HF 2201

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

A bill for an act
relating to eminent domain; classifying certain
appraisals as private or nonpublic data; amending
provisions relating to appraisals; specifying when a
party may challenge public purpose, necessity, or
authority; clarifying relocation benefits; specifying
procedures for use of eminent domain to acquire
property for transfer to nongovernmental entities
without the power of eminent domain; amending
Minnesota Statutes 2004, sections 13.44, subdivision
3; 117.036; 117.055; 117.075, by adding a subdivision;
117.52, subdivision 1; 117.521, subdivision 1; 163.12,
subdivisions 1a, 1b; 469.012, subdivision 1g;
proposing coding for new law in Minnesota Statutes,
chapter 469.

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

Section 1.

Minnesota Statutes 2004, section 13.44,
subdivision 3, is amended to read:

Subd. 3.

Real property; appraisal data.

(a)
[CONFIDENTIAL OR PROTECTED NONPUBLIC DATA.] Estimated or
appraised values of individual parcels of real property deleted text begin which
deleted text end new text begin that new text end are made by personnel of the state deleted text begin , its agencies and
departments deleted text end , or a political subdivision or by independent
appraisers acting for the state, deleted text begin its agencies and departments,
deleted text end or a political subdivision for the purpose of selling or
acquiring land through purchase or condemnation are classified
as confidential data on individuals or protected nonpublic data.

(b) [PRIVATE OR NONPUBLIC DATA.] new text begin Appraised values of
individual parcels of real property that are made by appraisers
working for owners, as defined in section 117.025, subdivision
3, who have received an offer to purchase their property from
the state or a political subdivision are classified as private
data on individuals or nonpublic data.
new text end

new text begin (c) new text end [PUBLIC DATA.] The data made confidential or protected
nonpublic deleted text begin by the provisions of deleted text end new text begin under new text end paragraph (a) deleted text begin shall deleted text end new text begin or made
private or nonpublic under paragraph (b) new text end become public upon the
occurrence of any of the following:

(1) deleted text begin the negotiating parties exchange appraisals;
deleted text end

deleted text begin (2) deleted text end the data are submitted to a court new text begin - new text end appointed
condemnation commissioner;

deleted text begin (3) deleted text end new text begin (2) new text end the data are presented in court in condemnation
proceedings; new text begin or
new text end

deleted text begin (4) deleted text end new text begin (3) new text end the negotiating parties enter into an agreement for
the purchase and sale of the property deleted text begin ; or
deleted text end

deleted text begin (5) the data are submitted to the owner under section
117.036 deleted text end .

Sec. 2.

Minnesota Statutes 2004, section 117.036, is
amended to read:

117.036 APPRAISAL AND NEGOTIATION REQUIREMENTS APPLICABLE
TO ACQUISITION OF PROPERTY FOR TRANSPORTATION PURPOSES.

Subdivision 1.

Application.

This section applies to the
acquisition of property for public highways, streets, roads,
alleys, airports, mass transit facilities, or for other
transportation facilities or purposes.

Subd. 2.

Appraisal.

(a) Before commencing an eminent
domain proceeding under this chapter, the acquiring authority
must obtain at least one appraisal for the property proposed to
be acquired. In making the appraisal, the appraiser must confer
with one or more of the new text begin fee new text end owners new text begin or contract purchasers new text end of the
property, if reasonably possible. deleted text begin At least deleted text end new text begin Notwithstanding
section 13.44 or any other law to the contrary, the acquiring
authority must provide the fee owner or contract purchaser with
a copy of the appraisal at the time an offer is made, but no
later than new text end 20 days before presenting a petition under section
117.055, deleted text begin the acquiring authority must provide the owner with a
copy of the appraisal deleted text end and inform the deleted text begin owner of the owner's deleted text end new text begin fee
owner or contract purchaser of the new text end right to obtain an appraisal
under this section. new text begin Upon request, the acquiring authority must
make available to the fee owner or contract purchaser all
appraisals of the property.
new text end

(b) The new text begin fee new text end owner new text begin or contract purchaser new text end may obtain an
appraisal by a qualified appraiser of the property proposed to
be acquired. The new text begin fee new text end owner new text begin or contract purchaser new text end is entitled to
reimbursement for the reasonable costs of the appraisal from the
acquiring authority up to a maximum of $1,500 deleted text begin within 30 days
after the deleted text end new text begin , provided that the fee new text end owner new text begin or contract purchaser
new text end submits to the acquiring authority the information necessary for
reimbursement deleted text begin , provided that the owner does so deleted text end within deleted text begin 60 deleted text end new text begin 90 new text end days
after deleted text begin the owner receives deleted text end new text begin receiving new text end the appraisal from the
authority under paragraph (a) new text begin and at least 30 days before a
condemnation commissioners' hearing. The acquiring authority
must pay the reimbursement to the fee owner or contract
purchaser within 30 days after receiving a copy of the appraisal
and the reimbursement information. Upon agreement between the
acquiring authority and either the fee owner or contract
purchaser, the acquiring authority may pay the reimbursement up
to $1,500 directly to the appraiser new text end .

