House File 2351 - Introduced
HOUSE FILE
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO HF 2120)
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to government authority, including eminent domain
2 authority and condemnation procedures, essential county
3 purposes, and other properly related matters, and including
4 effective and applicability provisions.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
6 TLSB 5097HV 81
7 sc/cf/24
PAG LIN
1 1 Section 1. Section 6A.4, subsection 2, unnumbered
1 2 paragraph 1, Code 2005, is amended to read as follows:
1 3 Upon the owner or lessee of lands, which have no public or
1 4 private way to the lands, for the purpose of providing a
1 5 public way, not exceeding forty feet in width, which will
1 6 connect with an existing public road. The condemned public
1 7 way shall not exceed forty feet in width when such lands are
1 8 agricultural or have a single residence located on them. For
1 9 all other uses, the condemned public way shall not exceed
1 10 sixty=six feet. The condemned public way shall be located on
1 11 a division, subdivision or "forty" line, or immediately
1 12 adjacent thereto, and along the line which is the nearest
1 13 feasible route to an existing public road, or along a route
1 14 established for a period of ten years or more by an easement
1 15 of record or by use and travel to and from the property by the
1 16 owner and the general public. The public way shall not
1 17 interfere with buildings, orchards, or cemeteries. When
1 18 passing through enclosed lands, the public way shall be fenced
1 19 on both sides by the condemner upon request of the owner of
1 20 the condemned land. The condemner or the condemner's
1 21 assignee, shall provide easement for access to the owner of
1 22 property severed by the condemnation. The public way shall be
1 23 maintained by the condemner or the condemner's assignee, and
1 24 shall not be considered any part of the primary or secondary
1 25 road systems.
1 26 Sec. 2. Section 6A.21, subsection 2, Code 2005, is amended
1 27 to read as follows:
1 28 2. The limitation on the definition of public use, public
1 29 purpose, or public improvement does not apply to a slum area
1 30 or blighted area as defined in section 403.17, or to
1 31 agricultural land acquired for industry as that term is
1 32 defined in section 260E.2, provided in section 6A.22 or to the
1 33 establishment, relocation, or improvement of a road pursuant
1 34 to chapter 306, or to the establishment of a railway under the
1 35 supervision of the department of transportation as provided in
2 1 section 327C.2, or to an airport as defined in section 328.1,
2 2 or to land acquired in order to replace or mitigate land used
2 3 in a road project when federal law requires replacement or
2 4 mitigation. This limitation also does not apply to utilities
2 5 or persons under the jurisdiction of the Iowa utilities board
2 6 in the department of commerce or to any other utility
2 7 conferred the right by statute to condemn private property or
2 8 to otherwise exercise the power of eminent domain.
2 9 Sec. 3. NEW SECTION. 6A.22 ADDITIONAL LIMITATIONS ON
2 10 EXERCISE OF POWER == DEFINITIONS.
2 11 1. In addition to the limitations in section 6A.21, the
2 12 authority of an acquiring agency to condemn any private
2 13 property through eminent domain may only be exercised for a
2 14 public purpose, public use, or public improvement. However,
2 15 if the owner of the property consents to the condemnation, the
2 16 property may be condemned for any purpose.
2 17 2. a. "Public use", "public purpose", or "public
2 18 improvement" means one or more of the following:
2 19 (1) The possession, occupation, and enjoyment of property
2 20 by the general public or governmental entities.
2 21 (2) The acquisition of any interest in property necessary
2 22 to the function of a public or private utility, common
2 23 carrier, or airport or airport system.
2 24 (3) Private use that is incidental to the public use of
2 25 the property, provided that no property shall be condemned
2 26 solely for the purpose of facilitating such incidental private
2 27 use.
2 28 (4) The acquisition of property pursuant to chapter 455H.
2 29 (5) The acquisition of property in that portion of an
2 30 urban renewal area designated as a slum or blighted area if
2 31 each parcel, or any improvements thereon, for which
2 32 condemnation is sought is determined by the governing body of
2 33 the municipality to be in a slum or blighted condition.
2 34 In any action contesting a determination made pursuant to
2 35 this subparagraph (5), the burden of proof is on the
3 1 municipality to prove by clear and convincing evidence that it
3 2 did not abuse its discretion in making such a determination.
3 3 For purposes of this subparagraph (5), "blighted condition"
3 4 means the presence of a substantial number of slum or
3 5 deteriorated structures; faulty lot layout in relation to
3 6 size, adequacy, or accessibility; insanitary or unsafe
3 7 conditions; excessive and uncorrected deterioration of site or
3 8 other improvements; tax or special assessment delinquency
3 9 exceeding the fair value of the land; defective or unusual
3 10 conditions of title; or the existence of conditions which
3 11 endanger life or property by fire and other causes; or the
3 12 existence of conditions which retard the provision of housing
3 13 accommodations for low or moderate income families, or is a
3 14 menace to the public health and safety in its present
3 15 condition and use.
3 16 For purposes of this subparagraph (5), "slum condition"
3 17 means a condition conducive to ill health, transmission of
3 18 disease, infant mortality, juvenile delinquency, or crime, or
3 19 detrimental to the public health and safety due to a
3 20 predominance of buildings or improvements, whether residential
3 21 or nonresidential, by reason of the following: by reason of
3 22 dilapidation, deterioration that is excessive and uncorrected,
3 23 age or obsolescence; by reason of inadequate provision for
3 24 ventilation, light, air, sanitation, or open spaces; by reason
3 25 of high density of population and overcrowding; by reason of
3 26 the existence of conditions which endanger life or property by
3 27 fire and other causes; or by reason of any combination of such
3 28 factors.
3 29 b. Except as specifically included in the definition in
3 30 paragraph "a", "public use" or "public purpose" or "public
3 31 improvement" does not mean economic development activities
3 32 resulting in increased tax revenues, increased employment
3 33 opportunities, privately owned or privately funded housing and
3 34 residential development, privately owned or privately funded
3 35 commercial or industrial development, the lease of publicly
4 1 owned property to a private party, or recreational development
4 2 paid for primarily with private funds.
4 3 c. Notwithstanding paragraph "a":
4 4 (1) Private property shall not be condemned for
4 5 development or creation of a lake as a surface drinking water
4 6 source or for recreational use, for construction of a
4 7 landfill, or for construction of sewer treatment facilities,
4 8 unless the acquiring agency demonstrates that no other prudent
4 9 and feasible alternative exists to accomplish its purpose.
4 10 (2) Private property shall not be condemned to develop or
4 11 create a park or recreational facility unless the acquiring
4 12 agency demonstrates that a good faith effort has been made to
4 13 purchase a prudent and feasible location from a willing seller
4 14 for the park or facility.
4 15 3. In any action contesting whether eminent domain
4 16 authority is being exercised for a public use, public purpose,
4 17 or public improvement, the burden of proof is on the acquiring
4 18 agency to prove by clear and convincing evidence that the
4 19 proposed use of the property meets the definition of public
4 20 use, public purpose, or public improvement in subsection 2 and
4 21 that there is no prudent and feasible alternative to
4 22 condemnation of the property.
