Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 205 First Substitute (2020GS)

Sponsor

Sen. Cullimore, K. A.

Final action

Governor Signed 3/28/2020

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• modifies certain negotiation and disclosure requirements in an eminent domain proceeding; and
• modifies provisions regarding the valuation of property in certain eminent domain proceedings.

Every vote on this bill

Bill text

EMINENT DOMAIN MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kirk A. Cullimore
House Sponsor: 
Brady Brammer
LONG TITLE
General Description:
This bill modifies provisions related to eminent domain.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ modifies certain negotiation and disclosure requirements in an eminent domain
proceeding; and
▸ modifies provisions regarding the valuation of property in certain eminent domain
proceedings.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
57-12-13
, as enacted by Laws of Utah 1972, Chapter 24
78B-6-505
, as last amended by Laws of Utah 2014, Chapter 59
78B-6-510
, as renumbered and amended by Laws of Utah 2008, Chapter 3
78B-6-511
, as last amended by Laws of Utah 2018, Chapter 371
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
57-12-13
 is amended to read:
57-12-13.
Procedure for acquisition of property.
(1) (a) As used in this section, "fee simple owner" means the owner of a fee simple
interest in real property.
(b) "Fee simple owner" does not include a tenant, lienholder, or other claimant of an
interest in real property.
(2)
 Any agency acquiring real property as to which it has the power to acquire under
the eminent domain or condemnation laws of this state shall comply with the following
policies:
[
(1)
] 
(a)
 Every reasonable effort shall be made to acquire expeditiously real property by
negotiation 
with the fee simple owner
.
[
(2)
] 
(b)
 Real property shall be appraised before the initiation of negotiations, and the
fee simple
 owner or his designated representative shall be given an opportunity to accompany
the appraiser during his inspection of the property.
[
(3)
] 
(c)
 Before the initiation of negotiations for real property, an amount shall be
established which is reasonably believed to be just compensation therefor, 
measured by an
undivided interest in the real property being acquired,
 and such amount shall be offered 
to the
fee simple owner
 for the property. In no event shall such amount be less than the lowest
approved appraisal of the fair market value of the property. Any decrease or increase of the fair
market value of real property prior to the date of valuation caused by the public improvement
for which such property is acquired or by the likelihood that the property would be acquired for
such improvement, other than that due to physical deterioration within the reasonable control
of the 
fee simple
 owner, will be disregarded in determining the compensation for the property.
The owner of the real property to be acquired shall be provided with a written statement of, and
summary of the basis for, the amount established as just compensation. Where appropriate the
just compensation for real property acquired and for damages to remaining real property shall
be separately stated.
[
(4)
] 
(d)
 No owner shall be required to surrender possession of real property acquired
through federal or federally assisted programs before the agreed purchase price is paid or there
is deposited with a court having jurisdiction of condemnation of such property, in accordance
with applicable law, for the benefit of the owner an amount not less than the lowest approved
appraisal of the fair market value of such property or the amount of the award of compensation
in the condemnation proceeding of such property.
[
(5)
] 
(e)
 The construction or development of a public improvement shall be so
scheduled that, to the greatest extent practicable, no person lawfully occupying real property
shall be required to move from a dwelling (assuming a replacement dwelling will be available)
or to move his business or farm operation without at least 90 days' written notice from the date
by which such move is required.
[
(6)
] 
(f)
 If an owner or tenant is permitted to occupy the real property acquired on a
rental basis for a short term or for a period subject to termination on short notice, the amount of
rent required shall not exceed the fair rental value of the property to a short-term occupier.
[
(7)
] 
(g)
 In no event shall the time of condemnation be advanced, on negotiations or
condemnation and the deposit of funds in court for the use of the owner be deferred, or any
other coercive action be taken to compel an agreement on the price to be paid for the property.
[
(8)
] 
(h)
 If an interest in real property is to be acquired by exercise of the power of
eminent domain, formal condemnation proceedings shall be instituted. The acquiring agency
shall not intentionally make it necessary for an owner to institute legal proceedings to prove the
fact of the taking of his real property.
[
(9)
] 
(i)
 If the acquisition of only part of the property would leave [
its
] 
the fee simple
owner with an uneconomic remnant, an offer to acquire the entire property shall be made.
Section 2. Section 
78B-6-505
