HOUSE FILE 603

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HF 64)

(As Amended and Passed by the House 2011-03-22)

A BILL FOR

An Act relating to eminent domain authority and procedures and including effective date and applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  NEW SECTION.  6A.15  Property on state historic registry.
   1. Property listed on the state register of historic places maintained by the historical division of the department of cultural affairs shall not be removed from the register solely for the purpose of allowing acquisition of the property by condemnation, unless such condemnation is undertaken by the department of transportation.
   2.  Property listed on the state register of historic places maintained by the historical division of the department of cultural affairs shall not be condemned by the state or a political subdivision unless a joint resolution authorizing commencement of the condemnation proceedings is approved by a vote of at least two-thirds of the members of both chambers of the general assembly and signed by the governor. The approval requirements of this subsection shall not apply to condemnation undertaken by the department of transportation.
   Sec. 2.  Section 6A.19, Code 2011, is amended to read as follows:
   6A.19  Interpretative clause.
   A grant in this chapter of right to take private property for a public use shall not be construed as limiting a like grant elsewhere in the Code for another and different use.  Unless specifically provided by law, this chapter shall not be construed to limit or otherwise affect the application of chapters 478 and 479 to the eminent domain authority of the utilities division of the department of commerce.
   Sec. 3.  Section 6A.22, subsection 2, paragraph c, subparagraph (1), Code 2011, is amended to read as follows:
   (1)
  (a)  If private property is to be condemned for development or creation of a lake, only that number of acres justified as reasonable and necessary for a surface drinking water source, and not otherwise acquired, may be condemned. In addition, the acquiring agency shall conduct a review of prudent and feasible alternatives to provision of a drinking water source prior to making a determination that such lake development or creation is reasonable and necessary. Development or creation of a lake as a surface drinking water source includes all of the following:
   (i)  Construction of the dam, including sites for suitable borrow material and the auxiliary spillway.
   (ii)  The water supply pool.
   (iii)  The sediment pool.
   (iv)  The flood control pool.
   (v)  The floodwater retarding pool.
   (vi)  The surrounding area upstream of the dam no higher in elevation than the top of the dam’s elevation.
   (vii)  The appropriate setback distance required by state or federal laws and regulations to protect drinking water supply.
   (b)  For purposes of this subparagraph (1),“number of acres justified as reasonable and necessary for a surface drinking water source” means according to guidelines of the United States natural resource conservation service and according to analyses ofsurface drinking water capacity needs conducted by one or more registered professional engineers. The registered professional engineers may, if appropriate, employ standards or guidelines other than the guidelines of the United States natural resource conservation service when determining the number of acres justified as reasonable and necessary for a surface drinking water source. The data and information used by the registered professional engineers shall include data and information relating to population and commercial enterprise activity for the area from the two most recent federal decennial censuses unless the district court of the county in which the property is situated has determined by a preponderance of the evidence that such data would not accurately predict the population and commercial enterprise activity of the area in the future.
   (c)  A second review or analysis of the drinking water capacity needs shall be performed upon receipt by the acquiring agency of a petition signed by not less than twenty-five percent of the affected property owners. The registered professional engineer to perform the second review or analysis shall be selected by a committee appointed by the affected property owners and comprised of at least fifty percent property owners affected by the proposed condemnation action. The acquiring agency shall be responsible for paying the fees and expenses of such an engineer.
   (d)  If private property is to be condemned for development or creation of a lake, the plans, analyses, applications, including any application for funding, and other planning activities of the acquiring agency shall not include or provide for the use of the lake for recreational purposes.
   Sec. 4.  Section 6A.24, subsection 3, Code 2011, is amended to read as follows:
   3. a.(1)  ForExcept as provided in subparagraph (2), for any action brought under this section, the burden of proof shall be on the acquiring agency to prove by a preponderance of the clear and convincing evidence that the finding of public use, public purpose, or public improvement meets the definition of those terms. 
   a.  For any action brought under this section relating to condemnation undertaken by the department of transportation, the burden of proof shall be on the department to prove by a preponderance of the evidence that the finding of public use, public purpose, or public improvement meets the definition of those terms.
   b.  If a property owner or a contract purchaser of record or a tenant occupying the property under a recorded lease prevails in an action brought under this section, the acquiring agency shall be required to pay the costs, including reasonable attorney fees, of the adverse party.
   Sec. 5.  Section 6B.54, subsection 10, paragraph a, Code 2011, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (3)  Reasonable attorney fees and reasonable costs not to exceed one hundred thousand dollars, attributable to a determination that the creation of a lake through condemnation includes a future recreational use or that a violation of section 6A.22, subsection 2, paragraph “c”, subparagraph (1), subparagraph division (d), has occurred, if such fees and costs are not otherwise provided under section 6B.33.
