SECOND REGULAR SESSION

SENATE COMMITTEE SUBSTITUTE FOR

HOUSE COMMITTEE SUBSTITUTE FOR

HOUSE BILL NO. 1944

93RD GENERAL ASSEMBLY

     Reported from the Committee on Pensions, Veterans' Affairs and General Laws, April 27, 2006, with recommendation that the Senate Committee Substitute do pass.

TERRY L. SPIELER, Secretary.

4100S.10C

AN ACT

To repeal sections 99.120, 99.460, 100.420, 353.130, 523.040, 523.055, 523.200, and 523.205, RSMo, and to enact in lieu thereof eighteen new sections relating to eminent domain.

Be it enacted by the General Assembly of the State of Missouri, as follows:

            Section A.  Sections 99.120, 99.460, 100.420, 353.130, 523.040, 523.055, 523.200, and 523.205, RSMo, are repealed and eighteen new sections enacted in lieu thereof, to be known as sections 353.130, 523.040, 523.042, 523.055, 523.200, 523.205, 523.250, 523.253, 523.256, 523.259, 523.261, 523.262, 523.265, 523.271, 523.274, 523.277, 1, and 2, to read as follows:

            353.130.  [1.]  An urban redevelopment corporation may acquire real property or secure options in its own name or, in the name of nominees, it may acquire real property by gift, grant, lease, purchase, or otherwise.

            [2.  An urban redevelopment corporation shall have the right to acquire by the exercise of the power of eminent domain any real property in fee simple or other estate which is necessary to accomplish the purpose of this chapter, under such conditions and only when so empowered by the legislative authority of the cities affected by this chapter.

            3.  An urban redevelopment corporation may exercise the power of eminent domain in the manner provided for corporations in chapter 523, RSMo; or it may exercise the power of eminent domain in the manner provided by any other applicable statutory provision for the exercise of the power of eminent domain.  Property already devoted to a public use may be acquired in like manner, provided that no real property belonging to any city, county, or the state, or any political subdivision thereof may be acquired without its consent.]

            523.040.  1.  The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be residents of the county in which the real estate or a part thereof is situated, to assess the damages which the owners may severally sustain by reason of such appropriation, who, within forty-five days after appointment by the court, after considering such factors listed in the definition of "just compensation" under subsection 1 of section 1 of this act and after having viewed the property, shall return to the clerk of such court, under oath, their report in duplicate, of such assessment of damages, setting forth the amount of damages allowed to the person or persons named as owning or claiming the tract of land condemned, and should more than one tract be condemned in the petition, then the damages allowed to the owner, owners, claimant or claimants of each tract, respectively, shall be stated separately, together with a specific description of the tracts for which such damages are assessed; and the clerk shall file one copy of said report in his office and record the same in the order book of the court, and he shall deliver the other copy, duly certified by him, to the recorder of deeds of the county where the land lies (or to the recorder of deeds of the city of St. Louis, if the land lies in said city) who shall record the same in his office, and index each tract separately as provided in section 59.440, RSMo, and the fee for so recording shall be taxed by the clerk as costs in the proceedings; and thereupon such company shall pay to the clerk the amount thus assessed for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses prescribed in this section; and upon failure to pay the assessment, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the said company shall, within ten days from the return of such assessment, elect to abandon the proposed appropriation of any parcel of land, by an instrument in writing to that effect, to be filed with the clerk of the court, and entered on the minutes of the court, and as to so much as is thus abandoned, the assessment of damages shall be void.  

            2.  Prior to the issuance of any report under subsection 1 of this section, commissioners shall view the property, hear arguments, and review other relevant information that may be offered by the parties.

