S.B. 117

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House Floor Amendments 2-16-2006 dd/rhr This document includes House Committee Amendments incorporated into the bill on Fri, Feb 10, 2006 at 9:27 AM by ddonat. --> This document includes House Floor Amendments incorporated into the bill on Thu, Feb 16, 2006 at 1:58 PM by ddonat. --> This document includes House Floor Amendments incorporated into the bill on Fri, Feb 17, 2006 at 10:23 AM by ddonat. --> 1

EMINENT DOMAIN AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Howard A. Stephenson
5 House Sponsor: David Ure
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to eminent domain.
10 Highlighted Provisions:
11 This bill:
11a H. . expands the public uses for which eminent domain may be used to include bicycle paths
11b and sidewalks adjacent to paved roads;
11c . narrows the public uses for which local governments may acquire roads, streets, or alleys by
11d eminent domain;
11e . provides that the roads, streets, or alleys that local governments may acquire by eminent
11f domain do not include trails, paths, or other ways for walking, hiking, bicycling, equestrian use, or
11g other recreational uses; . H
12 . requires the taking of property by a H. [ county, city, or town ] political subdivision .H
12a to be approved by the
13 H. [ legislative ] governing .H body of the H. [ county, city, or town ] political subdivision .H ;
14 . requires the governing body of a political subdivision intending to take property by
15 eminent domain to provide written notice to property owners of each public meeting
16 to approve the taking and allow property owners the right to be heard regarding the
17 proposed taking;
18 . modifies the duty to negotiate with a property owner and the duty to notify the
19 property owner of certain rights and limitations with respect to an anticipated
20 eminent domain action; and
21 . clarifies that those duties apply to each person seeking to acquire property involving

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House Floor Amendments 2-16-2006 dd/rhr 22

the potential use of eminent domain if the property cannot be acquired in a
23 voluntary transaction.
24 Monies Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None

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House Floor Amendments 2-16-2006 dd/rhr

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House Committee Amendments 2-10-2006 dd/rhr 28

Utah Code Sections Affected:
29 AMENDS:
29a H. 78-34-1, as last amended by Chapter 164, Laws of Utah 1981 .H
30 78-34-4, as last amended by Chapter 161, Laws of Utah 1981
31 78-34-4.5, as enacted by Chapter 223, Laws of Utah 2004
32
33 Be it enacted by the Legislature of the state of Utah:
33a H. Section 1. Section 78-34-1 is amended to read:
33b 78-34-1. Uses for which right may be exercised.
33c Subject to the provisions of this chapter, the right of eminent domain may be exercised in
33d behalf of the following public uses:
33e (1) All public uses authorized by the Government of the United States.
33f (2) Public buildings and grounds for the use of the state, and all other public uses authorized
33g by the Legislature.
33h (3) Public buildings and grounds for the use of any county, city or incorporated town, or board
33i of education; reservoirs, canals, aqueducts, flumes, ditches, or pipes for conducting water for the use
33j of the inhabitants of any county or city or incorporated town, or for the draining of any county, city or
33k incorporated town; the raising of the banks of streams, removing obstructions therefrom, and
33l widening, deepening or straightening their channels; bicycle paths and sidewalks adjacent to paved
33m roads; roads, streets and alleys for public vehicular use, excluding trails, paths, or other ways for
33n walking, hiking, bicycling, equestrian use, or other recreational uses ; and all other public uses
33o for the benefit of any county, city or incorporated town, or the inhabitants thereof.
33p (4) Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and
33q turnpike roads, roads for transportation by traction engines or road locomotives, roads for logging or
33r lumbering purposes, and railroads and street railways for public transportation.
33s (5) Reservoirs, dams, watergates, canals, ditches, flumes, tunnels, aqueducts and pipes for the
33t supplying of persons, mines, mills, smelters or other works for the reduction of ores, with water for
33u domestic or other uses, or for irrigation purposes, or for the draining and reclaiming of lands, or for
33v the floating of logs and lumber on streams not navigable, or for solar evaporation ponds and other
33w facilities for the recovery of minerals in solution.
33x (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes and dumping places to facilitate
33y the milling, smelting or other reduction of ores, or the working of mines, quarries, coal mines or
33z mineral deposits including minerals in solution; outlets, natural or otherwise, for the deposit or
33aa conduct of tailings, refuse or water from mills, smelters or other works for the reduction of ores, or
33ab from mines, quarries, coal mines or mineral deposits including minerals in solution; mill dams; gas, oil
33ac or coal pipelines, tanks or reservoirs, including any subsurface stratum or formation in any land for
33ad the underground storage of natural gas, and in connection therewith such other interests in

