Minnesota Legislature
HF 2846
2nd Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am
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A bill for an act
relating to eminent domain; defining public use or purpose; prohibiting the use
of eminent domain for economic development; requiring clear and convincing
evidence for certain takings; providing for attorney fees and other additional
elements of compensation; making other changes in the exercise of eminent
domain; amending Minnesota Statutes 2004, sections 117.025; 117.075,
subdivision 1; proposing coding for new law in Minnesota Statutes, chapter 117.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
new text begin
[117.012] PREEMPTION; NO IMPLIED AUTHORITY.
new text end
new text begin Subdivision 1. new text end
new text begin Preemption. new text end
new text begin
Notwithstanding any other provision of law, including
any charter provision, ordinance, statute, or special law, all condemning authorities,
including home rule charter cities and all other political subdivisions of the state, must
exercise the power of eminent domain in accordance with the provisions of this chapter,
including all procedures, definitions, remedies, and limitations. Additional procedures,
remedies, or limitations that do not deny or diminish the substantive and procedural rights
and protections of owners under this chapter may be provided by other law, ordinance,
or charter.
new text end
new text begin Subd. 2. new text end
new text begin No implied authority. new text end
new text begin
The power of eminent domain shall not be implied.
In order to exercise the power of eminent domain, the condemning authority must have an
express grant of eminent domain authority.
new text end
Sec. 2.
Minnesota Statutes 2004, section 117.025, is amended to read:
117.025 DEFINITIONS.
Subdivision 1.
Words, terms, and phrases.
deleted text begin Unless the language or context clearly
indicates that a different meaning is intended,deleted text end new text begin For the purposes of this chapter and any
other general or special law authorizing the exercise of the power of eminent domain, new text end the
words, terms, and phrases defined in this section have the meanings given them.
Subd. 2.
Taking.
new text begin "new text end Takingnew text begin "new text end and all words and phrases of like import include every
interference, under the right of eminent domain, with the possession, enjoyment, or value
of private property.
Subd. 3.
Owner.
"Owner" includes all persons deleted text begin interested in suchdeleted text end new text begin with any interest
in the new text end property new text begin subject to a taking, whether new text end as proprietors, tenants, life estate holders,
encumbrancers, new text begin beneficial interest holders, new text end or otherwise.
new text begin Subd. 4. new text end
new text begin Condemning authority. new text end
new text begin
"Condemning authority" means any person or
entity with the power of eminent domain.
new text end
new text begin Subd. 5. new text end
new text begin Abandoned property. new text end
new text begin
"Abandoned property" means property not occupied
by a person with a legal or equitable right to occupy it and for which the condemning
authority is unable to identify and contact the owner despite making reasonable efforts.
new text end
new text begin Subd. 6. new text end
new text begin Blighted area. new text end
new text begin
(a) "Blighted area" means, exclusively, at the time of
condemnation, an area:
new text end
new text begin
(1) that is zoned and used for urban use; and
new text end
new text begin
(2) where more than 50 percent of the buildings are dilapidated.
new text end
new text begin Subd. 7. new text end
new text begin Dilapidated building. new text end
new text begin
"Dilapidated building" means, exclusively, a
building:
new text end
new text begin
(1) that was inspected by the appropriate local government and cited for one or more
building code violations at least 12 months before the condemnation is commenced;
new text end
new text begin
(2) in which the building code violations cited have not been remedied, as
determined by at least one reinspection that finds noncompliance after the due date for
compliance with an order to correct a building code violation; and
new text end
new text begin
(3) that, as of the date the condemnation is commenced, is unfit for human use
because it is unsafe, structurally unsound, or lacking in basic equipment.
new text end
new text begin Subd. 8. new text end
new text begin Environmentally contaminated area. new text end
new text begin
"Environmentally contaminated
area" means an area:
new text end
new text begin
(1) that contains, on or below more than 50 percent of its surface area, any substance
or substances defined, regulated, or listed as a hazardous substance, hazardous material,
hazardous waste, toxic waste, pollutant, contaminant, or toxic substance, or identified as
hazardous to human health or the environment under state or federal law or regulation; and
new text end
new text begin
(2) for which the costs of investigation, monitoring and testing, and remedial action
or removal, as defined in section 115B.02, subdivisions 16 and 17, respectively, including
any state costs of remedial actions, exceed 100 percent of the assessor's estimated market
value for the contaminated area, as determined under section 273.11, for property taxes
payable in the year in which the condemnation commenced.
