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S.B. 117
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House Floor Amendments 2-16-2006 dd/rhr
This document includes House Committee Amendments incorporated into the bill on Fri,
Feb 10, 2006 at 9:27 AM by ddonat. -->
This document includes House Floor Amendments incorporated into the bill on Thu, Feb
16, 2006 at 1:58 PM by ddonat. -->
This document includes House Floor Amendments incorporated into the bill on Fri, Feb
17, 2006 at 10:23 AM by ddonat. -->
1
EMINENT DOMAIN AMENDMENTS
2
2006 GENERAL SESSION
3
STATE OF UTAH
4
Chief Sponsor: Howard A. Stephenson
5
House Sponsor:
David Ure
6
7
LONG TITLE
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General Description:
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This bill modifies provisions related to eminent domain.
10
Highlighted Provisions:
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This bill:
11a
H.
. expands the public uses for which eminent domain may be used to include bicycle paths
11b
and sidewalks adjacent to paved roads;
11c
. narrows the public uses for which local governments may acquire roads, streets, or alleys by
11d
eminent domain;
11e
. provides that the roads, streets, or alleys that local governments may acquire by eminent
11f
domain do not include trails, paths, or other ways for walking, hiking, bicycling, equestrian use, or
11g
other recreational uses;
. H
12
. requires the taking of property by a H. [
county, city, or town
] political subdivision .H
12a
to be approved by the
13
H. [
legislative
] governing .H body of the H. [
county, city, or town
] political subdivision .H ;
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. requires the governing body of a political subdivision intending to take property by
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eminent domain to provide written notice to property owners of each public meeting
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to approve the taking and allow property owners the right to be heard regarding the
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proposed taking;
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. modifies the duty to negotiate with a property owner and the duty to notify the
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property owner of certain rights and limitations with respect to an anticipated
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eminent domain action; and
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. clarifies that those duties apply to each person seeking to acquire property involving
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the potential use of eminent domain if the property cannot be acquired in a
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voluntary transaction.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
27
None
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House Floor Amendments 2-16-2006 dd/rhr
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House Committee Amendments 2-10-2006 dd/rhr
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Utah Code Sections Affected:
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AMENDS:
29a
H. 78-34-1, as last amended by Chapter 164, Laws of Utah 1981 .H
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78-34-4, as last amended by Chapter 161, Laws of Utah 1981
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78-34-4.5, as enacted by Chapter 223, Laws of Utah 2004
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Be it enacted by the Legislature of the state of Utah:
33a
H. Section 1. Section 78-34-1 is amended to read:
33b
78-34-1. Uses for which right may be exercised.
33c
Subject to the provisions of this chapter, the right of eminent domain may be exercised in
33d
behalf of the following public uses:
33e
(1) All public uses authorized by the Government of the United States.
33f
(2) Public buildings and grounds for the use of the state, and all other public uses authorized
33g
by the Legislature.
33h
(3) Public buildings and grounds for the use of any county, city or incorporated town, or board
33i
of education; reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water for the use
33j
of the inhabitants of any county or city or incorporated town, or for the draining of any county, city or
33k
incorporated town; the raising of the banks of streams, removing obstructions therefrom, and
33l
widening, deepening or straightening their channels; bicycle paths and sidewalks adjacent to paved
33m
roads; roads, streets and alleys
for public vehicular use, excluding trails, paths, or other ways for
33n
walking, hiking, bicycling, equestrian use, or other recreational uses
; and all other public uses
33o
for the benefit of any county, city or incorporated town, or the inhabitants thereof.
33p
(4) Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and
33q
turnpike roads, roads for transportation by traction engines or road locomotives, roads for logging or
33r
lumbering purposes, and railroads and street railways for public transportation.
33s
(5) Reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes for the
33t
supplying of persons, mines, mills, smelters or other works for the reduction of ores, with water for
33u
domestic or other uses, or for irrigation purposes, or for the draining and reclaiming of lands, or for
33v
the floating of logs and lumber on streams not navigable, or for solar evaporation ponds and other
33w
facilities for the recovery of minerals in solution.
33x
(6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to facilitate
33y
the milling, smelting or other reduction of ores, or the working of mines, quarries, coal mines or
33z
mineral deposits including minerals in solution; outlets, natural or otherwise, for the deposit or
33aa
conduct of tailings, refuse or water from mills, smelters or other works for the reduction of ores, or
33ab
from mines, quarries, coal mines or mineral deposits including minerals in solution; mill dams; gas, oil
33ac
or coal pipelines, tanks or reservoirs, including any subsurface stratum or formation in any land for
33ad
the underground storage of natural gas, and in connection therewith such other interests in
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33ae
property as may be required adequately to examine, prepare, maintain, and operate such underground
33af
natural gas storage facilities; and solar evaporation ponds and other facilities for the recovery of
33ag
minerals in solution; also any occupancy in common by the owners or possessors of different mines,
33ah
quarries, coal mines, mineral deposits, mills, smelters, or other places for the reduction of ores, or any
33ai
place for the flow, deposit or conduct of tailings or refuse matter.