Subd. 3.

Negotiation.

In addition to the appraisal
requirements under subdivision 2, before commencing an eminent
domain proceeding, the acquiring authority must make a good
faith attempt to negotiate personally with the new text begin fee new text end owner new text begin or
contract purchaser new text end of the property in order to acquire the
property by direct purchase instead of the use of eminent domain
proceedings. In making this negotiation, the acquiring
authority must consider the appraisals in its possession new text begin ,
including any appraisal obtained and furnished by the fee owner
or contract purchaser if available, new text end and other information that
may be relevant to a determination of damages under this chapter.

new text begin Subd. 4. new text end [CONDEMNATION COMMISSIONERS'
HEARING.] new text begin Notwithstanding section 13.44, an appraisal must not
be used or considered in a condemnation commissioners' hearing,
nor may the appraiser who prepared the appraisal testify, unless
a copy of the appraiser's written report is provided to the
opposing party at least five days before the hearing.
new text end

Sec. 3.

Minnesota Statutes 2004, section 117.055, is
amended to read:

117.055 PETITION AND NOTICE.

new text begin Subdivision 1. new text end

new text begin Petition. new text end

In all cases a petition,
describing the desired land, stating by whom and for what
purposes it is proposed to be taken, and giving the names of all
persons appearing of record or known to the petitioner to be the
owners thereof shall be presented to the district court of the
county in which the land is situated praying for the appointment
of commissioners to appraise the damages which may be occasioned
by such taking.

new text begin Subd. 2. new text end

new text begin Notice. new text end

Notice of the objects of the petition
and of the time and place of presenting the same shall be served
at least 20 days before such time of presentation upon all
persons named in the petition as owners as defined in section
117.025, subdivision 3, and upon all occupants of such land in
the same manner as a summons in a civil action. new text begin The notice must
state that a party wishing to challenge the public purpose,
necessity, or authority for a taking must appear at the court
hearing and state the objection; that failure to appear and
object is deemed a waiver of any objection; and that a court
order approving the public purpose, necessity, and authority for
the taking is final unless an appeal is brought within 60 days.
new text end If any such owner be not a resident of the state, or the owner's
place of residence be unknown to the petitioner, upon the filing
of an affidavit of the petitioner or the petitioner's agent or
attorney, stating that the petitioner believes that such owner
is not a resident of the state, and that the petitioner has
mailed a copy of the notice to the owner at the owner's place of
residence, or that after diligent inquiry the owner's place of
residence cannot be ascertained by the affiant, then service may
be made upon such owner by three weeks' published notice. If
the state be an owner, the notice shall be served upon the
attorney general. Any owner not served as herein provided shall
not be bound by such proceeding except upon voluntarily
appearing therein. Any owner shall be furnished a right-of-way
map or plat of all that part of land to be taken upon written
demand, provided that the petitioner shall have ten days from
the receipt of the demand within which to furnish the same. Any
plans or profiles which the petitioner has shall be made
available to the owner for inspection.

Sec. 4.

Minnesota Statutes 2004, section 117.075, is
amended by adding a subdivision to read:

new text begin Subd. 1a. new text end

new text begin Appeal of order. new text end

new text begin A party wishing to challenge
the public purpose, necessity, or authority for a taking must
appear at the court hearing required by subdivision 1 and state
the objection. Failure to appear and object is deemed a waiver
of any objection. A court order approving the public purpose,
necessity, and authority for the taking is final unless an
appeal is brought within 60 days.
new text end

Sec. 5.

Minnesota Statutes 2004, section 117.52,
subdivision 1, is amended to read:

Subdivision 1.

Lack of federal funding.

In all
acquisitions undertaken by any acquiring authority and in all
voluntary rehabilitation carried out by a person pursuant to
acquisition or as a consequence thereof, in which, due to the
lack of federal financial participation, relocation assistance,
services, payments and benefits under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970,
United States Code, title 42, sections 4601 to 4655, as amended
by the Surface Transportation and Uniform Relocation Assistance
Act of 1987, Statutes at Large, volume 101, pages 246 to 256
(1987), are not available, the acquiring authority, as a cost of
acquisition, shall provide new text begin to displaced persons new text end all relocation
assistance, services, payments and benefits required by the
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended by the Surface Transportation
and Uniform Relocation Assistance Act of 1987, and those
regulations adopted pursuant thereto, and either (1) in effect
as of July 1, 1988, or (2) becoming effective after July 1,
1988, following a public hearing and comment. Comments received
by an acquiring authority within 30 days after the public
hearing must be reviewed and a written response provided to the
individual or organization who initiated the comment. The
response and comments may be addressed in another public hearing
by the acquiring authority before approval.