4 23 Sec. 4. Section 6B.2A, subsection 1, unnumbered paragraph
4 24 1, Code 2005, is amended to read as follows:
4 25 An acquiring agency shall provide written notice of a
4 26 public hearing to each owner and any contract purchaser of
4 27 record of agricultural land private property that may be the
4 28 subject of condemnation. The authority under this chapter is
4 29 not conferred and condemnation proceedings shall not begin
4 30 unless a good faith effort is made to mail and publish the
4 31 notice as provided in this section on the owner and any
4 32 contract purchaser of record of the property subject to
4 33 condemnation. The notice shall be mailed by ordinary mail,
4 34 not less than thirty days before the date the hearing is held,
4 35 to the owner and any contract purchaser of record of each
5 1 property or property interest at the owner's and contract
5 2 purchaser's last known address as shown in the records of the
5 3 county auditor not less than seven days nor more than fourteen
5 4 days prior to the date of mailing. A change in ownership of
5 5 any such property which is not reflected in the records of the
5 6 county auditor during the period those records are searched as
5 7 above provided shall not affect the validity of the notice or
5 8 any condemnation proceeding commenced on the basis of such
5 9 notice. The notice shall be given and the public hearing held
5 10 before adoption of the ordinance, resolution, motion, or other
5 11 declaration of intent to fund the final site=specific design
5 12 for the public improvement, to make the final selection of the
5 13 route or site location for the public improvement, or to
5 14 acquire or condemn, if necessary, all or a portion of the
5 15 property or an interest in the property for the public
5 16 improvement. If the location of the public improvement is
5 17 changed or expanded after the decision has been made to
5 18 proceed with the public improvement, a notice shall be mailed
5 19 by ordinary mail no less than thirty days before the adoption
5 20 of the ordinance, resolution, motion, or other declaration of
5 21 intent to proceed with a change in the location of the public
5 22 improvement to the owner and any contract purchaser of record
5 23 of the land property to be acquired or condemned, if
5 24 necessary, in the new location of the public improvement
5 25 affected by the change. The mailed notice shall, at a
5 26 minimum, include the following information:
5 27 Sec. 5. Section 6B.2A, subsection 2, unnumbered paragraph
5 28 1, Code 2005, is amended to read as follows:
5 29 The acquiring agency shall cause a notice to be published
5 30 once in a newspaper of general circulation in the county or
5 31 city where the agricultural land property to be acquired or
5 32 condemned is located. The acquiring agency shall also post
5 33 the notice in a conspicuous place on the property. The notice
5 34 shall be published and posted at least four but no more than
5 35 twenty days before the public hearing is held as referred to
6 1 in subsection 1. The published notice shall, at a minimum,
6 2 include the following information:
6 3 Sec. 6. Section 6B.2A, subsection 4, Code 2005, is amended
6 4 to read as follows:
6 5 4. This section shall apply to the state department of
6 6 transportation only when the property to be condemned by or on
6 7 behalf of the department is agricultural land. However, this
6 8 section shall not apply to a condemnation of property
6 9 agricultural land by the state department of transportation or
6 10 a county for right=of=way that is contiguous to an existing
6 11 road right=of=way and necessary for the maintenance, safety
6 12 improvement, repair, or upgrade of the existing road.
6 13 Notwithstanding section 6B.2C, a condemnation of property by
6 14 the state department of transportation pursuant to this
6 15 subsection shall be approved by the director of the department
6 16 of transportation. For purposes of this subsection, "upgrade"
6 17 means to bring a road or bridge up to currently acceptable
6 18 standards, including improved geometrics, passing lanes,
6 19 turning lanes, climbing lanes, and improved shoulders.
6 20 "Upgrade" does not include expanding a highway from two lanes
6 21 to four lanes.
6 22 Sec. 7. Section 6B.2B, Code 2005, is amended to read as
6 23 follows:
6 24 6B.2B ACQUISITION NEGOTIATION STATEMENT OF RIGHTS.
6 25 The acquiring agency shall make a good faith effort to
6 26 negotiate with the owner to purchase the private property or
6 27 property interest before filing an application for
6 28 condemnation or otherwise proceeding with the condemnation
6 29 process. An acquiring agency shall not make an offer to
6 30 purchase the property or property interest that is less than
6 31 the fair market value the acquiring agency has established for
6 32 the property or property interest pursuant to the appraisal
6 33 required in section 6B.45 or less than the value determined
6 34 under the acquiring agency's waiver procedure established
6 35 pursuant to section 6B.54, subsection 2, for acquisition of
7 1 property with a low fair market value. A purchase offer made
7 2 by an acquiring agency shall include provisions for payment to
7 3 the owner of expenses, including relocation expenses, expenses
7 4 listed in section 6B.54, subsection 10, and other expenses
7 5 required by law to be paid by an acquiring agency to a
7 6 condemnee. However, an in the alternative, the acquiring
7 7 agency may offer, and the owner may accept, a purchase offer
7 8 from the acquiring agency that is an amount equal to one
7 9 hundred twenty=five percent of the appraisal amount plus
7 10 payment to the owner of expenses listed in section 6B.54,
7 11 subsection 10, once those expenses have been determined. If
7 12 the owner accepts such a purchase offer, the owner is barred
7 13 from claiming payment from the acquiring agency for any other
7 14 expenses allowed by law. An acquiring agency need not make an
7 15 offer in excess of that amount the amounts described in this
7 16 section in order to satisfy the requirement to negotiate in
7 17 good faith. An acquiring agency is deemed to have met the
7 18 requirements of this section if the acquiring agency complies
7 19 with section 6B.54.
7 20 Sec. 8. Section 6B.3, subsection 1, paragraph d, Code
7 21 2005, is amended to read as follows:
7 22 d. The purpose for which condemnation is sought. For
7 23 purposes of section 6B.4A, if condemnation of agricultural
7 24 land is sought by a city or county, or an agency of a city or
7 25 county, for location of an industry as that term is defined in
7 26 section 260E.2, the application shall so state. However, the
7 27 city or county shall not be required to disclose information
7 28 on an industrial prospect with which the city or county is
7 29 currently negotiating.
7 30 Sec. 9. Section 6B.3, subsection 2, unnumbered paragraph
7 31 1, Code 2005, is amended to read as follows:
7 32 The applicant shall mail a copy of the application by
7 33 certified mail to the owner at the owner's last known address
7 34 and to any record lienholder or encumbrancer of the property
7 35 at the lienholder's or encumbrancer's last known address. The
8 1 applicant shall also cause the application to be published
8 2 once in a newspaper of general circulation in the county, not
8 3 less than four nor more than twenty days before the meeting of
8 4 the compensation commission to assess the damages. Service of
8 5 the application by publication shall be deemed complete on the
8 6 day of publication. The applicant shall also post a copy of
8 7 the application in a conspicuous place on the property not
8 8 less than four nor more than twenty days before the meeting of
8 9 the compensation commission to assess the damages.
8 10 Sec. 10. Section 6B.3, subsection 3, unnumbered paragraph
8 11 2, Code 2005, is amended to read as follows:
8 12 When indexed, the proceeding is considered pending so as to
8 13 charge all persons not having an interest in the property with
8 14 notice of its pendency, and while pending no interest can be
8 15 acquired by the third parties in the property against the
8 16 rights of the applicant. If the appraisement of damages by
8 17 the commission pursuant to section 6B.14 is not made within
8 18 one hundred twenty days of indexing, the proceedings
8 19 instituted under this section are terminated and all rights
8 20 and interests of the applicant arising out of the application
8 21 for condemnation terminate. The applicant may reinstitute a
8 22 new condemnation proceeding at any time. The reinstituted
8 23 proceedings are entirely new proceedings and not a revival of
8 24 the terminated proceeding.
8 25 Sec. 11. NEW SECTION. 6B.3A CHALLENGE BY OWNER.
8 26 An owner of property described in an application for
8 27 condemnation may bring an action to challenge the exercise of
8 28 eminent domain authority or the condemnation proceedings in
8 29 the district court of the county in which the private property
8 30 is situated. The action shall be brought within thirty days
8 31 from the date of mailing the notice of appraisement of damages
8 32 under section 6B.18. Notice of the action shall be given as
8 33 provided in section 6B.18.