            3.  (1)  For the purposes of this section, “heritage value” shall mean a value assigned to any real property that has been owned by the same family for one or more years;

            (2)  The line of ownership for the property from the original settler or buyer may be through the children, grandchildren, siblings, and nephews or nieces, including through marriage or adoption to meet the standard of same family;

            (3)  If the ownership of the real property is by an entity, the family must control more than fifty percent of the entity in order to meet the standard of same family;

            (4)  A sliding scale shall be used to determine the heritage value award.  If the real property has been in the same family for one year, the award for heritage value may be an additional amount not to exceed one percent of the original award of damages paid to the property owner.  An additional percent increase shall be added for each year above one year, with the total award for heritage value not to exceed one hundred percent of the original award of damages paid to the property owner for the real property owned by the same family for one hundred years or more.

            523.042.  Notwithstanding any other provision of law to the contrary, the condemning authority shall submit an offer of judgment to the court when filing a petition of condemnation.  After a final judgment is issued and all appeals are exhausted, if the final assessment of damages awarded to the property owner exceeds the offer of judgment submitted with the petition of condemnation by at least fifteen percent, the property owner shall be awarded any reasonable attorneys' fees accrued after the filing of the petition and any other reasonable costs, including but not limited to, appraisal costs.  If the final assessment of damages awarded to the property owner is less than fifteen percent greater than the offer of judgment, the payment of attorneys' fees and costs shall be paid as otherwise provided.

            523.055.  In any action to condemn lands under the power of eminent domain, where the condemnor has paid into the office of the clerk of the circuit court the amount of damages assessed by commissioners pursuant to law, the circuit clerk shall give the owners or those in possession written notice of such fact within five days.  If the owners or those in possession do not deliver possession of the property condemned [within ten days after the receipt of notice of the payment of the award] to the condemnor within one hundred days of the award or within ninety days of receipt of the notice required by subdivision (4) of subsection 5 of section 523.205, then on the request of the condemnor the court shall issue a writ of possession directing the sheriff to deliver the possession of such property to the condemnor forthwith; except that the court may upon the motion of said owners grant them such extension of time under exigent circumstances, not to exceed ninety days, as the court finds to be reasonable under all the circumstances.  The writ of possession shall be executed in the manner provided by law for the execution of writs of possession in ejectment suits for the recovery of land.  If a writ of possession is issued or a motion filed asking for an extension by said owners, then all costs accrued in executing the writ and in the hearing of the motion may be assessed against the said owners.  

            523.200.  As used in sections 523.200 to 523.215, the following words mean:

            (1)  "Displaced person", any person that moves from the real property or moves his personal property from the real property permanently and voluntarily as a direct result of the acquisition, rehabilitation or demolition of, or the written notice of intent to acquire such real property, in whole or in part, for a public purpose;

            (2)  "Public agency", the state of Missouri or any political subdivision or any branch, bureau or department thereof, any public school district, and any quasi-public corporation created or existing by law which are authorized to acquire real property for public purpose and which acquire any such property either partly or wholly with aid or reimbursement from federal funds;

            (3)  "Urban redevelopment corporation", as defined in section 353.020, RSMo.  

            523.205.  1.  Any public agency as defined in section 523.200 which is required, as a condition to the receipt of federal funds, to give relocation assistance to any displaced person is hereby authorized and directed to give similar relocation assistance to displaced persons when the property involved is being acquired for the same public purpose through the same procedures, and is being purchased solely through expenditure of state or local funds.

            2.  The governing body of any city, or agency thereof, prior to approval of a plan, project or area for redevelopment under the operation of chapter 99, RSMo, chapter 100, RSMo, or chapter 353, RSMo, or any other political subdivision or governmental entity initiating condemnation proceedings, which proposes or includes within its provisions or necessitates displacement of persons, when such displacement is not subject to the provisions of the Federal Uniform Relocation and Real Property Acquisition Policies Act of 1970 (42 U.S.C.  sections 4601 to 4655, as amended) or subsection 1 of this section, shall establish by ordinance or rule a relocation policy which shall include, but not be limited to, the provisions and requirements of subsections 2 to 15 of this section, or in lieu thereof, such relocation policy shall contain provisions and requirements which are equivalent to the requirements of the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. sections 4601 to 4655, as amended).