Sec. 6.

Minnesota Statutes 2004, section 117.521,
subdivision 1, is amended to read:

Subdivision 1.

Waiver.

Any owner-occupant of property
new text begin who is a displaced person and new text end who (a) prior to any action by the
acquiring authority indicating an intent to acquire the property
whether or not the owner-occupant is willing to sell, requests
that the property be acquired through negotiation, or (b) has
clearly shown an intent to sell the property on the public
market prior to any inquiry or action by the acquiring
authority, may voluntarily waive any relocation assistance,
services, payments and benefits, for which eligible under this
chapter by signing a waiver agreement specifically describing
the type and amounts of relocation assistance, services,
payments and benefits for which eligible, separately listing
those being waived, and stating that the agreement is voluntary
and not made under any threat of acquisition by eminent domain
by the acquiring authority. Prior to execution of the waiver
agreement by the owner-occupant, the acquiring authority shall
explain the contents thereof to the owner-occupant.

Any waiver not voluntarily agreed to is invalid, and the
burden of proof shall be upon the acquiring authority to show
that the agreement was entered into voluntarily. A statement at
trial by a witness not involved in the acquisition of the
property, that the contents of the waiver agreement were
explained to the owner-occupant in a manner understandable to
the owner-occupant, describing the method of explanation, that
the owner-occupant appeared to understand the terms and
conditions of the waiver agreement, that no express or implied
threats of taking the property by eminent domain, or any other
threats intended to induce the owner-occupant to waive
relocation assistance benefits, were made to the owner-occupant
by any employee or official of the acquiring authority
throughout the entire process of acquisition of the property,
and that the owner-occupant appeared to voluntarily enter into
the agreement, shall, unless decided otherwise by the court,
shift the burden of proof to the person claiming that the
agreement was not entered into voluntarily.

Sec. 7.

Minnesota Statutes 2004, section 163.12,
subdivision 1a, is amended to read:

Subd. 1a.

Petition, notice, and access to information.

(a) Upon passage of the resolution specified in section 163.11,
subdivision 2, a petition must be presented to the district
court of the county in which the land is located. The petition
must describe each tract of land through which the highway
passes, state the purposes for which the land is proposed to be
taken, and list the names of all persons appearing of record or
known to the county to be the landowners.

(b) Notice of the objects of the petition and of the time
and place of presenting the notice must be served, together with
a copy of the resolution, upon each occupant of each tract of
land through which the highway passes at least 20 days before
the hearing under subdivision 1b. If an owner is not a resident
of the state, or the owner's place of residence is unknown to
the county, service may be made by three weeks' published notice
following the filing of an affidavit on behalf of the county by
the county's agent or attorney stating that the county:

(1) believes that the owner is not a resident of the state;
and

(2) has either mailed a copy of the notice to the owner at
the owner's last known residence address or, after diligent
inquiry, the owner's place of residence cannot be ascertained by
the county.

If the state is an owner, the notice must be served upon the
attorney general. An owner not served as provided in this
subdivision is not bound by the proceeding, except if the owner
voluntarily appears in the proceeding.

(c) Within ten days of an owner's demand, the owner must be
furnished a right-of-way map or plat of all that part of the
owner's land to be taken. Any applicable plans or profiles that
the county possesses must be made available to the owner for
inspection.

new text begin (d) The notice must state that a party wishing to challenge
the public purpose, necessity, or authority for the taking must
appear at the court hearing and state the objection; that
failure to appear and object is deemed a waiver of any
objection; and that a court order approving the public purpose,
necessity, and authority for the taking is final unless an
appeal is brought within 60 days.
new text end

Sec. 8.

Minnesota Statutes 2004, section 163.12,
subdivision 1b, is amended to read:

Subd. 1b.

Finding of necessity.

When proof of service of
the notice required in subdivision 1a is filed with the court,
the court shall hear all competent evidence offered for or
against granting the petition at the time and place fixed in the
notice or otherwise set by the court. On finding that the
proposed taking is necessary and authorized by law the court
shall order the proceedings to commence pursuant to the
remaining provisions of this section. new text begin The court order finding
the taking necessary and authorized by law is a final order and
is appealable, if at all, within 60 days from its date.
new text end

Sec. 9.

Minnesota Statutes 2004, section 469.012,
subdivision 1g, is amended to read:

Subd. 1g.