8 34 Sec. 12. Section 6B.8, Code 2005, is amended to read as
8 35 follows:
9 1 6B.8 NOTICE OF ASSESSMENT.
9 2 The applicant, or the owner or any lienholder or
9 3 encumbrancer of any land described in the application, may, at
9 4 any time after the appointment of the commissioners, have the
9 5 damages to the lands of any such owner assessed by giving the
9 6 other party, if a resident of this state, thirty days' notice,
9 7 in writing. The notice shall specify the day and the hour
9 8 when the compensation commission will meet, view the premises,
9 9 and assess the damages. The notice shall be personally served
9 10 upon all necessary parties in the same manner provided by the
9 11 Iowa rules of civil procedure for the personal service of
9 12 original notice. If a city or county, or an agency of a city
9 13 or county, is seeking to condemn agricultural land for an
9 14 industry as that term is defined in section 260E.2, the notice
9 15 shall inform the landowner that the landowner may request that
9 16 the compensation commission review the application as provided
9 17 in section 6B.4A.
9 18 Sec. 13. Section 6B.14, unnumbered paragraph 2, Code 2005,
9 19 is amended to read as follows:
9 20 Prior to the meeting of the commission, the commission or a
9 21 commissioner shall not communicate with the applicant,
9 22 property owner, or tenant, or their agents, regarding the
9 23 condemnation proceedings. The commissioners shall meet in
9 24 open session to view the property and to receive evidence, but
9 25 may and shall deliberate in closed open session. After
9 26 deliberations commence, the commission and each commissioner
9 27 is prohibited from communicating with any party to the
9 28 proceeding, unless such communication occurs in the presence
9 29 of or with the consent of the property owner and the other
9 30 parties who appeared before the commission. The commission
9 31 shall keep minutes of all its meetings showing the date, time,
9 32 and place, the members present, and the action taken at each
9 33 meeting. The minutes shall show the results of each vote
9 34 taken and information sufficient to indicate the vote of each
9 35 member present. The vote of each member present shall be made
10 1 public at the open session. The minutes shall be public
10 2 records open to public inspection.
10 3 Sec. 14. Section 6B.14, Code 2005, is amended by adding
10 4 the following new unnumbered paragraph after unnumbered
10 5 paragraph 2:
10 6 NEW UNNUMBERED PARAGRAPH. In determining fair market value
10 7 of property, the commissioners shall not consider only the
10 8 assessed value assigned to such property for purposes of
10 9 property taxation.
10 10 Sec. 15. Section 6B.42, subsection 1, Code 2005, is
10 11 amended to read as follows:
10 12 1. a. The If condemnation of property will result in the
10 13 displacement of a person, the acquiring agency shall provide
10 14 to the person, in addition to any other sums of money in
10 15 payment of just compensation and upon proper application to
10 16 the acquiring agency, the payments and assistance required by
10 17 law, in accordance with chapter 316 payment for actual
10 18 reasonable and necessary expenses incurred in moving the
10 19 person, the person's family, business, farm operation, or
10 20 other personal property. The payment may also provide for
10 21 actual direct losses of tangible personal property, purchase
10 22 of substitute personal property, business reestablishment
10 23 expenses, storage expenses, and expenses incurred in searching
10 24 for a replacement business or farm operation. If relocation
10 25 of a business or farm operation is not economically feasible,
10 26 the displaced person may also apply for payment of the loss of
10 27 existing business relationships because of the inability to
10 28 relocate the business or farm operation to a location similar
10 29 in economic advantage to the location from which the business
10 30 or farm operation was moved.
10 31 b. A person aggrieved by a determination made as to
10 32 eligibility for relocation assistance, a payment, or the
10 33 amount of the payment, upon application, may apply to have the
10 34 matter reviewed by the appropriate acquiring agency.
10 35 c. An acquiring agency subject to this section that
11 1 proposes to displace a person shall inform the person of the
11 2 person's right to receive relocation assistance and payments,
11 3 and of an aggrieved person's right to appeal a determination
11 4 as to assistance and payments.
11 5 Sec. 16. Section 6B.45, Code 2005, is amended to read as
11 6 follows:
11 7 6B.45 MAILING COPY OF APPRAISAL.
11 8 When any real property or interest in real property is to
11 9 be purchased, or in lieu thereof to be condemned, the
11 10 acquiring agency or its agent shall submit to the person,
11 11 corporation, or entity whose property or interest in the
11 12 property is to be taken, by ordinary mail, at least ten days
11 13 prior to the date upon which the acquiring agency or its agent
11 14 contacts the property owner to commence negotiations, a copy
11 15 of the appraisal in its entirety upon such real property or
11 16 interest in such real property prepared for the acquiring
11 17 agency or its agent, which shall include, at a minimum, an
11 18 itemization of the appraised value of the real property or
11 19 interest in the property, any buildings on the property, all
11 20 other improvements including fences, severance damages, and
11 21 loss of access. In determining fair market value of property,
11 22 the commissioners shall not consider only the assessed value
11 23 assigned to such property for purposes of property taxation.
11 24 The appraisal sent to the condemnee shall be that appraisal
11 25 upon which the condemnor will rely to establish an amount
11 26 which the condemnor believes to be just compensation for the
11 27 real property. All other appraisals made on the property as a
11 28 result of the condemnation proceeding shall be made available
11 29 to the condemnee upon request. In lieu of an appraisal, a
11 30 utility or person under the jurisdiction of the utilities
11 31 board of the department of commerce, or any other utility
11 32 conferred the right by statute to condemn private property,
11 33 shall provide in writing by certified mail to the owner of
11 34 record thirty days prior to negotiations, the methods and
11 35 factors used in arriving at an offered price for voluntary
12 1 easements including the range of cash amount of each
12 2 component. An acquiring agency may obtain a signed written
12 3 waiver from the landowner to allow negotiations to commence
12 4 prior to the expiration of the applicable waiting period for
12 5 the commencement of negotiations.
12 6 Sec. 17. Section 6B.54, Code 2005, is amended to read as
12 7 follows:
12 8 6B.54 FEDERALLY ASSISTED PROJECT AND DISPLACING ACTIVITIES
12 9 == ACQUISITION POLICIES FOR ACQUIRING AGENCIES.
12 10 For any project or displacing activity that has received or
12 11 will receive federal financial assistance as defined in
12 12 section 316.1, for any state=funded projects, or for any other
12 13 public use, public purpose, or public improvement for which
12 14 condemnation is sought, an acquiring agency shall, at a
12 15 minimum, satisfy the following policies:
12 16 1. Every reasonable and good faith effort shall be made to
12 17 acquire expeditiously real property by negotiation as provided
12 18 in section 6B.2B.
12 19 2. Real property shall be appraised as required by section
12 20 6B.45 before the initiation of negotiations, and the owner or
12 21 the owner's designated representative shall be given an
12 22 opportunity to accompany at least one appraiser of the
12 23 acquiring agency during an inspection of the property, except
12 24 that an acquiring agency may prescribe a procedure to waive
12 25 the appraisal in cases involving the acquisition of property
12 26 with a low fair market value. In lieu of an appraisal, a
12 27 utility or person under the jurisdiction of the utilities
12 28 board of the department of commerce, or any other utility
12 29 conferred the right by statute to condemn private property,
12 30 shall provide in writing by certified mail to the owner of
12 31 record thirty days before negotiations, the methods and
12 32 factors used in arriving at an offered price for voluntary
12 33 easements including the range of cash amount of each
12 34 component.