 is amended to read:
78B-6-505.
Negotiation and disclosure required before filing an eminent domain
action.
(1) As used in this section:
(a) (i) "Claimant" means a person who is a record interest holder of real property
sought to be condemned.
(ii) "Claimant" does not include:
(A) a fee simple owner; or
(B) a utility subject to Section 
72-6-116
.
(b) "Fee simple owner" means the same as that term is defined in Section 
57-12-13
.
[
(1)
] 
(2)
 A political subdivision of the state that seeks to acquire property by eminent
domain or that intends to use eminent domain to acquire property if the property cannot be
acquired in a voluntary transaction shall:
(a) before the governing body, as defined in Subsection 
78B-6-504
(2)(a), of the
political subdivision takes a final vote to approve the filing of an eminent domain action, make
a reasonable effort to negotiate with the [
property
] 
fee simple
 owner for the purchase of the
property; and
(b) except as provided in Subsection [
(4)
] 
(5)
, as early in the negotiation process
described in Subsection [
(1)
] 
(2)
(a) as practicable, but no later than 14 days before the day on
which a final vote is taken to approve the filing of an eminent domain action:
(i) provide the [
property
] 
fee simple
 owner 
and each claimant
 a complete printed copy
of the materials provided on the Office of the Property Rights Ombudsman website in
accordance with Section 
13-43-203
 regarding the acquisition of property for a public purpose
and a property owner's right to just compensation; [
and
]
(ii) provide the [
property
] 
fee simple
 owner a written statement in substantially the
following form:
"Although this letter is provided as part of an attempt to negotiate with you for the sale
of your property or an interest in your property without using the power of eminent domain,
[name of political subdivision] may use that power if it is not able to acquire the property by
negotiation. Because of that potential, the person negotiating on behalf of the entity is required
to provide the following disclosures to you.
1. You are entitled to receive just compensation for your property.
2. You are entitled to an opportunity to negotiate with [name of political subdivision]
over the amount of just compensation before any legal action will be filed.
a. You are entitled to an explanation of how the compensation offered for your
property was calculated.
b. If an appraiser is asked to value your property, you are entitled to accompany the
appraiser during an inspection of the property.
3. You are entitled to discuss this case with the attorneys at the Office of the Property
Rights Ombudsman. The office may be reached at [provide the current contact information for
the Office of the Property Rights Ombudsman].
4. The Office of the Property Rights Ombudsman is a neutral state office staffed by
attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
and protecting their property rights. You are entitled to ask questions and request an
explanation of your legal options.
5. If you have a dispute with [name of political subdivision] over the amount of just
compensation due to you, you are entitled to request free mediation or arbitration of the dispute
from the Office of the Property Rights Ombudsman. As part of mediation or arbitration, you
are entitled to request a free independent valuation of the property.
6. Oral representations or promises made during the negotiation process are not
binding upon the entity seeking to acquire the property by eminent domain."
; and
(iii) provide each claimant a written statement in substantially the following form:
"1. Your interest in property may be impacted by a public improvement project and
you may be entitled to receive just compensation.
2. You are entitled to discuss this case with the attorneys at the Office of the Property
Rights Ombudsman. The office may be reached at [provide the current contact information for
the Office of the Property Rights Ombudsman].
3. The Office of the Property Rights Ombudsman is a neutral state office staffed by
attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
and protecting their property rights. You are entitled to ask questions and request an
explanation of your legal options.
4. If you have a dispute with [name of entity] over the amount of just compensation
due to you, you are entitled to request free mediation or arbitration of the dispute from the
Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled
to request a free independent valuation of the property.
5. Oral representations or promises made during any negotiation are not binding upon
the entity seeking to acquire the property by eminent domain."
[
(2)
] 
(3)
 Except as provided in Subsection [
(4)
] 
(5)
, the entity involved in the
acquisition of property may not bring a legal action to acquire the property under this chapter
until 30 days after the day on which the disclosure and materials required in [
Subsection (1)
]
Subsections (2)
(b)(ii) 
and (iii)
 are provided to the [
property
] 
fee simple
 owner 
and each
claimant
.
[
(3)
] 
(4)
 A person, other than a political subdivision of the state, that seeks to acquire
property by eminent domain or that intends to use eminent domain to acquire property if the