            3.  As used in this section, the following terms shall mean:

            (1)  "Business", any lawful activity that is conducted:

            (a)  Primarily for the purchase, sale or use of personal or real property or for the manufacture, processing or marketing of products or commodities; or

            (b)  Primarily for the sale of services to the public;

            (2)  "Decent, safe and sanitary dwelling", a dwelling which meets applicable housing and occupancy codes.  The dwelling shall:

            (a)  Be structurally sound, weathertight and in good repair;

            (b)  Contain a safe electrical wiring system;

            (c)  Contain an adequate heating system;

            (d)  Be adequate in size with respect to the number of rooms needed to accommodate the displaced person; and

            (e)  For a handicapped person, be free of any barriers which would preclude reasonable ingress, egress or use of the dwelling;

            (3)  "Handicapped person", any person who is deaf, legally blind or orthopedically disabled to the extent that acquisition of another residence presents a greater burden than other persons would encounter or to the extent that modifications to the replacement residence would be necessary;

            (4)  "Initiation of negotiations", the delivery of the initial written offer of just compensation by the acquiring entity, to the owner of the real property, to purchase such real property for the project, or the notice to the person that he will be displaced by rehabilitation or demolition;

            (5)  "Person", any individual, family, partnership, corporation, or association.

            4.  Every urban redevelopment corporation acquiring property within a redevelopment area shall submit a relocation plan as part of the redevelopment plan.

            5.  Unless the property acquisition under the operation of chapter 99, RSMo, chapter 100, RSMo, or chapter 353, RSMo, is subject to federal relocation standards or subsection 1 of this section, the relocation plan shall provide for the following:

            (1)  Payments to all eligible displaced persons, as defined, who occupied the property to be acquired for not less than ninety days prior to the initiation of negotiations who are required to vacate the premises;

            (2)  A program for identifying special needs of displaced persons with specific consideration given to income, age, size of family, nature of business, availability of suitable replacement facilities and vacancy rates of affordable facilities;

            (3)  A program for referrals of displaced persons with provisions for a minimum of three decent, safe and sanitary housing referrals for residential persons or suitable referral sites for displaced businesses, a minimum of ninety days' notice of referral sites for handicapped displaced persons and sixty days' notice of referral sites for all other displaced persons prior to the date such displaced persons are required to vacate the premises, and arrangements for transportation to inspect referral sites; and

            (4)  Every displaced person shall be given a ninety-day notice to vacate, prior to the date such displaced person is required to vacate the premises.

            6.  All displaced residential persons eligible for payments shall be provided with relocation payments based upon one of the following, at the option of the person:

            (1)  A five-hundred-dollar fixed payment; or

            (2)  Actual reasonable costs of relocation including, but not limited to, actual moving costs, utility deposits, key deposits, storage of personal property up to one month, utility transfer and connection fees and other initial rehousing deposits including first and last month's rent and security deposit.

            7.  All displaced businesses eligible for payments shall be provided with relocation payments based upon the following, at the option of the business:

            (1)  A one-thousand-five-hundred-dollar fixed payment; or

            (2)  Actual costs of moving including costs for packing, crating, disconnection, dismantling, reassembling and installing all personal equipment and costs for relettering similar signs and similar replacement stationery, and other reasonable costs of moving.

            8.  If a displaced person demonstrates the need for an advance relocation payment, in order to avoid or reduce a hardship, the developer or public agency shall issue the payment subject to such safeguards as are appropriate to ensure that the objective of the payment is accomplished.  Payment for a satisfactory claim shall be made within thirty days following receipt of sufficient documentation to support the claim.  All claims for relocation payment shall be filed with the displacing agency within six months after:

            (1)  For tenants, the date of displacement;

            (2)  For owners, the date of displacement or the final payment for the acquisition of the real property, whichever is later.

            9.  Any displaced person, who is also the owner of the premises, may waive relocation payments as part of the negotiations for acquisition of the interest held by such person.  Such waiver shall be in writing, shall disclose the person's knowledge of the provisions of this section and his entitlement to payment and shall be filed with the acquiring public agency.