12 35 3. Before the initiation of negotiations for real
13 1 property, the acquiring agency shall establish an amount which
13 2 it believes to be just compensation for the real property, and
13 3 shall make a prompt offer to acquire the property for the full
13 4 amount established by the agency. In no event shall the
13 5 amount be less than the lowest appraisal of the fair market
13 6 value of the acquiring agency has established for the property
13 7 or property interest pursuant to the appraisal required in
13 8 section 6B.45 or less than the value determined under the
13 9 acquiring agency's waiver procedure established pursuant to
13 10 subsection 2. A purchase offer made by an acquiring agency
13 11 shall include provisions for payment to the owner of expenses,
13 12 including relocation expenses, expenses listed in subsection
13 13 10, and other expenses required by law to be paid by an
13 14 acquiring agency to a condemnee. However, in the alternative,
13 15 the acquiring agency may offer, and the owner may accept, a
13 16 purchase offer from the acquiring agency that is an amount
13 17 equal to one hundred twenty=five percent of the appraisal
13 18 amount plus payment to the owner of expenses listed in
13 19 subsection 10, once those expenses have been determined. If
13 20 the owner accepts such a purchase offer, the owner is barred
13 21 from claiming payment from the acquiring agency for any other
13 22 expenses allowed by law. In the case of a utility or person
13 23 under the jurisdiction of the utilities board of the
13 24 department of commerce, or any other utility conferred the
13 25 right by statute to condemn private property, the amount shall
13 26 not be less than the amount indicated by the methods and
13 27 factors used in arriving at an offered price for a voluntary
13 28 easement.
13 29 4. The construction or development of a public improvement
13 30 shall be so scheduled that, to the greatest extent
13 31 practicable, no person lawfully occupying real property shall
13 32 be required to move from a dwelling or to move the person's
13 33 business or farm operation without at least ninety days'
13 34 written notice of the date by which the move is required.
13 35 5. If after damages have been finally determined and paid,
14 1 an owner or tenant is permitted to occupy the real property
14 2 acquired on a rental basis for a short term or for a period
14 3 subject to termination on short notice, the amount of rent
14 4 required shall not exceed the fair rental value of the
14 5 property to a short=term occupier.
14 6 6. In no event shall the time of condemnation be advanced,
14 7 or negotiations or condemnation and the deposit of funds in
14 8 court for the use of the owner be deferred, or any other
14 9 coercive action be taken to compel an agreement on the price
14 10 to be paid for the property.
14 11 7. If an interest in real property is to be acquired by
14 12 exercise of the power of eminent domain, formal condemnation
14 13 proceedings shall be instituted. The acquiring agency shall
14 14 not intentionally make it necessary for an owner to institute
14 15 legal proceedings to prove the fact of the taking of the
14 16 owner's real property.
14 17 8. If the acquisition of only a portion of property would
14 18 leave the owner with an uneconomical remnant, the acquiring
14 19 agency shall offer to acquire that remnant. For the purposes
14 20 of this chapter, an "uneconomical remnant" is a parcel of real
14 21 property in which the owner is left with an interest after the
14 22 partial acquisition of the owner's property, where the
14 23 acquiring agency determines that the parcel has little or no
14 24 value or utility to the owner.
14 25 9. A person whose real property is being acquired in
14 26 accordance with this chapter, after the person has been fully
14 27 informed of the person's right to receive just compensation
14 28 for the property, may donate the property, any part of the
14 29 property, any interest in the property, or any compensation
14 30 paid for it as the person may determine.
14 31 10. As soon as practicable after the date of payment of
14 32 the purchase price or the date of deposit in court of funds to
14 33 satisfy the award of compensation in a condemnation proceeding
14 34 to acquire real property, whichever is earlier, the acquiring
14 35 agency shall reimburse the owner, to the extent the acquiring
15 1 agency deems fair and reasonable, for expenses the owner
15 2 necessarily incurred for all of the following:
15 3 a. Recording fees, transfer taxes, and similar expenses
15 4 incidental to conveying the real property to the acquiring
15 5 agency.
15 6 b. Penalty costs for full or partial prepayment of any
15 7 preexisting recorded mortgage entered into in good faith
15 8 encumbering the real property.
15 9 c. Reasonable attorney fees and reasonable costs,
15 10 including expert witness fees and fees relating to appraisal
15 11 of the property.
15 12 Payments and expenditures under this subsection are
15 13 incident to and arise out of the program or project for which
15 14 the acquisition activity takes place. Such payments and
15 15 expenditures may be made from the funds made available for the
15 16 program or project.
15 17 A person aggrieved by a determination as to the eligibility
15 18 for or amount of a reimbursement may apply to have the matter
15 19 reviewed by the acquiring agency or in accordance with section
15 20 316.9 if applicable.
15 21 11. An owner shall not be required to surrender possession
15 22 of real property before the acquiring agency concerned pays
15 23 the agreed purchase price.
15 24 12. After damages have been finally determined and paid,
15 25 the acquiring agency may offer, and the owner may accept, an
15 26 amount equal to twenty=five percent of the amount of damages
15 27 plus payment to the owner of expenses listed in subsection 10,
15 28 once those expenses have been determined. If the owner
15 29 accepts such an offer, the owner is barred from claiming
15 30 payment from the acquiring agency for any other expenses
15 31 allowed by law.
15 32 Sec. 18. Section 6B.55, unnumbered paragraph 1, Code 2005,
15 33 is amended to read as follows:
15 34 For any program or project that has received or will
15 35 receive federal financial assistance as defined in section
16 1 316.1, for any state=funded projects, or for any other public
16 2 use, public purpose, or public improvement for which
16 3 condemnation is sought, an acquiring agency shall at a minimum
16 4 satisfy the following policies:
16 5 Sec. 19. Section 6B.56, subsection 2, Code 2005, is
16 6 amended to read as follows:
16 7 2. Before the real property may be offered for sale to the
16 8 general public, the condemner shall notify the prior owner of
16 9 the real property condemned in writing of the condemner's
16 10 intent to dispose of the real property, of the current
16 11 appraised value of the real property, and of the prior owner's
16 12 right to purchase the real property within sixty days from the
16 13 date the notice is served at a price equal to the current
16 14 appraised value of the real property or the fair market value
16 15 of the property at the time it was acquired by the acquiring
16 16 agency from the prior owner, whichever is less. The notice
16 17 sent by the condemner as provided in this subsection shall be
16 18 filed with the office of the recorder in the county in which
16 19 the real property is located.
16 20 Sec. 20. NEW SECTION. 6B.56A DISPOSITION OF CONDEMNED
16 21 PROPERTY == ACTION TO RECLAIM.
16 22 When five years have elapsed since property was condemned
16 23 and the property has not been used for the purpose stated in
16 24 the application filed pursuant to section 6B.3 and the
16 25 acquiring agency has not taken action to dispose of the
16 26 property pursuant to section 6B.56, the previous owner may
16 27 bring an action in the district court where the property is
16 28 located to reclaim title to the property. The action shall be
16 29 brought within one hundred eighty days after the five=year
16 30 time period has elapsed. Upon the filing of the action with
16 31 the court, the previous owner shall pay to the county sheriff
16 32 that portion of the damages which reflected the fair market
16 33 value of the property at the time of acquisition. After
16 34 notice of the action has been served on the acquiring agency,
16 35 the previous owner shall also file a copy of the notice with
17 1 the county recorder for recording. Thirty days after service
17 2 of the notice, and upon proof of payment to the sheriff being
17 3 filed with the court, the court shall order that title to the
17 4 property be transferred to the previous owner.
17 5 An acquiring agency shall give written notice to the owner
17 6 of the right to reclaim title under this section at the time
17 7 damages are paid to the owner.
17 8 This section does not apply to property acquired by the
17 9 state department of transportation.
17 10 Sec. 21. NEW SECTION. 6B.60 RENTAL CHARGES PROHIBITED.