   Sec. 6.  NEW SECTION.  6B.56B  Disposition of condemned property —— two-year time period.
   1.  When two years have elapsed since property was condemned for the creation of a lake according to the requirements of section 6A.22, subsection 2, paragraph “c”, subparagraph (1), and the property has not been used for or construction has not progressed substantially from the date the property was condemned for the purpose stated in the application filed pursuant to section 6B.3, and the acquiring agency has not taken action to dispose of the property pursuant to section 6B.56, the acquiring agency shall, within sixty days, adopt a resolution offering the property for sale to the prior owner at a price as provided in section 6B.56. If the resolution adopted approves an offer of sale to the prior owner, the offer shall be made in writing and mailed by certified mail to the prior owner. The prior owner has one hundred eighty days after the offer is mailed to purchase the property from the acquiring agency.
   2.  If the acquiring agency has not adopted a resolution described in subsection 1 within the sixty-day time period, the prior owner may, in writing, petition the acquiring agency to offer the property for sale to the prior owner at a price as provided in section 6B.56. Within sixty days after receipt of such a petition, the acquiring agency shall adopt a resolution described in subsection 1. If the acquiring agency does not adopt such a resolution within sixty days after receipt of the petition, the acquiring agency is deemed to have offered the property for sale to the prior owner.
   3.  The acquiring agency shall give written notice to the owner of the right to purchase the property under this section at the time damages are paid to the owner.
   Sec. 7.  Section 364.4, subsection 1, paragraph a, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   Acquire, hold, and dispose of property outside the city in the same manner as within. However, the power of a city to acquire property outside the city does not include the power to acquire property outside the city by eminent domain, except if viable alternatives do not exist within the city and the acquisition of the property is necessary for the following, subject to the provisions of chapters 6A and 6B:
   Sec. 8.  Section 403.7, subsection 1, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   A municipality shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto, which it may deem necessary for or in connection with an urban renewal project under this chapter, subject to the limitations on eminent domain authority in chapter chapters 6A and 6B. However, a municipality shall not condemn agricultural land included within an economic development area for any use unless the owner of the agricultural land consents to condemnation or unless the municipality determines that the land is necessary or useful viable alternatives to the condemnation of agricultural land do not exist and the acquisition of the property is necessary for any of the following:
   Sec. 9.  NEW SECTION.  423B.11  Use of revenues —— limitation.
   The revenue raised by a local sales and services tax imposed under this chapter by a county shall not be expended for any purpose related to a project that includes the condemnation of private property for the creation of a lake according to the requirements of section 6A.22, subsection 2, paragraph “c”, subparagraph (1), if the local sales and services tax has not been approved at election in the area where the property to be condemned is located.
   Sec. 10.  Section 455A.5, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  7.  The authority granted to the commission to acquire real property for purposes of carrying out a duty related to development or maintenance of the recreation resources of the state, including planning, acquisition, and development of recreational projects, and areas and facilities related to such projects, shall not include the authority to acquire real property by eminent domain.
   Sec. 11.  Section 456A.24, subsection 2, unnumbered paragraph 1, Code 2011, is amended to read as follows:
   Acquire by purchase, condemnation, lease, agreement, gift, and devise lands or waters suitable for the purposes hereinafter enumerated, and rights-of-way thereto, and to maintain the same for the following purposes, to wit:
   Sec. 12.  Section 456A.24, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  15.  The authority granted the department to acquire real property for any statutory purpose relating to the development or maintenance of the recreation resources of the state, including planning, acquisition, and development of recreational projects, and areas and facilities related to such projects, shall not include the authority to acquire real property by eminent domain.
   Sec. 13.  Section 461A.7, Code 2011, is amended to read as follows:
   461A.7Eminent domain Purchase of lands —— public parks.
   The commission may purchase or condemn lands from willing sellers for public parks. No A contract for the purchase of such public parks shall not be made to an amount in excess of funds appropriated therefor by the general assembly.
   Sec. 14.  Section 461A.10, Code 2011, is amended to read as follows:
   461A.10  Title to lands.
   The title to all lands purchased, condemned, or donated, hereunder, for park or highway purposes and the title to all lands purchased, condemned, or donated hereunder for highway purposes, shall be taken in the name of the state and if thereafter it shall be deemed advisable to sell any portion of the land so purchased or condemned, the proceeds of such sale shall be placed to the credit of the said public state parks fund to be used for such park purposes.
   Sec. 15.  Section 463C.8, subsection 1, paragraph k, Code 2011, is amended to read as follows:
   k.  The power to acquire, own, hold, administer, and dispose of property, except that such power is not a grant of authority to acquire property by eminent domain.
   Sec. 16.  REPEAL.  Sections 461A.9 and 461A.75, Code 2011, are repealed.
   Sec. 17.  EFFECTIVE UPON ENACTMENT AND APPLICABILITY.  This Act, being deemed of immediate importance, takes effect upon enactment and applies to projects or condemnation proceedings pending or commenced on or after that date.