property cannot be acquired in a voluntary transaction shall:
(a) before filing an eminent domain action, make a reasonable effort to negotiate with
the property owner for the purchase of the [
property
] 
fee simple
; and
(b) except as provided in Subsection [
(4)
] 
(5)
, as early in the negotiation process
described in Subsection [
(3)
] 
(4)
(a) as practicable, but no later than 30 days before the day on
which the person files an eminent domain action:
(i) provide the [
property
] 
fee simple
 owner 
and each claimant
 a complete printed copy
of the materials provided on the Office of the Property Rights Ombudsman website in
accordance with Section 
13-43-203
 regarding the acquisition of property for a public purpose
and a property owner's right to just compensation; [
and
]
(ii) provide the [
property
] 
fee simple
 owner a written statement in substantially the
following form:
"Although this letter is provided as part of an attempt to negotiate with you for the sale
of your property or an interest in your property without using the power of eminent domain,
[name of entity] may use that power if it is not able to acquire the property by negotiation. 
Because of that potential, the person negotiating on behalf of the entity is required to provide
the following disclosures to you.
1. You are entitled to receive just compensation for your property.
2. You are entitled to an opportunity to negotiate with [name of entity] over the amount
of just compensation before any legal action will be filed.
a. You are entitled to an explanation of how the compensation offered for your
property was calculated.
b. If an appraiser is asked to value your property, you are entitled to accompany the
appraiser during an inspection of the property.
3. You are entitled to discuss this case with the attorneys at the Office of the Property
Rights Ombudsman. The office may be reached at [provide the current contact information for
the Office of the Property Rights Ombudsman].
4. The Office of the Property Rights Ombudsman is a neutral state office staffed by
attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
and protecting their property rights. You are entitled to ask questions and request an
explanation of your legal options.
5. If you have a dispute with [name of entity] over the amount of just compensation
due to you, you are entitled to request free mediation or arbitration of the dispute from the
Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled
to request a free independent valuation of the property.
6. Oral representations or promises made during the negotiation process are not
binding upon the entity seeking to acquire the property by eminent domain."
; and
(iii) provide each claimant a written statement in substantially the following form:
"1. Your interest in property may be impacted by a public improvement project and
you may be entitled to receive just compensation.
2. You are entitled to discuss this case with the attorneys at the Office of the Property
Rights Ombudsman. The office may be reached at [provide the current contact information for
the Office of the Property Rights Ombudsman].
3. The Office of the Property Rights Ombudsman is a neutral state office staffed by
attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
and protecting their property rights. You are entitled to ask questions and request an
explanation of your legal options.
4. If you have a dispute with [name of entity] over the amount of just compensation
due to you, you are entitled to request free mediation or arbitration of the dispute from the
Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled
to request a free independent valuation of the property.
5. Oral representations or promises made during any negotiation are not binding upon
the entity seeking to acquire the property by eminent domain."
[
(4)
] 
(5)
 The court may, upon a showing of exigent circumstances and for good cause,
shorten the 14-day period described in Subsection [
(1)
] 
(2)
(b) or the 30-day period described in
Subsection [
(2)
] 
(3)
 or [
(3)
] 
(4)
(b).
Section 3. Section 
78B-6-510
 is amended to read:
78B-6-510.
Occupancy of premises pending action -- Deposit paid into court --
Procedure for payment of compensation.
(1) (a) At any time after the commencement of suit, and after giving notice to the
defendant as provided in the Utah Rules of Civil Procedure, the plaintiff may file a motion with
the court requesting an order permitting the plaintiff to:
(i) occupy the premises sought to be condemned pending the action, including appeal;
and
(ii) to do whatever work on the premises that is required.
(b) Except as ordered by the court for good cause shown, a defendant may not be
required to reply to a motion for immediate occupancy before expiration of the time to answer
the complaint.
(2) The court shall:
(a) take proof by affidavit or otherwise of:
(i) the value of the premises sought to be condemned
, measured by an undivided
interest in the premises sought to be condemned
;
(ii) [
the
] 
any severance
 damages that will accrue from the condemnation 
to the
undivided interest in any remaining property not sought to be condemned
; and
(iii) the reasons for requiring a speedy occupation; and
(b) grant or refuse the motion according to the equity of the case and the relative