            10.  All persons eligible for relocation benefits shall be notified in writing of the availability of such relocation payments and assistance, with such notice to be given concurrently with the notice of referral sites as required in subdivision (3) of subsection 5 of this section.

            11.  Any urban redevelopment corporation, its assigns or transferees, which have been provided any assistance under the operation of chapter 99, RSMo, chapter 100, RSMo, chapter 353, RSMo, or this chapter, with land acquisition by the local governing body, shall be required to make a report to the local governing body or appropriate public agency which shall include, but not be limited to, the addresses of all occupied residential buildings and structures within the redevelopment area and the names and addresses of persons displaced by the redeveloper and specific relocation benefits provided to each person, as well as a sample notice provided to each person.

            12.  An urban redevelopment corporation which fails to comply with the relocation requirements provided in this section shall not be eligible for tax abatement as provided for in chapter 353, RSMo.

            13.  The requirements set out in this section shall be considered minimum standards.  In reviewing any proposed relocation plan under the operation of chapter 99, RSMo, chapter 100, RSMo, or chapter 353, RSMo, the local governing body or public agency shall determine the adequacy of the proposal and may require additional elements to be provided.

            14.  Relocation assistance shall not be provided to any person who purposely resides or locates his business in a redevelopment area solely for the purpose of obtaining relocation benefits.  

            15.  The provisions of sections 523.200 and 523.205 shall apply to land acquisitions under the operation of chapter 99, RSMo, chapter 100, RSMo, or chapter 353, RSMo, or any other political subdivision initiating condemnation proceedings, filed for approval, approved or amended on or after August 31, 1991.

            523.250.  1.  At least thirty days before initiating negotiations to acquire any interest in real property interest by condemnation or in lieu of condemnation, the condemning authority shall give written notice of its intent to acquire the property interest to the owner of record of the property to be condemned or acquired.  Such notice shall be given by regular mail at the address of the owner of record as listed in the property tax rolls.  However, this notice shall not be required prior to conducting discussions or informational meetings for the purpose of assessing and determining the actual route or location of property that may be taken by eminent domain, the support or opposition to the proposed project, ability to obtain necessary governmental approvals, or related matters.

            2.  The notice shall, at a minimum, include:

            (1)  The legal description and commonly known location of the property interest to be acquired;

            (2)  The purpose or purposes for which the property is being condemned;

            (3)  That the property owner has the right to seek legal counsel with respect to the condemnation;

            (4)  That the property owner has the right to obtain his or her own appraisal of the property interest being condemned;

            (5)  That the property owner has the right to a judicial determination regarding the propriety of the condemnation and the amounts of the proposed compensation for the property;

            (6)  That the property owner has the right to have these issues decided by a jury of his or her peers;

            (7)  That the condemning authority shall pay the reasonable costs of an appraisal; and

            (8)  That the property owner must notify the condemning authority to initiate any reversion of an easement due to vacation or abandonment of such easement.

            3.  Upon receipt of the notice described in subsection 1 of this section, the property owner may employ an appraiser of his or her choosing within sixty days to appraise the property interest to be acquired by the condemning authority.  Such appraisal shall be made using sound, fair, and recognized appraisal practices which are consistent with the law.  A copy of the appraisal shall be provided to the condemnation authority.

            4.  The condemning authority, at or before the time when the notices required by subsection 1 of this section are sent, shall provide public notice, by means of public meeting, newspaper advertisement, or other similar means, of the general nature of the project and its proposed location.

            5.  The notice requirements set forth in subsection 4 of this section shall not apply to projects when:

            (1)  The property interests proposed to be condemned are for easements only; and

            (2)  Five or fewer parcels of property or properties containing less than fifty combined acres are involved in the proposed condemnation.  When determining whether five or fewer parcels on the number of acres are involved, the entire proposed condemnation project shall be considered and shall not be divided for the purpose of utilizing this exemption.

            523.253.  1.  A condemning authority shall present a written offer by giving written notice of such offer to all owners of record of the property at the address of the property and at the most recent mailing address for real estate tax bills in the records of the city or county collector of revenue.  The offer must be made at least thirty days before filing a condemnation petition, and shall be held open for the thirty-day period.

