ARIZONA STATE SENATE
Phoenix, Arizona
board of
accountancy; omnibus
(NOW):
condemnation; notice; interest; litigation expenses
Requires the property owner to be reimbursed for legal costs if the condemning authority causes the condemnation action to be dismissed and requires notification of lessees of the property subject to the condemnation.
Eminent domain or condemnation is the power of the government to acquire private property for a public purpose. Both the Arizona and the U.S. Constitutions guarantee the payment of “just compensation” to the property owner for any private property taken by the government (Article 2, Section 17, Constitution of Arizona; Article V, U.S. Constitution).
Currently, statute does not require the condemning authority to notify a lessee of the property subject to condemnation prior to filing an action. This has caused concern among lessees that have commercial ownership or operational interest in the improvements on the property. This legislation provides the lessees on record notification of the action as well as copies of the offer to purchase the property. Property owners have also expressed concern regarding the costs associated with legal proceedings in condemnation cases when the condemning authority causes the dismissal of the action. Statute allows a court to require the Arizona Department of Transportation (ADOT) to pay the property owner reasonable attorney fees, expert witness fees and costs, if ADOT causes the condemnation action to be dismissed, but does not address other condemning authorities. This legislation requires notification of lessees and requires a court to award reimbursement of cost if the condemning authority causes the dismissal of the action.
There may be an undetermined fiscal impact to the condemning authority for the reimbursement of costs associated with the dismissal of a condemnation action.
1. Includes condemnation proceedings dismissed on a motion by the condemning authority to the conditions in which a court is required to award the property owner reimbursement of costs, including reasonable attorney, appraisal and engineering fees.
2. Requires, rather than allows, a court to award the property owner reimbursement of costs, including reasonable attorney fees as a condition of dismissal by ADOT.
3. Requires the condemning authority to deliver, at least 20 days prior to filing an action to condemn, to the property owner of record and the sole lessee of record a written offer to purchase and pay just compensation for the property or interest in the property, including any compensable damages to any remaining property and one or more appraisals that support the amount of the proposed compensation.
4. Requires the offer to constitute the condemning authority’s estimate of just compensation.
5. Requires the condemning authority to provide notice, at least 20 days prior to filing an action to condemn, of the offer and appraisal to the party having a plain and obvious commercial ownership or operational interest in substantial improvements on the property by posting the notice at the property that may be subject to condemnation, if no lease is recorded or more than one lease is recorded for that property.
6. Requires the condemning authority to provide a copy of the offer and appraisal to a lessee that is not noted on the record that has a commercial ownership or operational interest in substantial improvements on the property upon presentation of documentation by the lessee of their interest in the property.
7. Authorizes the superior court to waive notice of condemnation action requirements if the court determines that the condemning authority will suffer immediate and irreparable harm that outweighs the property owner’s or lessee’s interest.
8. Requires the value of the property to be determined by ascertaining the most probable price estimated that the property would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it was adapted and for which it was capable.
9. Conforms transportation condemnation statutes with notification and reimbursement requirements changes in the civil proceedings code.
10. Makes technical and conforming changes.
11. Provides for a general effective date.
CED 3/25/02 DPA/SE 8-0-0
3rd Read 4/8/02 50-0-10
Prepared by Senate Staff
April 10, 2002