damages that may accrue to the parties.
(3) (a) If the motion is granted, the court shall enter its order requiring that the plaintiff,
as a condition precedent to occupancy, file with the clerk of the court a sum equal to the
condemning authority's appraised valuation of the property sought to be condemned 
as
described in Subsection (2)(a)(i)
.
(b) That amount shall be for the purposes of the motion only and is not admissible in
evidence on final hearing.
(4) (a) Upon the filing of the petition for immediate occupancy, the court shall fix the
time within which, and the terms upon which, the parties in possession are required to
surrender possession to the plaintiff.
(b) The court may issue orders governing encumbrances, liens, rents, assessments,
insurance, and other charges, if any, as required.
(5) (a) The rights of just compensation for the land taken as authorized by this section
or damaged as a result of that taking vests in the parties entitled to it.
(b) That compensation shall be ascertained and awarded as provided in Section
78B-6-511
.
(c) (i) Except as provided in Subsection (5)(c)(ii), judgment shall include, as part of the
just compensation awarded, interest at the rate of 8% per annum on the amount finally awarded
as the value of the property and damages, from the date of taking actual possession of the
property by the plaintiff or from the date of the order of occupancy, whichever is earlier, to the
date of judgment.
(ii) The court may not award interest on the amount of the judgment that was paid into
court.
(6) (a) Upon the application of the parties in interest, the court shall order that the
money deposited in the court be paid before judgment as an advance on the just compensation
to be awarded in the proceeding.
(b) This advance payment to a defendant shall be considered to be an abandonment by
the defendant of all defenses except a claim for greater compensation.
(c) If the compensation finally awarded exceeds the advance, the court shall enter
judgment against the plaintiff for the amount of the deficiency.
(d) If the advance received by the defendant is greater than the amount finally awarded,
the court shall enter judgment against the defendant for the amount of the excess.
(7) Arbitration of a dispute under Section 
13-43-204
 or 
78B-6-522
 is not a bar or cause
to stay the action for occupancy of premises authorized by this section.
Section 4. Section 
78B-6-511
 is amended to read:
78B-6-511.
Compensation and damages -- How assessed.
(1) The court, jury, or referee shall hear any legal evidence offered by any of the parties
to the proceedings, and determine and assess:
(a) (i) the value of the property sought to be condemned [
and
] 
as a whole, including
 all
improvements pertaining to the [
realty
] 
property
; 
and
(ii) the value of each [
and every separate estate or
] 
separate
 interest in the property;
[
and
]
[
(iii) if it consists of different parcels, the value of each parcel and of each estate or
interest in each shall be separately assessed;
]
(b) if the property sought to be condemned constitutes only a part of a larger parcel, the
damages which will accrue to the portion not sought to be condemned by reason of its
severance from the portion sought to be condemned and the construction of the improvement in
the manner proposed by the plaintiff;
(c) if the property, though no part of it is taken, will be damaged by the construction of
the proposed improvement, and the amount of the damages;
(d) separately, how much the portion not sought to be condemned, and each estate or
interest in it, will be benefitted, if at all, by the construction of the improvement proposed by
the plaintiff , provided that if the benefit is equal to the damages assessed under Subsection
(1)(b), the owner of the parcel shall be allowed no compensation except the value of the
portion taken; but if the benefit is less than the damages assessed, the former shall be deducted
from the latter, and the remainder shall be the only damages allowed in addition to the value of
the portion taken;
(e) if the property sought to be condemned consists of water rights or part of a water
delivery system or both, and the taking will cause present or future damage to or impairment of
the water delivery system not being taken, including impairment of the system's carrying
capacity, an amount to compensate for the damage or impairment; and
(f) if land on which crops are growing at the time of service of summons is sought to
be condemned, the value that those crops would have had after being harvested, taking into
account the expenses that would have been incurred cultivating and harvesting the crops.
(2) In determining the market value of the property before the taking and the market
value of the property after the taking to assess damages in partial takings cases as described in
Subsection (1)(b), the court, jury, or referee:
(a) may consider everything a willing buyer and a willing seller would consider in
determining the market value of the property after the taking; and
(b) may not consider the assessed value on the property tax assessment for the property
unless the court determines that the assessed value on the property tax assessment constitutes
an admission by a party opponent.