            2.  (1)  If the property owner so chooses, the condemning authority shall engage in mediation with the property owner to determine the amount of compensation the owner shall receive for the property.  Mediation under this section shall be nonbinding and independently administered.  The condemning authority shall pay the cost of the mediator.  If the parties cannot mutually agree upon a mediator, the property owner may petition the circuit court where the property is located to appoint a mediator.  The court shall appoint the mediator within three business days.  The mediation shall take place within the thirty-day period that the written offer is held open under subsection 1 of this section.  If the parties cannot come to an agreement during mediation, the offer shall remain open for the remainder of the thirty-day period and the condemning authority may proceed with condemnation proceedings.

            (2)  The condemning entity or the property owner may include in the mediation any person or entity reasonably necessary to determine the appropriate amount of compensation for the property to be condemned.  This subsection shall not be construed to mandate attendance at a mediation by a person or entity other than the condemning entity or property owner.

            (3)  No person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.

            (4)  Mediation proceedings shall be regarded as settlement negotiations and the confidentiality of such proceeding shall be as set forth in supreme court rule no. 17.

            523.256.  Before a condemning authority may proceed with a petition for condemnation, the court shall make a preliminary determination that the condemning authority has:

            (1)  Given proper and timely notice to all landowners as required by this chapter;

            (2)  Made an initial offer no lower than the amount of the compensation to be paid for the taking as reflected in an appraisal performed by a licensed appraiser, provided an appraisal is required by the terms of this chapter; and

            (3)  Given the landowner an opportunity to obtain his or her own appraisal from a licensed appraiser of his or her choice at the condemning authority's reasonable expense.

No condemnation petition shall go forward until the court determines that the events in subdivisions (1), (2), and (3) have occurred.

            523.259.  If any condemning authority abandons condemnation at any point prior to the final judgment of the court, the court may order the condemning authority to pay the landowner's legal fees and expenses, and may award damages resulting from the pendency of the condemnation if proven by the landowner.  Ceasing proceedings by agreement or settlement shall not deem the property abandoned.  Once an order approving the condemnation is entered by the proper court, the court may impose additional costs, including but not limited to attorney fees, expenses, or punitive damages, if it determines that a condemning authority has acted in bad faith by considering the condemning entity's negotiation tactics.

            523.261.  Solely with regard to condemnation actions pursuant to the authority granted by section 21, article VI, Constitution of Missouri and laws enacted pursuant thereto, any legislative determination that an area is blighted, substandard, or insanitary shall not be arbitrary or capricious and shall be supported by substantial evidence; that such procedural and evidentiary standards have been met shall be reviewable by a court of competent jurisdiction.

            523.262.  1.  Except as set forth in subsection 2 of this section, the power of eminent domain shall only be vested in governmental bodies or agencies whose governing body is elected or whose governing body is appointed by elected officials.

            2.  Private utility companies, public utilities, rural electric cooperatives, municipally owned utilities, pipelines, railroads and common carriers shall have the right of eminent domain as granted pursuant to the provisions of other statutes.

            523.265.  Within thirty days of receiving a written notice sent under section 523.250, the landowner may propose to the condemning authority in writing an alternative location for the property to be condemned, which alternative location shall be on the same parcel of the landowner's property as the property the condemning authority seeks to condemn.  The proposal shall describe the alternative location in such detail that the alternative location is clearly defined for the condemning authority.  The condemning authority shall consider all such alternative locations.  This section shall not apply to total takings.

            523.271.  1.  No condemning authority shall acquire private property through the process of eminent domain for predominantly economic development purposes. 

            2.  For purposes of this section, the term "economic development" shall mean a use of a specific piece of property or properties which would provide an increase in the tax base, tax revenues, employment, and general economic health.

