House File 2454 - Introduced HOUSE FILE BY KAUFMANN, TYMESON, and GRASSLEY Passed House, Date Passed Senate, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to eminent domain authority and condemnation 2 procedures and including effective date and applicability date 3 provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 5685YH 82 6 sc/rj/8 PAG LIN 1 1 Section 1. Section 6A.22, subsection 2, paragraph c, 1 2 subparagraph (1), Code 2007, is amended to read as follows: 1 3 (1) If private property is to be condemned for development 1 4 or creation of a lake, only that number of acres justified as 1 5 reasonable and necessary for a surface drinking water source, 1 6 and not otherwise acquired, may be condemned.In addition1 7 Prior to making a determination that such lake development or 1 8 creation is reasonable and necessary, the acquiring agency 1 9 shallconduct a review ofdemonstrate by clear and convincing 1 10 evidence that no other prudent and feasiblealternatives to1 11 alternative for provision of a drinking water sourceprior to 1 12 making a determination that such lake development or creation 1 13 is reasonable and necessaryexists. Development or creation 1 14 of a lake as a surface drinking water source includes all of 1 15 the following: 1 16 (a) Construction of the dam, including sites for suitable 1 17 borrow material and the auxiliary spillway. 1 18 (b) The water supply pool. 1 19 (c) The sediment pool. 1 20 (d) The flood control pool. 1 21 (e) The floodwater retarding pool. 1 22 (f) The surrounding area upstream of the dam no higher in 1 23 elevation than the top of the dam's elevation. 1 24 (g) The appropriate setback distance required by state or 1 25 federal laws and regulations to protect drinking water supply. 1 26 For purposes of this subparagraph (1), "number of acres 1 27 justified as reasonable and necessary for a surface drinking 1 28 water source" means according to guidelines of the United 1 29 States natural resource conservation service and according to 1 30 analyses of surface drinking water capacity needs conducted by 1 31 one or more registered professional engineers. However, any 1 32 guidelines or analyses related to future water capacity needs 1 33 or water capacity needs in time of drought shall be based on 1 34 the current rate of drinking water usage in the area to be 1 35 served by the surface drinking water source. 2 1 In making determinations required under this subparagraph 2 2 (1), any reviews or analyses conducted by an engineer shall be 2 3 conducted by a registered professional engineer selected by a 2 4 committee of private landowners affected by the proposed 2 5 condemnation action. The acquiring agency shall be 2 6 responsible for paying the fees and expenses of an engineer 2 7 whose services are retained pursuant to this subparagraph (1). 2 8 Sec. 2. Section 6A.24, subsection 3, Code 2007, is amended 2 9 to read as follows: 2 10 3. For any action brought under this section, the burden 2 11 of proof shall be on the acquiring agency to prove bya 2 12 preponderance of theclear and convincing evidence that the 2 13 finding of public use, public purpose, or public improvement 2 14 meets the definition of those terms. If a property owner or a 2 15 contract purchaser of record or a tenant occupying the 2 16 property under a recorded lease prevails in an action brought 2 17 under this section, the acquiring agency shall be required to 2 18 pay the costs, including reasonable attorney fees, of the 2 19 adverse party. 2 20 Sec. 3. Section 6B.54, subsection 10, Code 2007, is 2 21 amended by adding the following new paragraph: 2 22 NEW PARAGRAPH. c. Reasonable attorney fees and reasonable 2 23 costs, including expert witness fees and fees relating to 2 24 appraisal of the property, not to exceed one hundred thousand 2 25 dollars. 2 26 Sec. 4. Section 316.4, subsection 1, Code 2007, is amended 2 27 to read as follows: 2 28 1. If a program or project undertaken by a displacing 2 29 agency will result in the displacement of a person, the 2 30 displacing agency shall make a payment to the displaced 2 31 person, upon proper application as approved by the displacing 2 32 agency, for actual reasonable and necessary expenses incurred 2 33 in moving the person, the person's family, business, farm 2 34 operation, or other personal property subject to rules and 2 35 limits established by the department. The payment may also 3 1 provide for actual direct losses of tangible personal 3 2 property, purchase of substitute personal property, business 3 3 reestablishment expenses, storage expenses, and expenses 3 4 incurred in searching for a replacement business or farm. If 3 5 relocation of a business or farm operation is not economically 3 6 feasible, the displaced person may also apply for payment of 3 7 the loss of existing business relationships because of the 3 8 inability to relocate the business or farm operation to a 3 9 location similar in economic advantage to the location from 3 10 which the business or farm operation was moved. 