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S.B. 117 Enrolled
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EMINENT DOMAIN AMENDMENTS
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Howard A. Stephenson
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House Sponsor:
David Ure
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LONG TITLE
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General Description:
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This bill modifies provisions related to eminent domain.
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Highlighted Provisions:
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This bill:
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. expands the public uses for which eminent domain may be used to include bicycle
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paths and sidewalks adjacent to paved roads;
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. narrows the public uses for which local governments may acquire roads, streets, or
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alleys by eminent domain;
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. provides that the roads, streets, or alleys that local governments may acquire by
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eminent domain do not include trails, paths, or other ways for walking, hiking,
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bicycling, equestrian use, or other recreational uses;
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. requires the taking of property by a political subdivision to be approved by the
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governing body of the political subdivision;
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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:
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None
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Utah Code Sections Affected:
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AMENDS:
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78-34-1, as last amended by Chapter 164, Laws of Utah 1981
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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:
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Section 1.
Section
78-34-1
is amended to read:
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78-34-1. Uses for which right may be exercised.
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Subject to the provisions of this chapter, the right of eminent domain may be exercised
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in behalf of the following public uses:
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(1) All public uses authorized by the Government of the United States.
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(2) Public buildings and grounds for the use of the state, and all other public uses
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authorized by the Legislature.
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(3) Public buildings and grounds for the use of any county, city or incorporated town,
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or board of education; reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting
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water for the use of the inhabitants of any county or city or incorporated town, or for the
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draining of any county, city or incorporated town; the raising of the banks of streams, removing
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obstructions therefrom, and widening, deepening or straightening their channels; bicycle paths
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and sidewalks adjacent to paved roads; roads, streets and alleys for public vehicular use,
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excluding trails, paths, or other ways for walking, hiking, bicycling, equestrian use, or other
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recreational uses; and all other public uses for the benefit of any county, city or incorporated
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town, or the inhabitants thereof.
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(4) Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank
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and turnpike roads, roads for transportation by traction engines or road locomotives, roads for
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logging or lumbering purposes, and railroads and street railways for public transportation.
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(5) Reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes
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for the supplying of persons, mines, mills, smelters or other works for the reduction of ores,
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with water for domestic or other uses, or for irrigation purposes, or for the draining and
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reclaiming of lands, or for the floating of logs and lumber on streams not navigable, or for solar
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evaporation ponds and other facilities for the recovery of minerals in solution.
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(6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to
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facilitate the milling, smelting or other reduction of ores, or the working of mines, quarries,
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coal mines or mineral deposits including minerals in solution; outlets, natural or otherwise,
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for the deposit or conduct of tailings, refuse or water from mills, smelters or other works for
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the reduction of ores, or from mines, quarries, coal mines or mineral deposits including
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minerals in solution; mill dams; gas, oil or coal pipelines, tanks or reservoirs, including any
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subsurface stratum or formation in any land for the underground storage of natural gas, and in
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connection therewith such other interests in property as may be required adequately to
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examine, prepare, maintain, and operate such underground natural gas storage facilities; and
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solar evaporation ponds and other facilities for the recovery of minerals in solution; also any
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occupancy in common by the owners or possessors of different mines, quarries, coal mines,
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mineral deposits, mills, smelters, or other places for the reduction of ores, or any place for the
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flow, deposit or conduct of tailings or refuse matter.
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(7) Byroads leading from highways to residences and farms.
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(8) Telegraph, telephone, electric light and electric power lines, and sites for electric
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light and power plants.
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(9) Sewerage of any city or town, or of any settlement of not less than ten families, or
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of any public building belonging to the state, or of any college or university.
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(10) Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and
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storing water for the operation of machinery for the purpose of generating and transmitting
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electricity for power, light or heat.
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(11) Cemeteries and public parks.
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(12) Pipe lines for the purpose of conducting any and all liquids connected with the
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manufacture of beet sugar.
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(13) Sites for mills, smelters or other works for the reduction of ores and necessary to
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the successful operation thereof, including the right to take lands for the discharge and natural
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distribution of smoke, fumes and dust therefrom, produced by the operation of such works;
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provided, that the powers granted by this subdivision shall not be exercised in any county
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where the population exceeds twenty thousand, or within one mile of the limits of any city or
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incorporated town; nor unless the proposed condemner has the right to operate by purchase,
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option to purchase or easement, at least seventy-five per cent in value of land acreage owned by
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persons or corporations situated within a radius of four miles from the mill, smelter or other
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works for the reduction of ores; nor beyond the limits of said four-mile radius; nor as to lands
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covered by contracts, easements or agreements existing between the condemner and the owner
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of land within said limit and providing for the operation of such mill, smelter or other works
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for the reduction of ores; nor until an action shall have been commenced to restrain the
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operation of such mill, smelter or other works for the reduction of ores.
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Section 2.
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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(2) (a) As used in this Subsection (2), "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.
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(b) Property may not be taken by a political subdivision of the state unless the
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governing body of the political subdivision approves the taking.
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(c) Before taking a final vote to approve the filing of an eminent domain action, the
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governing body of each political subdivision intending to take property shall provide written
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notice to each owner of property to be taken of each public meeting of the political
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subdivision's governing body at which a vote on the proposed taking is expected to occur and
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allow the property owner the opportunity to be heard on the proposed taking.
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(d) The requirement under Subsection (2)(c) to provide notice to a property owner is
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satisfied by the governing body mailing the written notice to the property owner:
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(i) at the owner's address as shown on the records of the county assessor's office; and
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(ii) at least ten business days before the public meeting.
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Section 3.
Section
78-34-4.5
is amended to read:
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78-34-4.5. Negotiation and disclosure required before voting to approve an
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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 [initiating] taking a final vote to approve the filing of 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 a final vote is taken to approve the filing of an eminent domain action,
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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.
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