House File 402 - Introduced
HOUSE FILE
BY KAUFMANN, GRASSLEY, and
TYMESON
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 1325HH 83
6 md/sc/8
PAG LIN
1 1 Section 1. Section 6A.22, subsection 2, paragraph c,
1 2 subparagraph (1), Code 2009, is amended to read as follows:
1 3 (1) (a) If private property is to be condemned for
1 4 development or creation of a lake, only that number of acres
1 5 justified as reasonable and necessary for a surface drinking
1 6 water source, and not otherwise acquired, may be condemned.
1 7 In addition Prior to making a determination that such lake
1 8 development or creation is reasonable and necessary, the
1 9 acquiring agency shall conduct a review of demonstrate by
1 10 clear and convincing evidence that no other prudent and
1 11 feasible alternatives to alternative for provision of a
1 12 drinking water source prior to making a determination that
1 13 such lake development or creation is reasonable and necessary
1 14 exists. Development or creation of a lake as a surface
1 15 drinking water source includes all of the following:
1 16 (i) Construction of the dam, including sites for suitable
1 17 borrow material and the auxiliary spillway.
1 18 (ii) The water supply pool.
1 19 (iii) The sediment pool.
1 20 (iv) The flood control pool.
1 21 (v) The floodwater retarding pool.
1 22 (vi) The surrounding area upstream of the dam no higher in
1 23 elevation than the top of the dam's elevation.
1 24 (vii) The appropriate setback distance required by state
1 25 or federal laws and regulations to protect drinking water
1 26 supply.
1 27 (b) For purposes of this subparagraph (1), "number of
1 28 acres justified as reasonable and necessary for a surface
1 29 drinking water source" means according to guidelines of the
1 30 United States natural resource conservation service and
1 31 according to analyses of surface drinking water capacity needs
1 32 conducted by one or more registered professional engineers.
1 33 However, any guidelines or analyses related to future water
1 34 capacity needs or water capacity needs in time of drought
1 35 shall be based on the current rate of drinking water usage in
2 1 the area to be served by the surface drinking water source.
2 2 (c) In making determinations required under this
2 3 subparagraph (1), any reviews or analyses conducted by an
2 4 engineer shall be conducted by a registered professional
2 5 engineer selected by a committee of private landowners
2 6 affected by the proposed condemnation action. The acquiring
2 7 agency shall be responsible for paying the fees and expenses
2 8 of an engineer whose services are retained pursuant to this
2 9 subparagraph (1).
2 10 Sec. 2. Section 6A.24, subsection 3, Code 2009, is amended
2 11 to read as follows:
2 12 3. For any action brought under this section, the burden
2 13 of proof shall be on the acquiring agency to prove by a
2 14 preponderance of the clear and convincing evidence that the
2 15 finding of public use, public purpose, or public improvement
2 16 meets the definition of those terms. If a property owner or a
2 17 contract purchaser of record or a tenant occupying the
2 18 property under a recorded lease prevails in an action brought
2 19 under this section, the acquiring agency shall be required to
2 20 pay the costs, including reasonable attorney fees, of the
2 21 adverse party.
2 22 Sec. 3. Section 6B.54, subsection 10, paragraph a, Code
2 23 2009, is amended by adding the following new subparagraph:
2 24 NEW SUBPARAGRAPH. (3) Reasonable attorney fees and
2 25 reasonable costs not to exceed one hundred thousand dollars,
2 26 including expert witness fees and fees relating to appraisal
2 27 of the property, not otherwise provided under section 6B.33.
2 28 Sec. 4. Section 316.4, subsection 1, Code 2009, is amended
2 29 to read as follows:
2 30 1. If a program or project undertaken by a displacing
2 31 agency will result in the displacement of a person, the
2 32 displacing agency shall make a payment to the displaced
2 33 person, upon proper application as approved by the displacing
2 34 agency, for actual reasonable and necessary expenses incurred
2 35 in moving the person, the person's family, business, farm
3 1 operation, or other personal property subject to rules and
3 2 limits established by the department. The payment may also
3 3 provide for actual direct losses of tangible personal
3 4 property, purchase of substitute personal property, business
3 5 reestablishment expenses, storage expenses, and expenses
3 6 incurred in searching for a replacement business or farm. If
3 7 relocation of a business or farm operation is not economically
3 8 feasible, the displaced person may also apply for payment of
3 9 the loss of existing business relationships because of the
3 10 inability to relocate the business or farm operation to a
3 11 location similar in economic advantage to the location from
3 12 which the business or farm operation was moved.