17 11 Rent for property for which damages have been determined
17 12 shall not be charged and shall not accrue against the property
17 13 owner until such damages have been finally determined and paid
17 14 and all court challenges related to the condemnation have been
17 15 finally adjudicated.
17 16 Sec. 22. NEW SECTION. 6B.61 APPROVAL OF LOCAL ELECTED
17 17 OFFICIALS REQUIRED.
17 18 Notwithstanding any provision of law to the contrary, any
17 19 entity created by or on behalf of one or more political
17 20 subdivisions and granted, by statute, eminent domain authority
17 21 to acquire property shall not exercise such authority without
17 22 first presenting the proposal to acquire property by eminent
17 23 domain to the governing body of each political subdivision
17 24 that created the entity or on whose behalf the entity was
17 25 created and such proposal receives the approval, by
17 26 resolution, of each governing body.
17 27 Sec. 23. Section 28F.11, Code 2005, is amended to read as
17 28 follows:
17 29 28F.11 EMINENT DOMAIN.
17 30 Any public agency participating in an agreement authorizing
17 31 the joint exercise of governmental powers pursuant to this
17 32 chapter may exercise its power of eminent domain to acquire
17 33 interests in property, under provisions of law then in effect
17 34 and applicable to the public agency, for the use of the entity
17 35 created to carry out the agreement, provided that the power of
18 1 eminent domain is not used to acquire interests in property
18 2 which is part of a system of facilities in existence, under
18 3 construction, or planned, for the generation, transmission or
18 4 sale of electric power. In the exercise of the power of
18 5 eminent domain, the public agency shall proceed in the manner
18 6 provided by chapter 6B. Any interests in property acquired
18 7 are acquired for a public purpose, as defined in chapter 6A,
18 8 of the condemning public agency, and the payment of the costs
18 9 of the acquisition may be made pursuant to the agreement or to
18 10 any separate agreement between the public agency and the
18 11 entity or the other public agencies participating in the
18 12 entity or any of them. Upon payment of costs, any property
18 13 acquired is the property of the entity.
18 14 Sec. 24. Section 316.4, subsection 1, Code 2005, is
18 15 amended to read as follows:
18 16 1. If a program or project undertaken by a displacing
18 17 agency will result in the displacement of a person, the
18 18 displacing agency shall make a payment to the displaced
18 19 person, upon proper application as approved by the displacing
18 20 agency, for actual reasonable and necessary expenses incurred
18 21 in moving the person, the person's family, business, farm
18 22 operation, or other personal property subject to rules and
18 23 limits established by the department. The payment may also
18 24 provide for actual direct losses of tangible personal
18 25 property, purchase of substitute personal property, business
18 26 reestablishment expenses, storage expenses, and expenses
18 27 incurred in searching for a replacement business or farm. If
18 28 relocation of a business or farm operation is not economically
18 29 feasible, the displaced person may also apply for payment of
18 30 the loss of existing business relationships because of the
18 31 inability to relocate the business or farm operation to a
18 32 location similar in economic advantage to the location from
18 33 which the business or farm operation was moved.
18 34 Sec. 25. Section 327I.7, subsection 4, Code 2005, is
18 35 amended to read as follows:
19 1 4. Exercise the power of eminent domain consistent with
19 2 the provisions of chapters 6A and 6B.
19 3 Sec. 26. Section 330A.8, subsection 11, Code 2005, is
19 4 amended to read as follows:
19 5 11. To have the power of eminent domain, such power to be
19 6 exercised in the manner provided by law for municipal
19 7 corporations of this state but only as provided in section
19 8 330A.13.
19 9 Sec. 27. Section 331.441, subsection 2, paragraph b,
19 10 subparagraph (12), Code Supplement 2005, is amended to read as
19 11 follows:
19 12 (12) Funding the acquisition, construction,
19 13 reconstruction, improvement, repair, or equipping of
19 14 waterworks, water mains and extensions, ponds, reservoirs,
19 15 capacity, wells, dams, pumping installations, real and
19 16 personal property, or other facilities available or used for
19 17 the storage, transportation, or utilization of water.
19 18 (a) The county board of supervisors may on its own motion
19 19 or upon a written petition of a water supplier established
19 20 under chapter 357A or 504 direct the county auditor to
19 21 establish a special service area tax district for the purpose
19 22 of issuing general obligation bonds. The special service area
19 23 tax district shall include only unincorporated portions of the
19 24 county and shall be drawn according to engineering
19 25 recommendations provided by the water supplier or the county
19 26 engineer and, in addition, shall be drawn in order that an
19 27 election provided for in subparagraph subdivision (b) can be
19 28 administered. The county's debt service tax levy for the
19 29 county general obligation bonds issued for the purposes set
19 30 out in this subparagraph shall be levied only against taxable
19 31 property within the county which is included within the
19 32 boundaries of the special service area tax district. An owner
19 33 of property not included within the boundaries of the special
19 34 service area tax district may petition the board of
19 35 supervisors to be included in the special service area tax
20 1 district subsequent to its establishment.
20 2 (b) General obligation bonds for the purposes described in
20 3 this subparagraph are subject to an election held in the
20 4 manner provided in section 331.442, subsections 1 through 4,
20 5 if not later than fifteen days following the action by the
20 6 county board of supervisors, eligible electors file a petition
20 7 with the county commissioner of elections asking that the
20 8 question of issuing the bonds be submitted to the registered
20 9 voters of the special service area tax district. The petition
20 10 must be signed by eligible electors equal in number to at
20 11 least five percent of the registered voters residing in the
20 12 special service area tax district. If the petition is duly
20 13 filed within the fifteen days, the board of supervisors shall
20 14 either adopt a resolution declaring that the proposal to issue
20 15 the bonds is abandoned, or direct the county commissioner of
20 16 elections to call a special election within a special service
20 17 area tax district upon the question of issuing the bonds.
20 18 Sec. 28. Section 346.27, subsection 9, paragraph b, Code
20 19 2005, is amended to read as follows:
20 20 b. To acquire in the corporate name of the authority the
20 21 fee simple title to the real property located within the area
20 22 by purchase, gift, devise, or by the exercise of the power of
20 23 eminent domain consistent with the provisions of chapters 6A
20 24 and 6B, or to take possession of real estate by lease.
20 25 Sec. 29. Section 364.4, subsection 1, Code 2005, is
20 26 amended to read as follows:
20 27 1. Acquire, hold, and dispose of property outside the city
20 28 in the same manner as within. However, the power of a city to
20 29 acquire property outside the city does not include the power
20 30 to acquire property outside the city by eminent domain, except
20 31 for the following:
20 32 a. The operation of a city utility as defined in section
20 33 362.2.
20 34 b. The operation of a city franchise conferred the
20 35 authority to condemn private property under section 364.2.
21 1 c. The operation of a combined utility system as defined
21 2 in section 384.80.
21 3 Sec. 30. Section 389.3, unnumbered paragraph 2, Code 2005,
21 4 is amended to read as follows:
21 5 A joint water utility is a political subdivision and an
21 6 instrumentality of municipal government. The statutory
21 7 powers, duties, and limitations conferred upon a city utility
21 8 apply to a joint water utility, except that title to property
21 9 of a joint water utility may be held in the name of the joint
21 10 water utility. The joint water utility board shall have all
21 11 powers and authority of a city with respect to property which
21 12 is held by the joint water utility. A joint water utility
21 13 shall have the power of eminent domain, including the powers,
21 14 duties, and limitations conferred upon a city in chapters 6A
21 15 and 6B, for the purposes of constructing and operating a joint
21 16 water utility.
21 17 Sec. 31. Section 403.2, subsection 4, Code 2005, is
21 18 amended to read as follows:
21 19 4. It is further found and declared that the powers
21 20 conferred by this chapter are for public uses and purposes for
21 21 which public money may be expended and for which the power of
21 22 eminent domain, to the extent authorized, and police power
21 23 exercised; and that the necessity in the public interest for
21 24 the provisions herein enacted is hereby declared as a matter
21 25 of legislative determination.