Get property; eminent domain.

(a) An authority
may, within its area of operation, acquire real or personal
property or any interest therein by gifts, grant, purchase,
exchange, lease, transfer, bequest, devise, or otherwise, and by
the exercise of the power of eminent domain, in the manner
provided by chapter 117, acquire real property which it may deem
necessary for its purposes, after the adoption by it of a
resolution declaring that the acquisition of the real property
is necessary:

(1) to eliminate one or more of the conditions found to
exist in the resolution adopted pursuant to section 469.003 or
to provide decent, safe, and sanitary housing for persons of low
and moderate income; or

(2) to carry out a redevelopment project.

(b) Real property needed or convenient for a project may be
acquired by the authority for the project by condemnation
pursuant to this section new text begin and section 469.401 new text end .

(c) deleted text begin Prior to adoption of a resolution authorizing
acquisition of property by condemnation, the governing body of
the authority must hold a public hearing on the proposed
acquisition after published notice in a newspaper of general
circulation in the municipality, which must be made at least one
time not less than ten days nor more than 30 days prior to the
date of the hearing. The notice must reasonably describe the
property to be acquired and state that the purpose of the
hearing is to consider acquisition by exercise of the
authority's powers of eminent domain. Not less than ten days
before the hearing, notice of the hearing must also be mailed to
the owner of each parcel proposed to be acquired, but failure to
give mailed notice or any defects in the notice does not
invalidate the acquisition. For the purpose of giving mailed
notice, owners are determined in accordance with section
429.031, subdivision 1, paragraph (a).
deleted text end

deleted text begin (d) deleted text end Property acquired by condemnation under this section
may include any property devoted to a public use, whether or not
held in trust, notwithstanding that the property may have been
previously acquired by condemnation or is owned by a public
utility corporation, because the public use in conformity with
the provisions of sections 469.001 to 469.047 shall be deemed a
superior public use. Property devoted to a public use may be so
acquired only if the governing body of the municipality has
approved its acquisition by the authority.

deleted text begin (e) deleted text end new text begin (d) new text end An award of compensation shall not be increased by
reason of any increase in the value of the real property caused
by the assembly, clearance or reconstruction, or proposed
assembly, clearance or reconstruction for the purposes of
sections 469.001 to 469.047 of the real property in an area.

Sec. 10.

new text begin [469.401] ACQUISITION BY EMINENT DOMAIN UNDER
THIS CHAPTER.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin This section applies to the
exercise of eminent domain powers by a government entity under
this chapter where the property interest to be acquired by
eminent domain is intended to be sold, leased, transferred, or
otherwise conveyed to a person or nongovernmental entity without
the power of eminent domain.
new text end

new text begin Subd. 2. new text end

new text begin Public hearing and notice required. new text end

new text begin Prior to
adoption of a resolution authorizing the use of eminent domain,
the governing body of the government entity must hold a public
hearing on the proposed acquisition after published notice in a
newspaper of general circulation in the government entity's
jurisdiction, which must be made at least one time not less than
two weeks nor more than 60 days prior to the date of the
hearing. The notice must reasonably describe the property
interest to be acquired, state that the purpose of the hearing
is to consider acquisition by eminent domain, state that
comments may be submitted orally at the hearing or in writing
prior to or at the hearing, and specify an address to which
written comments may be mailed. Not less than two weeks before
the hearing, notice of the hearing must also be mailed to the
owner of each parcel proposed to be acquired, but defects in the
notice do not invalidate the acquisition. For the purpose of
giving mailed notice, owners are determined in accordance with
section 429.031, subdivision 1, paragraph (a). The resolution
authorizing the use of eminent domain must not be adopted at the
same meeting or on the same day as the public hearing.
new text end

new text begin Subd. 3. new text end

new text begin Resolution. new text end

new text begin The resolution authorizing the use
of eminent domain must:
new text end

new text begin (1) identify and describe the public benefits that are
known or expected to result from the program or project for
which the property interest is proposed to be acquired;
new text end

new text begin (2) identify and describe the private benefits that are
known or expected to result from the anticipated conveyance of
the property interest proposed to be acquired;
new text end

new text begin (3) summarize and respond to any oral comments made at the
public hearing or written comments received at or prior to the
public hearing; and
new text end

new text begin (4) address how the acquisition of the property interest
serves one or more identified public purposes and why the
acquisition of the property is reasonably necessary to
accomplish those purposes.
new text end

new text begin Subd. 4. new text end

new text begin Summary of findings. new text end

new text begin The government entity must
summarize the findings adopted in the resolution authorizing the
use of eminent domain in the notice of petition required under
section 117.055.
new text end