            523.274.  The condemning authority, after making a finding that each parcel of property in the area to be condemned meets the relevant statutory definition of blighted, shall file a condemnation petition regarding land deemed to be blighted within five years after the redevelopment plan is authorized.  If no such petition is filed within the five-year period, or if any parcel of property in the area is determined not to meet the relevant statutory definition of blighted, the authority to acquire the property shall expire. Future acquisition of the property after the expiration of the five years shall require the reauthorization of such project by the condemning authority.

            523.277.  The governor's office of the general counsel shall create an office of ombudsman by appointing a person to the position of ombudsman.  The ombudsman shall assist citizens by providing free consultations to individuals seeking information regarding the condemnation process and procedures.  The ombudsman shall document the use of eminent domain within the state and any complaints associated with its use from persons utilizing the assistance of the ombudsman and other relevant sources.

            Section 1.  1.  Private property shall not be taken through the use of eminent domain without just compensation.  For the purposes of this section, "just compensation" shall mean the amount determined by taking into consideration factors including, but not limited to, the fair market value of the property, the willingness of the owner to sell the property, the heritage or legacy value of the property, the highest and best reasonable use of the property, the availability and cost of comparable property in the area, anticipated profits of the acquiring entity that results from the acquisition in whole or in part, any other relevant factors, and associated reasonable relocation and replacement costs.

            2.  Farmland shall not be determined to be blighted.  For purposes of this section, "farmland" shall mean all real property classified as forest cropland or all real property used for agricultural purposes and devoted primarily to the raising and harvesting of crops; to the feeding, breeding, and management of livestock, which shall include breeding and boarding of horses; to dairy operations, or to any combination thereof; and buildings and structures customarily associated with farming, agricultural, and horticultural uses.  Farmland also shall include land devoted to and qualifying for payments or other compensation under a soil conservation or agricultural assistance program under an agreement with an agency of the federal government.

            Section 2.  In addition to the modifications to a taxpayer's federal adjusted gross income in section 143.121, RSMo, to calculate Missouri adjusted gross income there shall be subtracted from the taxpayer's federal adjusted gross income any gain recognized pursuant to section 1033 of the Internal Revenue Code of 1986, as amended, arising from compulsory or involuntary conversion of property as a result of condemnation or the imminence thereof.

[99.120.  An authority shall have the right to acquire by the exercise of the power of eminent domain any real property in fee simple or other estate which it may deem necessary for its purposes under sections 99.010 to 99.230 after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes.  An authority may exercise the power of eminent domain in the manner provided for corporations in chapter 523, RSMo; or it may exercise the power of eminent domain in the manner provided by any other applicable statutory provision for the exercise of the power of eminent domain.  Property already devoted to a public use may be acquired in like manner, provided that no real property belonging to the city, the county, the state or any political subdivision thereof may be acquired without its consent.]  

[99.460.  1.  An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for a land clearance project or for its purposes under this law after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes.  An authority may exercise the power of eminent domain in the manner and under the procedure provided for corporations in sections 523.010 to 523.070, inclusive, and 523.090 and 523.100, RSMo, and acts amendatory thereof or supplementary thereto; or it may exercise the power of eminent domain in the manner now or which may be hereafter provided by any other statutory provision available to the community, and, as to an authority in a constitutional charter city in the manner provided in the charter of said city for the exercise of the power of eminent domain.  

2.  Property already devoted to a public use may be acquired in like manner, provided that no real property belonging to the municipality, the county or the state may be acquired without its consent.]  

[100.420.  1.  An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for a project or for its purposes under this law after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes.  Any authority may exercise the power of eminent domain in the manner and under the procedure provided for corporations in sections 523.010 to 523.070, inclusive, and 523.090 and 523.100, RSMo, and acts amendatory thereof or supplementary thereto; or it may exercise the power of eminent domain in the manner now or which may be hereafter provided by any other statutory provision available to the city, and, as to an authority in a constitutional charter city, in the manner provided in the charter of said city for the exercise of the power of eminent domain.  

2.  Property already devoted to a public use may be acquired in like manner; provided that no real property belonging to the municipality, the county or the state may be acquired without its consent.]

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