3 11 Sec. 5. Section 364.4, subsection 1, paragraph a, 3 12 unnumbered paragraph 1, Code 2007, is amended to read as 3 13 follows: 3 14 Acquire, hold, and dispose of property outside the city in 3 15 the same manner as within. However, the power of a city to 3 16 acquire property outside the city does not include the power 3 17 to acquire property outside the city by eminent domain, except 3 18 if viable alternatives do not exist within the city and the 3 19 acquisition of the property is necessary for the following, 3 20 subject to the provisions of chapters 6A and 6B: 3 21 Sec. 6. Section 403.7, subsection 1, unnumbered paragraph 3 22 1, Code 2007, is amended to read as follows: 3 23 A municipality shall have the right to acquire by 3 24 condemnation any interest in real property, including a fee 3 25 simple title thereto, which it may deem necessary for or in 3 26 connection with an urban renewal project under this chapter, 3 27 subject to the limitations on eminent domain authority in 3 28chapterchapters 6A and 6B. However, a municipality shall not 3 29 condemn agricultural land included within an economic 3 30 development area for any use unless the owner of the 3 31 agricultural land consents to condemnation or unlessthe 3 32 municipality determines that the land is necessary or useful3 33 viable alternatives to the condemnation of agricultural land 3 34 do not exist and the acquisition of the property is necessary 3 35 for any of the following: 4 1 Sec. 7. EFFECTIVE DATE. This Act, being deemed of 4 2 immediate importance, takes effect upon enactment and applies 4 3 to projects or condemnation proceedings pending or commenced 4 4 on or after that date. 4 5 EXPLANATION 4 6 This bill makes various changes relating to eminent domain 4 7 authority and the procedure by which eminent domain authority 4 8 is exercised (condemnation). 4 9 The bill provides that, prior to making a determination 4 10 that creation or development of a lake is reasonable and 4 11 necessary, an acquiring agency must demonstrate by clear and 4 12 convincing evidence that no other prudent and feasible 4 13 alternative for provision of a drinking water source exists. 4 14 The bill also provides that when determining the number of 4 15 acres necessary for a surface drinking water source, any 4 16 guidelines or analyses related to future water capacity needs 4 17 or water capacity needs in time of drought shall be based on 4 18 the current rate of drinking water usage in the area to be 4 19 served by the surface drinking water source. The bill further 4 20 provides that the analyses and reviews shall be conducted by a 4 21 registered professional engineer selected by a committee of 4 22 private landowners affected by the proposed condemnation 4 23 action, and the acquiring agency shall pay for the services of 4 24 the engineer. 4 25 The bill changes the standard of proof from a preponderance 4 26 of the evidence to clear and convincing evidence for an action 4 27 brought in district court challenging the exercise of eminent 4 28 domain authority or contesting condemnation proceedings. 4 29 The bill adds reasonable attorney fees and reasonable 4 30 costs, up to $100,000, to the list of expenses reimbursable by 4 31 an acquiring agency to a property owner. 4 32 The bill provides that if relocation of a business or farm 4 33 operation is not economically feasible, the displaced person 4 34 may apply for payment of the loss of existing business 4 35 relationships because of the inability to relocate the 5 1 business or farm operation to a location similar in economic 5 2 advantage to the location from which the business or farm 5 3 operation was moved. 5 4 The bill adds a condition to the circumstances in which a 5 5 city may condemn land outside the city limits to provide that 5 6 condemnation may occur if viable alternatives do not exist 5 7 within the city and the acquisition of the land is necessary 5 8 for the purposes stated in current law. The bill also amends 5 9 urban renewal law relating to the circumstances in which a 5 10 municipality may condemn agricultural land within an economic 5 11 development urban renewal area to provide that condemnation 5 12 may occur if viable alternatives do not exist and the 5 13 acquisition of the land is necessary for the purposes stated 5 14 in current law. 5 15 The bill takes effect upon enactment and applies to 5 16 projects or condemnation proceedings pending or commenced on 5 17 or after that date. 5 18 LSB 5685YH 82 5 19 sc/rj/8.1