33aj
(7) Byroads leading from highways to residences and farms.
33ak
(8) Telegraph, telephone, electric light and electric power lines, and sites for electric light and
33al
power plants.
33am
(9) Sewerage of any city or town, or of any settlement of not less than ten families, or of any
33an
public building belonging to the state, or of any college or university.
33ao
(10) Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and storing
33ap
water for the operation of machinery for the purpose of generating and transmitting electricity for
33aq
power, light or heat.
33ar
(11) Cemeteries and public parks.
33as
(12) Pipe lines for the purpose of conducting any and all liquids connected with the
33at
manufacture of beet sugar.
33au
(13) Sites for mills, smelters or other works for the reduction of ores and necessary to the
33av
successful operation thereof, including the right to take lands for the discharge and natural
33aw
distribution of smoke, fumes and dust therefrom, produced by the operation of such works; provided,
33ax
that the powers granted by this subdivision shall not be exercised in any county where the population
33ay
exceeds twenty thousand, or within one mile of the limits of any city or incorporated town; nor unless
33az
the proposed condemner has the right to operate by purchase, option to purchase or easement, at least
33ba
seventy-five per cent in value of land acreage owned by persons or corporations situated within a
33bb
radius of four miles from the mill, smelter or other works for the reduction of ores; nor beyond the
33bc
limits of said four-mile radius; nor as to lands covered by contracts, easements or agreements existing
33bd
between the condemner and the owner of land within said limit and providing for the operation of
33be
such mill, smelter or other works for the reduction of ores; nor until an action shall have been
33bf
commenced to restrain the operation of such mill, smelter or other works for the reduction
33bg
of ores.
.H
34
Section H. [
1
] 2 .H .
Section
78-34-4
is amended to read:
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78-34-4. Conditions precedent to taking.
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(1) Before property can be taken it must appear:
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[(1)] (a) that the use to which it is to be applied is a use authorized by law;
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[(2)] (b) that the taking is necessary to such use;
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[(3)] (c) that construction and use of all property sought to be condemned will
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commence within a reasonable time as determined by the court, after the initiation of
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proceedings under this chapter; and
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[(4)] (d) if already appropriated to some public use, that the public use to which it is to
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be applied is a more necessary public use.
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H. [
(2) Property may not be taken by a county, city, or town unless the legislative body of
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the county, city, or town approves the taking.
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(3)
] (2) .H (a) As used in this Subsection H. [
(3)
] (2) .H , "governing body" means:
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(i) for a county, city, or town, the legislative body of the county, city, or town; and
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(ii) for any other political subdivision of the state, the person or body with authority to
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govern the affairs of the political subdivision.
49a
H. (b) Property may not be taken by a political subdivision of the state unless the
49b
governing body of the political subdivision approves the taking.
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[
(b)
] (c) .H Before H. [
voting to approve the taking of property
] taking a final vote to
50a1
approve
50a
the filing of an eminent domain action .H , the governing body of each
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political subdivision intending to take property shall provide written notice to each owner of
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property to be taken of each public meeting of the political subdivision's governing body at
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which a vote on the proposed taking is expected to occur and allow the property owner the
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opportunity to be heard on the proposed taking.
54a
H. [
(c)
] (d) The requirement under Subsection (3)(b) to provide notice to a property
54b1
owner
54b
is satisfied by the governing body mailing the written notice to the property owner:
54c
(i) at the owner's address as shown on the records of the county assessor's office; and
54d
(ii) at least ten business days before the public meeting. .H
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Section H. [
2
] 3 .H .
Section
78-34-4.5
is amended to read:
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78-34-4.5. Negotiation and disclosure required before eminent domain action.
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Each person who seeks to acquire property by eminent domain or who intends to use
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eminent domain to acquire property if the property cannot be acquired in a voluntary
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transaction shall:
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(1) before H. [
voting
] taking a final vote .H to approve the H. [
taking of property or
60a
initiating
] filing of .H an eminent domain
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action, make a reasonable effort to negotiate with the property owner for the purchase of the
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property; and
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(2) as early in the negotiation process under Subsection (1) as practicable but no later
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than 14 days before [the] H. [
voting to approve the taking of property or
] a final vote is taken to
64a
approve the .H filing H. [
[
] of [
]
] .H an eminent
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domain action, unless the court for good cause allows a shorter period before filing:
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(a) advise the property owner of the owner's rights to mediation and arbitration under
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Section
78-34-21
, including the name and current telephone number of the property rights
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ombudsman, established in Section
63-34-13
; and
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(b) provide the property owner a written statement explaining that oral representations
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or promises made during the negotiation process are not binding upon the person seeking to
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acquire the property by eminent domain.
Legislative Review Note
as of 10-18-05 11:27 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.