HF 1618

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to eminent domain; changing certain attorney
fee requirements and provisions for taking for public
purposes; amending Minnesota Statutes 2004, sections
117.036, by adding a subdivision; 117.075.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 117.036, is
amended by adding a subdivision to read:

new text begin Subd. 4. new text end

new text begin Attorney fees. new text end

new text begin In addition to other fees or
expenses authorized by this section, the owner may be awarded
reasonable attorney fees if the final judgment or award for
damages, as determined at any level in the eminent domain
process, exceeds the last written offer of compensation made by
the condemning authority prior to the filing of the petition or
the amount deposited with the court by 20 percent or more.
new text end

Sec. 2.

Minnesota Statutes 2004, section 117.075, is
amended to read:

117.075 HEARING; COMMISSIONERS; ORDER FOR TAKING.

Subdivision 1.

Hearing on deleted text begin taking deleted text end new text begin necessity, purpose new text end .

Upon proof being filed of the service of such notice, the court,
at the time and place therein fixed or to which the hearing may
be adjourned, shall hear all competent evidence offered for or
against the granting of the petition, regulating the order of
proof as it may deem best.

Subd. 2.

deleted text begin appoint commissioners for damages
deleted text end new text begin evidence new text end .

new text begin Except as provided in subdivision 2a, new text end if the proposed
taking shall appear to be necessary and such as is authorized by
law, the court by an order shall appoint three disinterested
commissioners, and at least two alternates, to ascertain and
report the amount of damages that will be sustained by the
several owners on account of such taking.

new text begin Subd. 2a. new text end

new text begin Evidence; property taken for transfer to entity
without taking authority. new text end

new text begin (a) If all or a portion of the
property proposed to be taken may be sold, leased, licensed,
transferred, or otherwise conveyed to a person or entity without
the power of eminent domain, the court shall not authorize the
taking unless the petitioner proves by a preponderance of the
evidence that the taking is reasonably necessary, the taking is
authorized by law and is for a public, not private, purpose. In
the event that the court determines that a taking is not
reasonably necessary, is not authorized by law, or is not for a
public purpose, the owner may recover from the petitioner
reasonable costs and expenses including attorney fees.
new text end

new text begin (b) This subdivision does not apply to public service
corporations, public utilities, gas, electric, telephone or
cable communication companies, cooperative associations, natural
gas pipelines, and crude oil or petroleum products pipelines
that have the right of eminent domain under federal or Minnesota
law. This subdivision also does not apply to municipal
utilities, municipalities operating municipally owned utilities,
or municipal power agencies when the exercise of the powers of
eminent domain are for the acquisition of property to be used
exclusively for utility operations.
new text end

Subd. 3.

Commissioner qualifications.

Before appointing
a commissioner, the court shall inquire whether each prospective
commissioner has any relationship, business or otherwise, to any
of the parties in the proceeding, or any interest in the
proceeding which may constitute a conflict of interest, or which
may create the appearance of impropriety should that person be
appointed. Responses to this inquiry must be either written or
on the record and made available by the court to any party in
the proceeding before and after appointment. No person who
might have difficulty in rendering an unbiased decision may be
appointed to serve. The court, in its discretion, may appoint
one registered, practicing attorney to the commission who is
knowledgeable in eminent domain matters. All other
commissioners appointed must be persons actively engaged in the
occupation of real estate sales or real estate appraising or
persons knowledgeable in real estate values.

Subd. 4.

First meeting; pay; oath.

The order shall fix
the time and place of the first meeting of the three
commissioners and prescribe their compensation. At the first
meeting at the office of the court administrator of district
court the appointees must be sworn by the court administrator or
an authorized deputy and shall take and sign the following oath
before assuming their duties as commissioners:

(TITLE OF PROCEEDING)

................................. does swear under penalty
of perjury as follows:

I will faithfully and justly perform to the best of my
ability, all the duties of the office and trust which I now
assume as commissioner in the above entitled proceeding. I
further swear that, except as disclosed in writing or on
the record, I have no interest in any of the lands in the
above proceeding or any present or past relationship,
business or personal, with any of the parties to the above
proceeding or any other actual or potential conflict of
interest, and that I will render fair and impartial
decisions, so help me God.

Subd. 5. [COURT MAY LIMIT TAKER'S OWNERSHIP.] The order
may, in the discretion of the court, limit the title or easement
to be acquired by the petitioner by defining the rights and
privileges which the owner of any of the lands may exercise
therein in subordination to the public uses to which it is
appropriated.

Subd. 6.

Replacement commissioner.

In case any
commissioner fails to act or fails to meet the qualifications
required by this section, the court without further notice may
appoint another in that commissioner's place.

Subd. 7.

deleted text begin post list of would be commissioners deleted text end new text begin application
to be a commissioner new text end .

The court administrator of court in each
county shall post in the courthouse in a prominent place a
notice that a qualified person may apply to have the person's
name placed upon a list of potential commission appointees for
eminent domain proceedings. The notice must contain the language
of the oath which the commissioners are required to take upon
appointment and shall list the other qualifications set forth in
this section. The court shall give due consideration to the
names appearing on the list, but is not bound to make
appointments from the list.

Sec. 3. new text begin EFFECTIVE DATE.
new text end

new text begin This act is effective the day following final enactment.
new text end