FOR CAUCUS & FLOOR ACTION
AMENDED
ARIZONA STATE SENATE
RESEARCH STAFF
|
NADINE SAPIEN LEGISLATIVE RESEARCH ANALYST GOVERNMENT COMMITTEE Telephone: (602) 926 -3171 Facsimile: (602) 926 -3833 |
SUBJECT: Strike Everything Amendment to S.C.R. 1019, relating to eminent domain
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Purpose
Subject to voter approval, entitles a private property owner to a jury trial to determine if a taking is for a public use, and establishes parameters for a just compensation determination and award of attorney fees in eminent domain actions.
Background
Eminent domain is the power of the government to acquire private property for a public purpose. Both the Arizona and the United States Constitutions guarantee the payment of “just compensation” to the property owner for any private property taken by the government (Article 2, Section 17, Constitution of Arizona; Article V, United States Constitution).
The acquisition of private property generally occurs by way of a lawsuit in which the government agency asks the court to award the government immediate possession of the property and to determine the amount of compensation to be paid to the owner for the property. On completion or settlement of the trial and payment of compensation, the government agency acquires title to the property.
In Arizona, the power of eminent domain is authorized by the Constitution or state statute for many different public bodies, including state government, city, town and county governments, school districts and certain utilities and special taxing districts.
In 2005, the U.S. Supreme Court ruled 5-4 that private property may be condemned to make way for private development. The majority opinion for Kelo v. City of New London held that private economic development aimed at generating tax revenues is a “public use” under the Takings Clause of the Fifth Amendment. The Court stated that the decision did not preclude states from placing further restrictions on the power of the government to take private property.
There is an unknown fiscal impact associated with this resolution.
Provisions
Eminent Domain- Public Use
1. Authorizes private property to be taken only for a public use.
2. Requires the Judiciary to comply with the Arizona Constitution’s mandate that no deference be given to determinations by this state or a political subdivision that a taking is for a valid public use in all eminent domain actions.
3. Requires the state or a political subdivision to establish by clear and convincing evidence that each parcel is necessary for a public use and that no reasonable alternative to condemnation exists in any eminent domain action for the purpose of slum or blight clearance or redevelopment.
4. Entitles a property owner to have a jury serve as the finder of fact in a hearing or trial to determine whether the taking is actually for a public use in an eminent domain action for the purpose of slum or blight clearance or redevelopment.
Just Compensation
5. Requires property taken for a public use to be valued at its highest and best use without considering any future dedication requirements imposed by this state or any political subdivision.
6. Sets the amount of compensation at no less than 125 percent of the property’s fair market value, in addition to any other reimbursement allowed by law if the private property consisting of an individual’s principal residence is taken for a public use for the purpose of slum or blight clearance or redevelopment.
7. Requires the owner of a business conducted on the property that is taken to be compensated for loss of goodwill in addition to all relocation costs that are required by state and federal law.
8. Entitles a property owner to just compensation if the use or division of private real property is reduced by the enactment or enforcement of any land use law after the date of acquisition by the owner in a manner that reduces the fair market value of the property.
9. Prohibits a governmental entity from requiring the property owner to submit a land use application to remove, modify, vary or otherwise alter the application of the land use law to the owner’s property as a prerequisite to demanding or receiving just compensation.
10. Exempts the following land use laws from the just compensation requirement based on the diminution in value to those that:
· limit or prohibit a use or division of real property for the protection of the public’s health and safety, including fire and building codes, health and sanitation, solid or hazardous waste and pollution control.
· limit or prohibit a use or division of real property commonly and historically recognized as a public nuisance under common law.
· are required by federal law.
· limit or prohibit the use or division of a property for the purpose of housing dangerous sexual predators, selling illegal drugs, pornography or obscenity if the land use laws are consistent with the U.S. and Arizona Constitutions.
· establish locations for utility facilities.
· are enacted before the effective date of this act.
11. Requires the state or a political subdivision to demonstrate how enacting or enforcing a land use law is exempt for the just compensation requirement based on the diminution in value.
12. Provides the property owner the right to file suit for just compensation if the land use law continues to apply to the property more than 90 days after the owner make a written demand for just compensation to the state or political subdivision enacting or enforcing the land use law.
13. Entitles the owner to reasonable attorney fees, costs and expenses incurred if the owner prevails.
14. Requires any demand for landowner relief or any waiver that is granted in lieu of compensation to run with the land.
15. Specifies that just compensation based on diminution in value is in addition to any other remedy provided by law and is not intended to modify or replace other remedies.
16. Allows government entities and private property owners to reaching an agreement regarding any proposed action by the governmental entity.
Attorney Fees
17. Prohibits a property owner from being liable for the state’s or a political subdivision’s attorney fees or costs in any eminent domain action or action for diminution in value.
18. Requires the property owner to be awarded reasonable attorney fees, costs and expenses in every eminent domain action in which the taking is found to be not for a public use.
19. Allows the property to be awarded reasonable attorney fees in every case in which the amount offered by the state or a political subdivision was less than the amount ascertained by a jury or the court if a jury is waived by the property owner in an eminent domain action for the purpose of slum or blight clearance or redevelopment.
20. Allows a prevailing plaintiff in an action for just compensation that is based on diminution in value to be awarded reasonable attorney fees, costs and expenses.
Miscellaneous
21. Stipulates that if the statutory provisions contained in the Private Property Rights Protection Act conflict with any law, the Act controls.
22. Contains a severability clause.
23. Defines terms.
24. Contains findings and legislative purpose regarding private property rights and just compensation.
25. Requires the Secretary of State to submit the proposition to the voters at the next general election.
26. Becomes effective if approved by the voters and on proclamation of the Governor.
Amendments Adopted by Committee
· Adopted the strike everything amendment.
Senate Action
GOV 2/16/06 DPA/SE 4-3-0
NS/ac