21 26 Sec. 32. Section 403.5, subsection 4, paragraph b,
21 27 subparagraph (2), Code 2005, is amended to read as follows:
21 28 (2) If it is to be developed for nonresidential uses, the
21 29 local governing body shall determine that such nonresidential
21 30 uses are necessary and appropriate to facilitate the proper
21 31 growth and development of the community in accordance with
21 32 sound planning standards and local community objectives.
21 33 PARAGRAPH DIVIDED. The acquisition of open land authorized
21 34 in subparagraphs (1) and (2) may require the exercise of
21 35 governmental action, as provided in this chapter, because of
22 1 defective or unusual conditions of title, diversity of
22 2 ownership, tax delinquency, improper subdivisions, outmoded
22 3 street patterns, deterioration of site, economic disuse,
22 4 unsuitable topography or faulty lot layouts, or because of the
22 5 need for the correlation of the area with other areas of a
22 6 municipality by streets and modern traffic requirements, or
22 7 any combination of such factors or other conditions which
22 8 retard development of the area. If such governmental action
22 9 involves the exercise of eminent domain authority, the
22 10 municipality is subject to the limitations of this chapter and
22 11 chapters 6A and 6B.
22 12 Sec. 33. Section 403.5, subsection 4, unnumbered paragraph
22 13 2, Code 2005, is amended by striking the unnumbered paragraph.
22 14 Sec. 34. Section 403.6, subsection 3, Code 2005, is
22 15 amended to read as follows:
22 16 3. Within its area of operation, to enter into any
22 17 building or property in any urban renewal area in order to
22 18 make inspections, surveys, appraisals, soundings or test
22 19 borings, and to obtain an order for this purpose from a court
22 20 of competent jurisdiction in the event entry is denied or
22 21 resisted; to acquire by purchase, lease, option, gift, grant,
22 22 bequest, devise, eminent domain or otherwise, any real
22 23 property, or personal property for administrative purposes,
22 24 together with any improvements thereon; to hold, improve,
22 25 clear or prepare for redevelopment any such property; to
22 26 mortgage, pledge, hypothecate or otherwise encumber or dispose
22 27 of any real property; to insure or provide for the insurance
22 28 of any real or personal property or operations of the
22 29 municipality against any risks or hazards, including the power
22 30 to pay premiums on any such insurance; and to enter into any
22 31 contracts necessary to effectuate the purposes of this
22 32 chapter: Provided, however, that no statutory provision with
22 33 respect to the acquisition, clearance or disposition of
22 34 property by public bodies shall restrict a municipality or
22 35 other public body exercising powers hereunder in the exercise
23 1 of such functions with respect to an urban renewal project,
23 2 unless the legislature shall specifically so state. A
23 3 municipality or other public body exercising powers under this
23 4 chapter with respect to the acquisition, clearance, or
23 5 disposition of property shall not be restricted by any other
23 6 statutory provision in the exercise of such powers unless such
23 7 statutory provision specifically states its application to
23 8 this chapter or unless this chapter specifically applies
23 9 restrictions contained in another statutory provision to the
23 10 powers that may be exercised under this chapter.
23 11 Sec. 35. Section 403.7, Code 2005, is amended to read as
23 12 follows:
23 13 403.7 CONDEMNATION OF PROPERTY.
23 14 1. A municipality shall have the right to acquire by
23 15 condemnation any interest in real property, including a fee
23 16 simple title thereto, which it may deem necessary for or in
23 17 connection with an urban renewal project under this chapter,
23 18 subject to the limitations on eminent domain authority in
23 19 chapter 6A. However, a municipality shall not condemn
23 20 agricultural land included within an economic development area
23 21 for any use unless the owner of the agricultural land consents
23 22 to condemnation or unless the agricultural land is to be
23 23 acquired for industry as that term is defined in section
23 24 260E.2 the municipality determines that the land is necessary
23 25 or useful for any of the following:
23 26 a. The operation of a city utility as defined in section
23 27 362.2.
23 28 b. The operation of a city franchise conferred the
23 29 authority to condemn private property under section 364.2.
23 30 c. The operation of a combined utility system as defined
23 31 in section 384.80.
23 32 2. A municipality may shall exercise the power of eminent
23 33 domain in the manner provided in chapter 6B, and Acts
23 34 amendatory to that chapter or supplementary to that chapter,
23 35 or it may exercise the power of eminent domain in the manner
24 1 now or which may be hereafter provided by any other statutory
24 2 provisions for the exercise of the power of eminent domain.
24 3 Property already devoted to a public use may be acquired in
24 4 like manner. However, real property belonging to the state,
24 5 or any political subdivision of this state, shall not be
24 6 acquired without its consent, and real property or any right
24 7 or interest in the property owned by any public utility
24 8 company, pipeline company, railway or transportation company
24 9 vested with the right of eminent domain under the laws of this
24 10 state, shall not be acquired without the consent of the
24 11 company, or without first securing, after due notice to the
24 12 company and after hearing, a certificate authorizing
24 13 condemnation of the property from the board, commission, or
24 14 body having the authority to grant a certificate authorizing
24 15 condemnation.
24 16 3. In a condemnation proceeding, if a municipality
24 17 proposes to take a part of a lot or parcel of real property,
24 18 the municipality shall also take the remaining part of the lot
24 19 or parcel if requested by the owner.
24 20 Sec. 36. Section 403A.3, subsection 4, Code 2005, is
24 21 amended to read as follows:
24 22 4. To lease or rent any dwellings, accommodations, lands,
24 23 buildings, structures or facilities embraced in any project
24 24 and (subject to the limitations contained in this chapter with
24 25 respect to the rental of dwellings in housing projects) to
24 26 establish and revise the rents or charges therefor; to own,
24 27 hold and improve real or personal property; to purchase,
24 28 lease, obtain options upon, acquire by gift, grant, bequest,
24 29 devise or otherwise any real or personal property or any
24 30 interest therein; to acquire by the exercise of the power of
24 31 eminent domain any real property subject to section 403A.20;
24 32 to sell, lease, exchange, transfer, assign, pledge or dispose
24 33 of any real or personal property or any interest therein; to
24 34 insure or provide for the insurance, in any stock or mutual
24 35 company of any real or personal property or operations of the
25 1 municipality against any risks or hazards; to procure or agree
25 2 to the procurement of federal or state government insurance or
25 3 guarantees of the payment of any bonds or parts thereof issued
25 4 by a municipality, including the power to pay premiums on any
25 5 such insurance.
25 6 Sec. 37. Section 403A.20, Code 2005, is amended to read as
25 7 follows:
25 8 403A.20 CONDEMNATION OF PROPERTY.
25 9 A municipality shall have the right to acquire by
25 10 condemnation any interest in real property, including a fee
25 11 simple title thereto, which it may deem necessary for or in
25 12 connection with a municipal housing project under this
25 13 chapter, subject to the limitations on eminent domain
25 14 authority in chapter 6A. A municipality may shall exercise
25 15 the power of eminent domain in the manner provided in chapter
25 16 6B, and acts amendatory thereof or supplementary thereto, or
25 17 it may exercise the power of eminent domain in the manner now
25 18 or which may be hereafter provided by any other statutory
25 19 provisions for the exercise of the power of eminent domain.