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House Floor Amendments 2-16-2006 dd/rhr 33ae

property as may be required adequately to examine, prepare, maintain, and operate such underground
33af natural gas storage facilities; and solar evaporation ponds and other facilities for the recovery of
33ag minerals in solution; also any occupancy in common by the owners or possessors of different mines,
33ah quarries, coal mines, mineral deposits, mills, smelters, or other places for the reduction of ores, or any
33ai place for the flow, deposit or conduct of tailings or refuse matter.
33aj (7) Byroads leading from highways to residences and farms.
33ak (8) Telegraph, telephone, electric light and electric power lines, and sites for electric light and
33al power plants.
33am (9) Sewerage of any city or town, or of any settlement of not less than ten families, or of any
33an public building belonging to the state, or of any college or university.
33ao (10) Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and storing
33ap water for the operation of machinery for the purpose of generating and transmitting electricity for
33aq power, light or heat.
33ar (11) Cemeteries and public parks.
33as (12) Pipe lines for the purpose of conducting any and all liquids connected with the
33at manufacture of beet sugar.
33au (13) Sites for mills, smelters or other works for the reduction of ores and necessary to the
33av successful operation thereof, including the right to take lands for the discharge and natural
33aw distribution of smoke, fumes and dust therefrom, produced by the operation of such works; provided,
33ax that the powers granted by this subdivision shall not be exercised in any county where the population
33ay exceeds twenty thousand, or within one mile of the limits of any city or incorporated town; nor unless
33az the proposed condemner has the right to operate by purchase, option to purchase or easement, at least
33ba seventy-five per cent in value of land acreage owned by persons or corporations situated within a
33bb radius of four miles from the mill, smelter or other works for the reduction of ores; nor beyond the
33bc limits of said four-mile radius; nor as to lands covered by contracts, easements or agreements existing
33bd between the condemner and the owner of land within said limit and providing for the operation of
33be such mill, smelter or other works for the reduction of ores; nor until an action shall have been
33bf commenced to restrain the operation of such mill, smelter or other works for the reduction
33bg of ores. .H
34 Section H. [ 1 ] 2 .H . Section 78-34-4 is amended to read:
35 78-34-4. Conditions precedent to taking.
36 (1) Before property can be taken it must appear:
37 [(1)] (a) that the use to which it is to be applied is a use authorized by law;
38 [(2)] (b) that the taking is necessary to such use;
39 [(3)] (c) that construction and use of all property sought to be condemned will
40 commence within a reasonable time as determined by the court, after the initiation of
41 proceedings under this chapter; and
42 [(4)] (d) if already appropriated to some public use, that the public use to which it is to
43 be applied is a more necessary public use.

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House Floor Amendments 2-16-2006 dd/rhr 44

H. [ (2) Property may not be taken by a county, city, or town unless the legislative body of
45 the county, city, or town approves the taking.
46 (3) ] (2) .H (a) As used in this Subsection H. [ (3) ] (2) .H , "governing body" means:
47 (i) for a county, city, or town, the legislative body of the county, city, or town; and
48 (ii) for any other political subdivision of the state, the person or body with authority to
49 govern the affairs of the political subdivision.
49a H. (b) Property may not be taken by a political subdivision of the state unless the
49b governing body of the political subdivision approves the taking.
50 [ (b) ] (c) .H Before H. [ voting to approve the taking of property ] taking a final vote to
50a1 approve
50a the filing of an eminent domain action .H , the governing body of each
51 political subdivision intending to take property shall provide written notice to each owner of
52 property to be taken of each public meeting of the political subdivision's governing body at
53 which a vote on the proposed taking is expected to occur and allow the property owner the
54 opportunity to be heard on the proposed taking.
54a H. [ (c) ] (d) The requirement under Subsection (3)(b) to provide notice to a property
54b1 owner
54b is satisfied by the governing body mailing the written notice to the property owner:
54c (i) at the owner's address as shown on the records of the county assessor's office; and
54d (ii) at least ten business days before the public meeting. .H
55 Section H. [ 2 ] 3 .H . Section 78-34-4.5 is amended to read:
56 78-34-4.5. Negotiation and disclosure required before eminent domain action.
57 Each person who seeks to acquire property by eminent domain or who intends to use
58 eminent domain to acquire property if the property cannot be acquired in a voluntary

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House Committee Amendments 2-10-2006 dd/rhr 59

transaction shall:
60 (1) before H. [ voting ] taking a final vote .H to approve the H. [ taking of property or
60a initiating ] filing of .H an eminent domain
61 action, make a reasonable effort to negotiate with the property owner for the purchase of the
62 property; and
63 (2) as early in the negotiation process under Subsection (1) as practicable but no later
64 than 14 days before [the] H. [ voting to approve the taking of property or ] a final vote is taken to
64a approve the .H filing H. [ [ ] of [ ] ] .H an eminent
65 domain action, unless the court for good cause allows a shorter period before filing:
66 (a) advise the property owner of the owner's rights to mediation and arbitration under
67 Section 78-34-21 , including the name and current telephone number of the property rights
68 ombudsman, established in Section 63-34-13 ; and
69 (b) provide the property owner a written statement explaining that oral representations
70 or promises made during the negotiation process are not binding upon the person seeking to
71 acquire the property by eminent domain.

Legislative Review Note
as of 10-18-05 11:27 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel