HF 1901

2nd Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to eminent domain; changing certain attorney 
  1.3             fee requirements and provisions for taking for public 
  1.4             purposes; amending Minnesota Statutes 2002, section 
  1.5             117.075; Minnesota Statutes 2003 Supplement, section 
  1.6             117.036, by adding a subdivision. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 2003 Supplement, section 
  1.9   117.036, is amended by adding a subdivision to read: 
  1.10     Subd. 4.  [ATTORNEY FEES.] In addition to other fees or 
  1.11  expenses authorized by this section, the owner may be awarded 
  1.12  reasonable attorney fees if the final judgment or award for 
  1.13  damages, as determined at any level in the eminent domain 
  1.14  process, exceeds the last written offer of compensation made by 
  1.15  the condemning authority prior to the filing of the petition or 
  1.16  the amount deposited with the court by 20 percent or more. 
  1.17     Sec. 2.  Minnesota Statutes 2002, section 117.075, is 
  1.18  amended to read: 
  1.19     117.075 [COURT TO APPOINT COMMISSIONERS.] 
  1.20     Subdivision 1.  [HEARING ON NECESSITY, PURPOSE.] Upon proof 
  1.21  being filed of the service of such notice, the court, at the 
  1.22  time and place therein fixed or to which the hearing may be 
  1.23  adjourned, shall hear all competent evidence offered for or 
  1.24  against the granting of the petition, regulating the order of 
  1.25  proof as it may deem best.  
  1.26     Subd. 2.  [EVIDENCE.] Except as provided in subdivision 3, 
  2.1   if the proposed taking shall appear to be necessary and such as 
  2.2   is authorized by law, the court by an order shall appoint three 
  2.3   disinterested commissioners, and at least two alternates, to 
  2.4   ascertain and report the amount of damages that will be 
  2.5   sustained by the several owners on account of such taking.  
  2.6      Subd. 3.  [EVIDENCE; PROPERTY TAKEN FOR TRANSFER TO ENTITY 
  2.7   WITHOUT TAKING AUTHORITY.] (a) If all or a portion of the 
  2.8   property proposed to be taken may be sold, leased, licensed, 
  2.9   transferred, or otherwise conveyed to a person or entity without 
  2.10  the power of eminent domain, the court shall not authorize the 
  2.11  taking unless the petitioner proves by a preponderance of the 
  2.12  evidence that the taking is reasonably necessary, the taking is 
  2.13  authorized by law and is for a public, not private, purpose.  In 
  2.14  the event that the court determines that a taking is not 
  2.15  reasonably necessary, is not authorized by law, or is not for a 
  2.16  public purpose, the owner may recover from the petitioner 
  2.17  reasonable costs and expenses including attorney fees.  
  2.18     (b) This subdivision does not apply to public service 
  2.19  corporations, public utilities, gas, electric, telephone or 
  2.20  cable communication companies, cooperative associations, natural 
  2.21  gas pipelines, and crude oil or petroleum products pipelines 
  2.22  that have the right of eminent domain under federal or Minnesota 
  2.23  law.  This subdivision also does not apply to municipal 
  2.24  utilities, municipalities operating municipally owned utilities, 
  2.25  or municipal power agencies when the exercise of the powers of 
  2.26  eminent domain are for the acquisition of property to be used 
  2.27  exclusively for utility operations. 
  2.28     Subd. 4.  [COMMISSIONER QUALIFICATIONS.] Before appointing 
  2.29  a commissioner, the court shall inquire whether each prospective 
  2.30  commissioner has any relationship, business or otherwise, to any 
  2.31  of the parties in the proceeding, or any interest in the 
  2.32  proceeding which may constitute a conflict of interest, or which 
  2.33  may create the appearance of impropriety should that person be 
  2.34  appointed.  Responses to this inquiry must be either written or 
  2.35  on the record and made available by the court to any party in 
  2.36  the proceeding before and after appointment.  No person who 
  3.1   might have difficulty in rendering an unbiased decision may be 
  3.2   appointed to serve.  The court, in its discretion, may appoint 
  3.3   one registered, practicing attorney to the commission who is 
  3.4   knowledgeable in eminent domain matters.  All other 
  3.5   commissioners appointed must be persons actively engaged in the 
  3.6   occupation of real estate sales or real estate appraising or 
  3.7   persons knowledgeable in real estate values.  
  3.8      Subd. 5.  [FIRST MEETING; OATH.] The order shall fix the 
  3.9   time and place of the first meeting of the three commissioners 
  3.10  and prescribe their compensation.  At the first meeting at the 
  3.11  office of the court administrator of district court the 
  3.12  appointees must be sworn by the court administrator or an 
  3.13  authorized deputy and shall take and sign the following oath 
  3.14  before assuming their duties as commissioners: 
  3.15                       (TITLE OF PROCEEDING) 
  3.16     .................................  does swear under penalty 
  3.17     of perjury as follows: 
  3.18     I will faithfully and justly perform to the best of my 
  3.19     ability, all the duties of the office and trust which I now 
  3.20     assume as commissioner in the above entitled proceeding.  I 
  3.21     further swear that, except as disclosed in writing or on 
  3.22     the record, I have no interest in any of the lands in the 
  3.23     above proceeding or any present or past relationship, 
  3.24     business or personal, with any of the parties to the above 
  3.25     proceeding or any other actual or potential conflict of 
  3.26     interest, and that I will render fair and impartial 
  3.27     decisions, so help me God. 
  3.28     Subd. 6.  [COURT ORDER MAY LIMIT ACQUISITION.] The order 
  3.29  may, in the discretion of the court, limit the title or easement 
  3.30  to be acquired by the petitioner by defining the rights and 
  3.31  privileges which the owner of any of the lands may exercise 
  3.32  therein in subordination to the public uses to which it is 
  3.33  appropriated.  
  3.34     Subd. 7.  [REPLACEMENT OF COMMISSIONER.] In case any 
  3.35  commissioner fails to act or fails to meet the qualifications 
  3.36  required by this section, the court without further notice may 
  4.1   appoint another in that commissioner's place.  
  4.2      Subd. 8.  [APPLICATION TO BE A COMMISSIONER.] The court 
  4.3   administrator of court in each county shall post in the 
  4.4   courthouse in a prominent place a notice that a qualified person 
  4.5   may apply to have the person's name placed upon a list of 
  4.6   potential commission appointees for eminent domain proceedings. 
  4.7   The notice must contain the language of the oath which the 
  4.8   commissioners are required to take upon appointment and shall 
  4.9   list the other qualifications set forth in this section.  The 
  4.10  court shall give due consideration to the names appearing on the 
  4.11  list, but is not bound to make appointments from the list. 
  4.12     Sec. 3.  [EFFECTIVE DATE.] 
  4.13     This act is effective the day following final enactment.