25 20 Property already devoted to a public use may be acquired in
25 21 like manner: Provided, that no. However, real property
25 22 belonging to the state, or any political subdivision thereof,
25 23 may shall not be acquired without its consent, provided
25 24 further that no and real property or any right or interest
25 25 therein in the property owned by any public utility company,
25 26 pipeline company, railway or transportation company vested
25 27 with the right of eminent domain under the laws of this state,
25 28 shall not be acquired without the consent of such the company,
25 29 or without first securing, after due notice to such the
25 30 company and after hearing, a certificate authorizing
25 31 condemnation of such property from the board, commission, or
25 32 body having the authority to grant a certificate authorizing
25 33 condemnation.
25 34 In a condemnation proceeding, if a municipality proposes to
25 35 take a part of a lot or parcel of real property, the
26 1 municipality shall also take the remaining part of the lot or
26 2 parcel if requested by the owner.
26 3 Sec. 38. Section 422.73, Code 2005, is amended by adding
26 4 the following new subsection:
26 5 NEW SUBSECTION. 3. Notwithstanding subsection 1, a claim
26 6 for credit or refund of the income tax paid on the gain
26 7 realized from the involuntary conversion of property due to a
26 8 condemnation action is timely filed with the department as
26 9 provided in this subsection if the taxpayer's claim is the
26 10 result of the reacquisition by the taxpayer, as the prior
26 11 owner, of the property condemned pursuant to section 6B.56,
26 12 subsection 2, or section 6B.56A. The claim under this
26 13 subsection shall be timely filed only if the claim is made
26 14 prior to the end of the sixth month following the month in
26 15 which the reacquisition occurs.
26 16 Sec. 39. Section 468.128, Code 2005, is amended to read as
26 17 follows:
26 18 468.128 IMPOUNDING AREAS AND EROSION CONTROL DEVICES.
26 19 Levee and drainage districts are empowered to construct
26 20 impounding areas and other flood and erosion control devices
26 21 to protect lands of the district and drainage structures and
26 22 may provide ways for access to improvements for the operation
26 23 or protection thereof, where the cost is not excessive in
26 24 consideration of the value to the district. Necessary lands
26 25 or easements may be acquired within or without the district by
26 26 purchase, lease or agreement, or by exercise of the right of
26 27 eminent domain as provided for in chapter 6B and may be
26 28 procured and construction undertaken either independently or
26 29 in co=operation with other districts, individuals, or any
26 30 federal or state agency or political subdivision.
26 31 Sec. 40. Section 468.146, subsection 1, Code 2005, is
26 32 amended to read as follows:
26 33 1. When a drainage district is established and a
26 34 satisfactory outlet cannot be obtained except through lands in
26 35 an adjoining county, or when an improved outlet cannot be
27 1 obtained except through lands downstream from the district
27 2 boundary, the board shall have the power to purchase a right
27 3 of way, to construct and maintain such outlets, and to pay all
27 4 necessary costs and expenses out of the district funds. The
27 5 board shall have similar authority relative to the
27 6 construction and maintenance of silt basins upstream from the
27 7 district boundary. In case the board and the owners of the
27 8 land required for such outlet or silt basin cannot agree upon
27 9 the price to be paid as compensation for the land taken or
27 10 used, the board is hereby empowered to exercise the right of
27 11 eminent domain as provided for in chapter 6B in order to
27 12 procure such necessary right of way.
27 13 Sec. 41. Section 468.366, Code 2005, is amended to read as
27 14 follows:
27 15 468.366 SETTLING BASIN == CONDEMNATION.
27 16 If, before a district operating a pumping plant is
27 17 completed and accepted, it appears that portions of the lands
27 18 within said district are wet or nonproductive by reason of the
27 19 floods or overflow waters from one or more streams running
27 20 into, through, or along said district and that said district
27 21 or some other district of which such district shall have
27 22 formed a part, shall have provided a settling basin to care
27 23 for the said floods and overflow waters of said stream or
27 24 watercourse, but no channel to said settling basin has been
27 25 provided, said board or boards are hereby empowered to lease,
27 26 buy, or condemn the necessary lands within or without the
27 27 district for such channel. Proceedings to condemn shall be as
27 28 provided in chapter 6B for the exercise of the right of
27 29 eminent domain.
27 30 Sec. 42. CODE EDITOR DIRECTIVE.
27 31 1. The Code editor is directed to make the following
27 32 transfers:
27 33 a. Section 6B.10 to become subsection 2 of section 6B.9.
27 34 b. Section 6B.20 to become subsection 4 of section 6B.18.
27 35 c. Section 6B.27 to become subsection 2 of section 6B.26.
28 1 d. Sections 6B.39 and 6B.41 to become subsections 3 and 4,
28 2 respectively, of section 6B.38.
28 3 e. Section 6B.43 to become unnumbered paragraph 3 of
28 4 section 6B.4.
28 5 f. Sections 6B.47 through 6B.51 to become subsections 2
28 6 through 6, respectively, of section 6B.46.
28 7 g. Section 6B.58 to become subsection 2 of section 6B.1.
28 8 2. The Code editor is directed to correct internal
28 9 references in the Code as necessary due to enactment of this
28 10 section.
28 11 Sec. 43. Section 6B.4A, Code 2005, is repealed.
28 12 Sec. 44. EFFECTIVE AND APPLICABILITY DATES.
28 13 1. The section of this Act enacting section 422.73,
28 14 subsection 3, being deemed of immediate importance, takes
28 15 effect upon enactment and applies to reacquisitions of
28 16 property occurring on or after the effective date of this Act.
28 17 2. The remainder of this Act, being deemed of immediate
28 18 importance, takes effect upon enactment and applies to
28 19 condemnation actions initiated on or after the effective date
28 20 of this Act.
28 21 EXPLANATION
28 22 This bill makes changes to the law relating to government
28 23 authority, including eminent domain authority and the
28 24 procedure by which eminent domain authority is exercised
28 25 (condemnation), essential county purposes, and other properly
28 26 related matters.
28 27 The bill changes from 40 feet to 66 feet the width of a
28 28 public way that may be acquired by eminent domain by an owner
28 29 of land without a way to the land, except that the greater
28 30 width does not apply to agricultural land or land with single
28 31 family residences.
28 32 The bill provides limitations on the exercise of eminent
28 33 domain authority for all private property by defining "public
28 34 use", "public purpose", and "public improvement" to mean use
28 35 of property by the general public; governmental entities;
29 1 public or private utilities, common carriers, or airports or
29 2 airport systems. "Public use", "public purpose", and "public
29 3 improvement" are also defined in the bill to include the
29 4 acquisition of property in those portions of urban renewal
29 5 areas designated as slum or blighted if the parcel to be
29 6 condemned is in a slum or blighted condition, acquisition of
29 7 brownfield sites, and private use of property that is
29 8 incidental to its public use. The bill further provides that
29 9 "public use", "public purpose", and "public improvement" do
29 10 not mean economic development activities or privately funded
29 11 activities unless such activities are specifically included in
29 12 the definition of these terms. The bill also provides that
29 13 private property shall not be condemned for creation of a
29 14 lake, construction of a landfill, or construction of sewer
29 15 treatment facilities unless the acquiring agency demonstrates
29 16 that no other prudent and feasible alternative exists to
29 17 accomplish its purpose. The bill also provides that private
29 18 property shall not be condemned for a park or recreational
29 19 facility unless a good faith effort has been made to purchase
29 20 a prudent and feasible location from a willing seller.
29 21 The bill provides that, in an action contesting
29 22 condemnation of property, the burden of proof is on the
29 23 acquiring agency to demonstrate by clear and convincing
29 24 evidence that the proposed use of the property meets the
29 25 definition of "public use", "public purpose", and "public
29 26 improvement" and that there is no prudent and feasible
29 27 alternative to condemnation of the property.