new text end
new text begin Subd. 9. new text end
new text begin Public nuisance. new text end
new text begin
"Public nuisance" means a public nuisance under
section 609.74.
new text end
new text begin Subd. 10. new text end
new text begin Public service corporation. new text end
new text begin
"Public service corporation" means a
public utility; gas, electric, telephone, or cable communications company; cooperative
association; natural gas pipeline company; crude oil, or petroleum products pipeline
company; municipal utility; municipality when operating its municipally owned utilities;
or municipal power agency. "Public service corporation" also means a municipality or
public corporation when operating an airport under chapter 360 or 473, a common carrier,
a watershed district, or a drainage authority.
new text end
new text begin Subd. 11. new text end
new text begin Public use; public purpose. new text end
new text begin
(a) "Public use" or "public purpose" means,
exclusively:
new text end
new text begin
(1) the possession, occupation, ownership, and enjoyment of the land by the general
public, or by public agencies;
new text end
new text begin
(2) the creation or functioning of a public service corporation; or
new text end
new text begin
(3) mitigation of a blighted area, remediation of an environmentally contaminated
area, reduction of abandoned property, or removal of a public nuisance.
new text end
new text begin
(b) The public benefits of economic development, including an increase in tax base,
tax revenues, employment, or general economic health, do not by themselves constitute
a public use or public purpose.
new text end
Sec. 3.
new text begin
[117.027] CONDEMNATION FOR BLIGHT MITIGATION,
CONTAMINATION REMEDIATION.
new text end
new text begin Subdivision 1. new text end
new text begin
Nondilapidated buildings in areas of blight mitigation; absolute
necessity.
new text end
new text begin
In taking property to mitigate blight, a condemning authority must not take
nondilapidated buildings in the area unless it is absolutely necessary in order to remove
the dilapidated buildings.
new text end
new text begin Subd. 2. new text end
new text begin
Uncontaminated property in environmental contamination
remediation areas; absolute necessity.
new text end
new text begin
In taking property to remediate environmental
contamination, a condemning authority must not take uncontaminated parcels in the area
unless it is absolutely necessary in order to complete remediation of the contaminated area.
new text end
new text begin Subd. 3. new text end
new text begin Contribution to condition by developer disallowed. new text end
new text begin
If a developer
involved in the redevelopment of the project area contributed to the blight or environmental
contamination within the project area, the condition contributed to by the developer must
not be used in the determination of blight or environmental contamination.
new text end
Sec. 4.
new text begin
[117.031] ATTORNEY FEES.
new text end
new text begin
(a) If the final judgment or award for damages, as determined at any level in the
eminent domain process or by the parties themselves, is more than 20 percent greater than
the last written offer of compensation made by the condemning authority prior to the
filing of the petition, the court shall award the owner reasonable attorney fees, litigation
expenses, appraisal fees, other experts fees, and other related costs in addition to other
compensation and fees authorized by this section.
new text end
new text begin
(b) In any case where the court determines that a taking is not for a public use or
is unlawful, the court shall award the owner reasonable attorney fees and other related
expenses, fees, and costs in addition to other compensation and fees authorized by this
section.
new text end
Sec. 5.
Minnesota Statutes 2004, section 117.075, subdivision 1, is amended to read:
Subdivision 1.
Hearing on takingnew text begin ; evidentiary standardnew text end .
new text begin (a) 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.
new text begin
(b) If the taking is for the mitigation of a blighted area, remediation of an
environmentally contaminated area, reducing abandoned property, or removing a
public nuisance, then, notwithstanding any other provision of general or special law, a
condemning authority must show by clear and convincing evidence to the district court
that the taking is necessary and for the designated public use.
new text end
Sec. 6.
new text begin
[117.184] COMPENSATION FOR REMOVAL OF LEGAL
NONCONFORMING USE.
new text end
new text begin
Notwithstanding any law to the contrary, an ordinance or regulation of a political
subdivision of the state or local zoning authority that requires the removal of a legal
nonconforming use as a condition or prerequisite for the issuance of a permit, license, or
other approval for any use, structure, development, or activity constitutes a taking and
is prohibited without the payment of just compensation. This section does not apply if
the permit, license, or other approval is requested for the construction of a building or
structure that cannot be built without physically moving the nonconforming use.
