
  5    court, jury or referee as provided by Idaho law.
  6        (6)  The  owner  has the right to consult with an appraiser of the owner's
  7    choosing at any time during the acquisition process at the  owner's  cost  and
  8    expense.
  9        (7)  The  condemning authority shall deliver to the owner, upon request, a
 10    copy of all appraisal reports concerning the owner's property prepared by  the
 11    condemning  authority.  Once  a complaint for condemnation is filed, the Idaho
 12    rules of civil procedure control the disclosure of appraisals.
 13        (8)  The owner has the right to consult with an attorney at any time  dur-
 14    ing  the  acquisition  process.  In  cases  in  which the condemning authority
 15    condemns property and the owner is able to establish  that  just  compensation
 16    exceeds the last amount timely offered by the condemning authority by ten per-
 17    cent  (10%) or more, the condemning authority may shall be required to pay the
 18    owner's reasonable costs and attorney's fees. The court will  shall  make  the
 19    determination  whether  regarding what costs and fees will be awarded are rea-
 20    sonable to award.
 21        (9)  The form contemplated by this section shall be  deemed  delivered  by
 22    United States certified mail, postage prepaid, addressed to the person or per-
 23    sons  shown in the official records of the county assessor as the owner of the
 24    property. A second copy will be attached to the appraisal at the  time  it  is
 25    delivered to the owner.
 26        (10) If  a  condemning  authority  desires to acquire property pursuant to
 27    this chapter, the condemning authority or any of its agents or employees shall
 28    not give the owner any timing deadline as to when the owner  must  respond  to
 29    the initial offer which is less than thirty (30) days. A violation of the pro-
 30    visions  of  this  subsection shall render any action pursuant to this chapter
 31    null and void.
 32        (11) Nothing in this section changes the assessment of damages  set  forth
 33    in section 7-711, Idaho Code.
                                                                        
 34        SECTION  2.  That  Section  7-718,  Idaho Code, be, and the same is hereby
 35    amended to read as follows:
                                                                        
 36        7-718.  COSTS -- ATTORNEY'S FEES. Costs may be allowed  or  not,  and,  if
 37    allowed,  may  be apportioned between the parties on the same or adverse sides
 38    in the discretion of the court Reasonable costs and attorney's fees  shall  be
 39    awarded  to the defendant in eminent domain actions if the amount of just com-
 40    pensation determined by the court, jury, mediator, arbitrator or commissioners
 41    exceeds the condemner's last prelitigation offer by ten percent (10%) or more.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE

                            RS 15557

Kelo highlighted the need to restore balance in the area of
eminent domain.  One way to address this is by providing that
private property owners in condemnation do not receive less than
just compensation by having to pay costs and attorneys fees to
prove that the condemner's assessment of just compensation was
not fair; this bill allows reimbursement of reasonable costs and
attorneys fees incurred by owners who prevail in condemnation
cases.


                    FISCAL NOTE

It is difficult to assess the fiscal impact as there is wide
variance currently in costs and fees awarded by judges.  This
bill could potential increase costs to condemners, but if so, it
would do so by making property owners whole as the constitution
requires and shifting the burden of the cost of assessing just
compensation off of owners and back onto the condemning agency as
the Constitution requires.  As a practical matter, the bill could
result in cost savings by creating an incentive for government to
assess just compensation fairly and avoid forcing property owners
to incur costs and fees in litigation



Contact:
Name: Senator Skip Brandt          Representative Mike Moyle 
Phone: 332-1326                    332-1000
 

STATEMENT OF PURPOSE/FISCAL NOTE                       S 1248