29 28 The bill amends Code section 6B.2A to extend the current
29 29 notice requirements for condemnation of agricultural land to
29 30 condemnation of all private property and requires the
29 31 acquiring agency to post the notice in a conspicuous place on
29 32 the property. The bill provides that these notice
29 33 requirements apply to the department of transportation only
29 34 when the land being condemned by or on behalf of the
29 35 department is agricultural land.
30 1 The bill strikes the exception for condemnation of
30 2 agricultural land for industry and, correspondingly, repeals
30 3 Code section 6B.4A that gave a compensation commission the
30 4 authority to review an application by a city or county for
30 5 condemnation of agricultural land for industry.
30 6 The bill provides that when engaging in negotiations with a
30 7 landowner, the acquiring agency shall offer a price for the
30 8 property that is not less than the acquiring agency's
30 9 appraisal or that is not less than the value determined under
30 10 the acquiring agency's appraisal waiver procedure for property
30 11 with a low fair market value plus such expenses. Code section
30 12 6B.54 currently allows an acquiring agency to establish an
30 13 appraisal waiver procedure for property with a low fair market
30 14 value. The bill also requires the purchase offer to contain a
30 15 provision for payment of all expenses payable to a condemnee.
30 16 The bill provides that, in the alternative, an acquiring
30 17 agency may offer an amount equal to 125 percent of the
30 18 appraised value plus the amount of certain specified expenses.
30 19 If the owner accepts this offer, the owner is barred from
30 20 claiming payment from the acquiring agency for any other
30 21 expenses allowed by law. The bill contains a similar
30 22 provision in situations where the property is acquired through
30 23 condemnation and the damages have been finally determined and
30 24 paid.
30 25 The bill requires the acquiring agency to post a copy of
30 26 the application for condemnation in a conspicuous place on the
30 27 property during the same time period in which the application
30 28 is to be published.
30 29 The bill provides that a challenge to the exercise of
30 30 eminent domain authority or to the condemnation proceedings
30 31 may be brought by the owner of the property during the same
30 32 30=day time period that the owner may file the notice of
30 33 appeal of appraisement of the damages determined by the
30 34 compensation commission.
30 35 The bill provides that a compensation commission shall
31 1 deliberate in open session.
31 2 The bill amends Code sections 6B.14 and 6B.45 to provide
31 3 that when the compensation commission or the acquiring agency,
31 4 respectively, are determining the fair market value of the
31 5 property, neither may consider the assessed value of property
31 6 that has been platted and is being developed but, by statute,
31 7 retains its assessment as undeveloped property.
31 8 The bill specifies that payments for relocating persons
31 9 displaced by condemnation, including expenses incurred in
31 10 moving the person's family, business, or farm operation, shall
31 11 be paid for any condemnation that displaces a person, not just
31 12 those that are for projects or programs receiving federal
31 13 financial assistance. For all condemnations, including those
31 14 receiving federal financial assistance, the bill provides that
31 15 if relocation of a business or farm operation is not
31 16 economically feasible, the displaced person may also apply for
31 17 payment of the loss of existing business relationships because
31 18 of the inability to relocate the business or farm operation to
31 19 a location similar in economic advantage to the location from
31 20 which the business or farm operation was moved.
31 21 The bill specifies that Code sections 6B.54 and 6B.55,
31 22 relating to requirements imposed on acquiring agencies, apply
31 23 to condemnations for a public use, public purpose, or public
31 24 improvement. The section is also amended to add reasonable
31 25 attorney fees and reasonable costs, including expert witness
31 26 fees and fees related to appraisals, to the list of expenses
31 27 reimbursable by an acquiring agency to a property owner.
31 28 Current law provides that property obtained by condemnation
31 29 that is later sold by the acquiring agency must be offered for
31 30 sale first to the previous owner at a price equal to the
31 31 current appraised value. The bill provides that it must be
31 32 offered for sale to the previous owner at the current
31 33 appraised value or the fair market value at the time it was
31 34 acquired by the acquiring agency from the prior owner,
31 35 whichever is less.
32 1 The bill allows a previous owner to reclaim title to
32 2 property acquired by condemnation if, after five years from
32 3 the date of acquisition, the property has not been used for
32 4 the purpose stated in the condemnation application and the
32 5 acquiring agency has not taken action to dispose of the
32 6 property. The bill provides that this provision does not
32 7 apply to the state department of transportation.
32 8 The bill provides that rent shall not be charged and shall
32 9 not accrue until the damages for the property have been
32 10 finally determined and paid and all court challenges related
32 11 to the condemnation have been finally adjudicated.
32 12 The bill provides that any entity created by or on behalf
32 13 of a political subdivision and that is conferred the authority
32 14 to acquire property by condemnation shall not use its eminent
32 15 domain authority unless the governing body of each such
32 16 political subdivision has, by resolution, approved the use of
32 17 eminent domain authority by the entity.
32 18 The bill makes changes to various provisions of the Code
32 19 where eminent domain authority is extended to an entity other
32 20 than those listed in Code chapter 6A to specify that those
32 21 entities, when condemning property, are subject to the
32 22 provisions of Code chapters 6A and 6B.
32 23 The bill amends the section of the Code that defines
32 24 "essential county purpose" to remove the provision that allows
32 25 for petition and election on a proposal by the board of
32 26 supervisors to fund, by general obligation bonds, the
32 27 acquisition, construction, improvement, repair, or equipping
32 28 of facilities used for the storage, transportation, or
32 29 utilization of water.
32 30 The bill also provides that the power of a city to acquire
32 31 property outside the city does not include the power to
32 32 acquire property outside the city by eminent domain with
32 33 certain exceptions.
32 34 The bill provides that the authority to exercise the power
32 35 of eminent domain under the urban renewal Code chapter and the
33 1 Code chapter authorizing municipal housing projects is subject
33 2 to the limitations on eminent domain authority in Code chapter
33 3 6A, "Eminent Domain Law (Condemnation)", and the general
33 4 procedure for condemnation of property set out in Code chapter
33 5 6B, "Procedure Under Eminent Domain". Also, relating to
33 6 municipal housing projects, the bill provides that if a
33 7 municipality proposes to take a part of a lot or parcel of
33 8 real property, the municipality shall also take the remaining
33 9 part of the lot or parcel if requested by the owner. The same
33 10 requirement currently applies to condemnation of property for
33 11 urban renewal purposes.
33 12 The bill allows a prior owner who reacquires property that
33 13 had been condemned to amend the owner's tax return for the tax
33 14 year that the owner claimed a gain on the involuntary
33 15 conversion of the property to reflect the payment made to
33 16 reacquire the property.
33 17 Finally, the bill directs the Code editor to make the
33 18 following changes for organizational reasons and ease of
33 19 reading:
33 20 1. The language of Code section 6B.10 is moved to Code
33 21 section 6B.9.
33 22 2. The language of Code section 6B.20 is moved to Code
33 23 section 6B.18.
33 24 3. The language of Code section 6B.27 is moved to Code
33 25 section 6B.26.
33 26 4. The language of Code sections 6B.39 and 6B.41 are moved
33 27 to Code section 6B.38.
33 28 5. The language of Code section 6B.43 is moved to Code
33 29 section 6B.4.
33 30 6. The language of Code sections 6B.47 through 6B.51 is
33 31 moved to Code section 6B.46.
33 32 7. The language of Code section 6B.58 is moved to Code
33 33 section 6B.1.
33 34 The provision of the bill allowing a prior owner to amend a
33 35 tax return upon reacquisition of the property takes effect
34 1 upon enactment and applies to reacquisitions of property
34 2 occurring on or after that date. The remainder of the bill
34 3 takes effect upon enactment and applies to condemnation
34 4 actions initiated on or after the effective date of the bill.
34 5 LSB 5097HV 81
34 6 sc:rj/cf/24.1