new text end
Sec. 7.
new text begin
[117.186] COMPENSATION FOR LOSS OF GOING CONCERN.
new text end
new text begin Subdivision 1. new text end
new text begin Going concern defined. new text end
new text begin
For purposes of this section, "going
concern" means the benefits that accrue to a business or trade as a result of its location,
reputation for dependability, skill or quality, customer base, good will, or any other
circumstances resulting in probable retention of old or acquisition of new patronage.
new text end
new text begin Subd. 2. new text end
new text begin
Compensation for loss of going concern.
new text end
new text begin
If a business or trade is destroyed by a taking, the owner shall be compensated for
loss of going concern, unless the condemning authority establishes any of the following
by clear and convincing evidence:
new text end
new text begin
(1) the loss is not caused by the taking of the property or the injury to the remainder;
new text end
new text begin
(2) the loss can be reasonably prevented by relocating the business or trade in the
same or a similar and reasonably suitable location as the property that was taken, or by
taking steps and adopting procedures that a reasonably prudent person of a similar age
and under similar conditions as the owner, would take and adopt in preserving the going
concern of the business or trade; or
new text end
new text begin
(3) compensation for the loss of going concern will be duplicated in the
compensation otherwise awarded to the owner.
new text end
new text begin new text end
new text begin new text end
new text begin Subd. 3. new text end
new text begin Procedure. new text end
new text begin
In all cases where an owner will seek compensation for loss of
going concern, the damages, if any, shall in the first instance be determined and reported
by the commissioners under section 117.105 as part of the compensation due to the
owner. The owner shall notify the condemning authority of the owner's intent to claim
compensation for loss of going concern no later than 30 days prior to the commissioner's
hearing. The commissioner's decision regarding any award for loss of going concern may
be appealed by any party in accordance with section 117.145.
new text end
Sec. 8.
new text begin
[117.187] MINIMUM COMPENSATION.
new text end
new text begin
When an owner must relocate, the amount of damages payable, at a minimum, must
be sufficient for an owner to purchase a similar house or building of equivalent size in
the community and not less than the condemning authority's payment or deposit under
section 117.042.
new text end
Sec. 9.
new text begin
[117.188] LIMITATIONS.
new text end
new text begin
The condemning authority may not require the owner to accept as part of the
compensation due any substitute or replacement property. Nor shall the condemning
authority require the owner to accept the return of property acquired or any portion thereof.
new text end
Sec. 10.
new text begin
[117.189] PUBLIC SERVICE CORPORATION EXCEPTION.
new text end
new text begin
Sections 117.031, 117.186, 117.187, and 117.188 do not apply to public service
corporations.
new text end
Sec. 11.
new text begin
[117.1905] PUBLIC HEARING.
new text end
new text begin Subdivision 1. new text end
new text begin Definitions. new text end
new text begin
(a) For the purposes of this section, "local government"
means the elected governing body of a statutory or home rule charter city, county, or
township.
new text end
new text begin
(b) For the purposes of this section, "agency" means any subdivision, agency,
authority, or other entity of the local government, including a port authority, economic
development authority, housing and redevelopment authority, or other similar entity
established under general or special law.
new text end
new text begin Subd. 2. new text end
new text begin Public hearing; vote by local government governing body. new text end
new text begin
Before a
local government or agency acquires property by the exercise of the power of eminent
domain, the local government must notify each property owner in writing of a public
hearing on the proposed taking, post the public hearing information on the local
government's Web site, if any, and publish notice of the public hearing in the official
newspaper. Notice must be provided at least 30 days but not more than 60 days before the
hearing. Any interested person must be allowed reasonable time to present testimony at
the public hearing. The proceedings of the hearing must be recorded and available to the
public for review and comment at reasonable times and a reasonable place. At the next
regular meeting of the local government that is at least 30 days after the public hearing, the
local government must vote on the question of whether to authorize the local government
or agency to use eminent domain to acquire the property.
new text end
Sec. 12. new text begin REVISOR'S INSTRUCTION.
new text end
new text begin
The revisor shall change the phrase "right of eminent domain" where found in
Minnesota Statutes and Minnesota Rules to "power of eminent domain."
new text end
Sec. 13. new text begin EFFECTIVE DATE.
new text end
new text begin
This act is effective the day following final enactment and applies to condemnation
proceedings commenced on or after March 1, 2006.
new text end