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REFERENCE TITLE: eminent domain; attorney fees; interest |
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State of Arizona Senate Forty-ninth Legislature Second Regular Session 2010
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SB 1362 |
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Introduced by Senators Gray C, Pearce R: Gould, Harper
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AN ACT
amending sections 12-1128, 12‑1129 and 12-1130, Arizona Revised Statutes; relating to eminent domain.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 12-1128, Arizona Revised Statutes, is amended to read:
12-1128. Costs and jury fees
A. The court may award reasonable costs may be allowed or not, and attorney fees. If allowed, the court may be apportioned apportion the fees and costs between the parties on the same or adverse sides, in the discretion of the court. The court may award the payment of interest to the defendant at a rate that is equal to three percentage points above the federal postjudgment interest rate in effect on the date judgment is entered.
B. The jury fee may be assessed or not against the plaintiff, in the discretion of the court. If jury fees are so assessed, they shall be calculated in the same manner and amounts as in other civil actions and the plaintiff shall pay such the fee to the clerk of the court for transmittal to the county treasurer who shall dispose such of the monies in the same manner as the disposition of other jury fees.
C. In an action for condemnation of property by or on behalf of an educational, reformatory or penal institution of the this state, if the board or officers having charge of the institution, prior to before commencement of the action or proceeding, tender to the owner of the property such sum of money as the board or officers deem the reasonable value of the property, and the owner refuses to accept it and transfer the property, then all costs and expenses of the action or proceeding shall be taxed against the owner unless the sum of money assessed in the judgment as the value of the property and compensation to be paid therefor is greater than the amount so tendered.
Sec. 2. Section 12-1129, Arizona Revised Statutes, is amended to read:
12-1129. Dismissal of condemnation action; litigation expenses
A. If a plaintiff causes a condemnation action under this article to be dismissed without prejudice before payment of the compensation and damages awarded the defendant by the court or jury, the plaintiff shall not initiate any eminent domain proceeding with respect to the same property for the same or a related project for at least two years after the date of the verdict or judgment.
B. The court having jurisdiction of a condemnation action under this article shall award the owner with any right to, title to or interest in the property that is the subject of the action an amount that will reimburse the owner for the owner's reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceeding if either any of the following occurs:
1. The final judgment is that the plaintiff cannot acquire the real property by condemnation.
2. The proceeding is abandoned on a motion by the plaintiff.
3. If after trial, the final judgment for compensation to the defendant is ten per cent more than the plaintiff's last best written offer for compensation to that defendant.
C. If the proceeding is dismissed on a motion by the plaintiff because the parties have agreed to settle the matter out of court, both parties shall pay their own costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees unless otherwise specified by the parties in the settlement agreement.
Sec. 3. Section 12-1130, Arizona Revised Statutes, is amended to read:
12-1130. Fees and expenses; appraisal; relocation benefits; applicability
A. In a proposed condemnation action if an owner‑occupant of a residential property owner of the real property disagrees with the offer and appraisal, the owner‑occupant owner may obtain a second appraisal from an appraiser who is on the approved list that is maintained by the governmental entity and the governmental entity shall pay for the second appraisal.
B. Before filing an eminent domain action, the governmental entity shall provide to the owner‑occupant owner all appraisals of the property that the governmental entity obtains.
C. Any If a governmental entity that acquires owner‑occupied residential property by condemnation or threat of condemnation, the governmental entity shall provide the owner‑occupant with a determination of relocation benefits in an amount that allows the owner‑occupant to purchase a comparable replacement dwelling as provided under applicable relocation law.
D. In a condemnation action to acquire owner‑occupied residential real property, the court may award fees and other expenses to any party other than this state or a city, town or county or any other political subdivision of this state. In making the determination, the court may consider the amount of the difference between the final offer and the compensation awarded, the percentage of the difference between the final offer and the award and any other factors the court deems appropriate. For the purposes of this subsection, "fees and other expenses" means the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project that the court finds to be directly related to and necessary for the presentation of the party's case and reasonable and necessary attorney fees.
E. This section does not apply to actions for acquisition of property for public safety, transportation, flood control or utility purposes.