2006 Legislation
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SENATE BILL NO. 1247 – Eminent domain, purposes deleted


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Bill Status

S1247.............................................................by BRANDT
EMINENT DOMAIN - Amends existing law relating to eminent domain to delete
language referencing state and political subdivisions of the state; and to
delete language referencing purposes of acquisition of real property.
01/11    Senate intro - 1st rdg - to printing
01/12    Rpt prt - to St Aff
02/06    Rpt out - rec d/p - to 2nd rdg
02/07    2nd rdg - to 3rd rdg
02/14    3rd rdg - PASSED - 34-0-1
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burtenshaw,
      Cameron, Coiner, Compton, Corder, Darrington, Davis, Fulcher, Gannon,
      Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
      Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
      Schroeder, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Burkett
    Floor Sponsor - Brandt
    Title apvd - to House
02/15    House intro - 1st rdg - Held at Desk
03/23    Ref'd to St Aff
03/27    Rpt out - rec d/p - to 2nd rdg
03/28    2nd rdg - to 3rd rdg
04/11    3rd rdg - PASSED - 67-0-3
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Boe, Brackett, Bradford, Cannon,
      Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest,
      Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez,
      Mathews, McGeachin, McKague, Miller, Moyle, Nielsen, Nonini,
      Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche,
      Rydalch, Sali, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley,
      Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Wills,
      Wood, Mr. Speaker
      NAYS -- None
      Absent and excused -- Bolz, Mitchell, Trail
    Floor Sponsor - Moyle
    Title apvd - to Senate
04/11    To enrol - Rpt enrol - Pres signed - Sp signed
    To Governor
04/14    Governor signed
         Session Law Chapter 451
         Effective: 04/14/06

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                       IN THE SENATE
                                    SENATE BILL NO. 1247
                                         BY BRANDT
  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
  8    within five (5) days after the hearing, or if it shall appoint  an  appraiser,
  9    within  five  (5) days after receiving his report, make an order of determina-
 10    tion of 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

                            RS 15558

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
statues contains a list of condemners and projects which is not
all-inclusive; therefore there are some condemners 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. Through eminent domain this
allows 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 NOTE

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


Name:     Representative Mike Moyle 
Phone:    332-1000

STATEMENT OF PURPOSE/FISCAL NOTE                         S 1247