3 13 Sec. 5. Section 364.4, subsection 1, paragraph a,
3 14 unnumbered paragraph 1, Code 2009, is amended to read as
3 15 follows:
3 16 Acquire, hold, and dispose of property outside the city in
3 17 the same manner as within. However, the power of a city to
3 18 acquire property outside the city does not include the power
3 19 to acquire property outside the city by eminent domain, except
3 20 if viable alternatives do not exist within the city and the
3 21 acquisition of the property is necessary for the following,
3 22 subject to the provisions of chapters 6A and 6B:
3 23 Sec. 6. Section 403.7, subsection 1, unnumbered paragraph
3 24 1, Code 2009, is amended to read as follows:
3 25 A municipality shall have the right to acquire by
3 26 condemnation any interest in real property, including a fee
3 27 simple title thereto, which it may deem necessary for or in
3 28 connection with an urban renewal project under this chapter,
3 29 subject to the limitations on eminent domain authority in
3 30 chapter chapters 6A and 6B. However, a municipality shall not
3 31 condemn agricultural land included within an economic
3 32 development area for any use unless the owner of the
3 33 agricultural land consents to condemnation or unless the
3 34 municipality determines that the land is necessary or useful
3 35 viable alternatives to the condemnation of agricultural land
4 1 do not exist and the acquisition of the property is necessary
4 2 for any of the following:
4 3 Sec. 7. EFFECTIVE DATE. This Act, being deemed of
4 4 immediate importance, takes effect upon enactment and applies
4 5 to projects or condemnation proceedings pending or commenced
4 6 on or after that date.
4 7 EXPLANATION
4 8 This bill makes various changes relating to eminent domain
4 9 authority and the procedure by which eminent domain authority
4 10 is exercised (condemnation).
4 11 The bill provides that, prior to making a determination
4 12 that creation or development of a lake is reasonable and
4 13 necessary, an acquiring agency must demonstrate by clear and
4 14 convincing evidence that no other prudent and feasible
4 15 alternative for provision of a drinking water source exists.
4 16 The bill also provides that when determining the number of
4 17 acres necessary for a surface drinking water source, any
4 18 guidelines or analyses related to future water capacity needs
4 19 or water capacity needs in time of drought shall be based on
4 20 the current rate of drinking water usage in the area to be
4 21 served by the surface drinking water source. The bill further
4 22 provides that the analyses and reviews shall be conducted by a
4 23 registered professional engineer selected by a committee of
4 24 private landowners affected by the proposed condemnation
4 25 action, and the acquiring agency shall pay for the services of
4 26 the engineer.
4 27 The bill changes the standard of proof from a preponderance
4 28 of the evidence to clear and convincing evidence for an action
4 29 brought in district court challenging the exercise of eminent
4 30 domain authority or contesting condemnation proceedings.
4 31 The bill adds reasonable attorney fees and reasonable
4 32 costs, up to $100,000, to the list of expenses reimbursable by
4 33 an acquiring agency to a property owner.
4 34 The bill provides that if relocation of a business or farm
4 35 operation is not economically feasible, the displaced person
5 1 may apply for payment of the loss of existing business
5 2 relationships because of the inability to relocate the
5 3 business or farm operation to a location similar in economic
5 4 advantage to the location from which the business or farm
5 5 operation was moved.
5 6 The bill adds a condition to the circumstances in which a
5 7 city may condemn land outside the city limits to provide that
5 8 condemnation may occur if viable alternatives do not exist
5 9 within the city and the acquisition of the land is necessary
5 10 for the purposes stated in current law. The bill also amends
5 11 urban renewal law relating to the circumstances in which a
5 12 municipality may condemn agricultural land within an economic
5 13 development urban renewal area to provide that condemnation
5 14 may occur if viable alternatives do not exist and the
5 15 acquisition of the land is necessary for the purposes stated
5 16 in current law.
5 17 The bill takes effect upon enactment and applies to
5 18 projects or condemnation proceedings pending or commenced on
5 19 or after that date.
5 20 LSB 1325HH 83
5 21 md/sc/8