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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
]]]] 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
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