1     
EMINENT DOMAIN AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Michael J. Petersen

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill revises provisions related to eminent domain.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires the Department of Transportation to obtain a property owner's consent to
13     acquire private property in certain circumstances;
14          ▸     modifies the requirements for a political subdivision to exercise eminent domain;
15          ▸     allows a property owner to assert as a defense in a court proceeding to challenge an
16     eminent domain action that a taking is not necessary for a public use;
17          ▸     requires a political subdivision to show in a court proceeding that a taking is
18     necessary for the public use in certain circumstances; and
19          ▸     makes technical and conforming changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          72-5-113, as renumbered and amended by Laws of Utah 1998, Chapter 270
27          78B-6-504, as renumbered and amended by Laws of Utah 2008, Chapter 3

28          78B-6-505, as last amended by Laws of Utah 2020, Chapter 290
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 72-5-113 is amended to read:
32          72-5-113. Acquisition of entire lot, block, or tract -- Sale or exchange of
33     remainder.
34          If a part of an entire lot, block, tract of land, or interest or improvement in real property
35     is to be acquired by the department and the remainder is to be left in a shape or condition of
36     little value to [its] the property owner or to give rise to claims or litigation concerning damages,
37     the department may, with the consent of the property owner, acquire the whole of the property
38     and may sell the remainder or may exchange [it] the remainder for other property needed for
39     highway purposes.
40          Section 2. Section 78B-6-504 is amended to read:
41          78B-6-504. Conditions precedent to taking.
42          (1) As used in this section, "governing body" means:
43          (a) for a county, city, or town, the legislative body of the county, city, or town; and
44          (b) for any other political subdivision of the state, the person or body with authority to
45     govern the affairs of the political subdivision.
46          [(1) Before property can be taken it must appear that:]
47          (2) Property may be taken only if:
48          (a) the [use to which it is to be applied is a use] taking is for a public use that is
49     authorized by law;
50          (b) the taking is necessary for the public use;
51          (c) no more property than is reasonably necessary for the public use is being taken,
52     unless:
53          (i) the taking is for state transportation purposes; or
54          (ii) otherwise permitted under Section 57-12-13 or 72-5-113;
55          [(c)] (d) it appears that construction and use of all property sought to be condemned
56     will commence within a reasonable time as determined by the court, after the initiation of
57     proceedings under this part; and
58          (e) the taking is for a more necessary public use if already appropriated to another

59     public use.
60          [(d) if already appropriated to some public use, the public use to which it is to be
61     applied is a more necessary public use.]
62          [(2) (a) As used in this section, "governing body" means:]
63          [(i) for a county, city, or town, the legislative body of the county, city, or town; and]
64          [(ii) for any other political subdivision of the state, the person or body with authority to
65     govern the affairs of the political subdivision.]
66          [(b)] (3) (a) Property may not be taken by a political subdivision of the state unless the
67     governing body of the political subdivision approves the taking.
68          [(c)] (b) Before taking a final vote to approve the filing of an eminent domain action,
69     the governing body of each political subdivision intending to take property shall provide
70     written notice to each owner of property to be taken of each public meeting of the political
71     subdivision's governing body at which a vote on the proposed taking is expected to occur and
72     allow the property owner the opportunity to be heard on the proposed taking.
73          [(d)] (c) The requirement [under Subsection (2)(c)] to provide notice to a property
74     owner under Subsection (3)(b) is satisfied by the governing body mailing the written notice to
75     the property owner:
76          (i) at the owner's address as shown on the records of the county assessor's office; and
77          (ii) at least 10 business days before the public meeting.
78          (4) (a) In a court proceeding to challenge a political subdivision's eminent domain
79     action, a property owner may assert, in addition to any other available defenses, that the taking
80     is not necessary for a public use as required under Subsection (2).
81          (b) In a proceeding described in Subsection (4)(a), the court may not find that the
82     taking is necessary for a public use unless the political subdivision shows by clear and
83     convincing evidence that the public use cannot reasonably be accomplished by using or
84     acquiring other property with the consent of the property owner, if the public use is a public
85     building or ground used for the purpose of recreation or entertainment, including:
86          (i) a park;
87          (ii) a sports facility;
88          (iii) a gymnasium;
89          (iv) a trail; or

90          (v) a golf course.
91          Section 3. Section 78B-6-505 is amended to read:
92          78B-6-505. Negotiation and disclosure required before filing an eminent domain
93     action.
94          (1) As used in this section:
95          (a) (i) "Claimant" means a person who is a record interest holder of real property
96     sought to be condemned.
97          (ii) "Claimant" does not include:
98          (A) a fee simple owner; or
99          (B) a utility subject to Section 72-6-116.
100          (b) "Fee simple owner" means the same as that term is defined in Section 57-12-13.
101          (c) "Governing body" means the same as that term is defined in Section 78B-6-504.
102          (2) A political subdivision of the state that seeks to acquire property by eminent
103     domain or that intends to use eminent domain to acquire property if the property cannot be
104     acquired in a voluntary transaction shall:
105          (a) before the governing body[, as defined in Subsection 78B-6-504(2)(a),] of the
106     political subdivision takes a final vote to approve the filing of an eminent domain action, make
107     a reasonable effort to negotiate with the fee simple owner for the purchase of the property; and
108          (b) except as provided in Subsection (5), as early in the negotiation process described
109     in Subsection (2)(a) as practicable, but no later than 14 days before the day on which a final
110     vote is taken to approve the filing of an eminent domain action:
111          (i) provide the fee simple owner and each claimant a complete printed copy of the
112     materials provided on the Office of the Property Rights Ombudsman website in accordance
113     with Section 13-43-203 regarding the acquisition of property for a public purpose and a
114     property owner's right to just compensation;
115          (ii) provide the fee simple owner a written statement in substantially the following
116     form:
117          "Although this letter is provided as part of an attempt to negotiate with you for the sale
118     of your property or an interest in your property without using the power of eminent domain,
119     [name of political subdivision] may use that power if it is not able to acquire the property by
120     negotiation. Because of that potential, the person negotiating on behalf of the entity is required

121     to provide the following disclosures to you.
122          1. You are entitled to receive just compensation for your property.
123          2. You are entitled to an opportunity to negotiate with [name of political subdivision]
124     over the amount of just compensation before any legal action will be filed.
125          a. You are entitled to an explanation of how the compensation offered for your
126     property was calculated.
127          b. If an appraiser is asked to value your property, you are entitled to accompany the
128     appraiser during an inspection of the property.
129          3. You are entitled to discuss this case with the attorneys at the Office of the Property
130     Rights Ombudsman. The office may be reached at [provide the current contact information for
131     the Office of the Property Rights Ombudsman].
132          4. The Office of the Property Rights Ombudsman is a neutral state office staffed by
133     attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
134     and protecting their property rights. You are entitled to ask questions and request an
135     explanation of your legal options.
136          5. If you have a dispute with [name of political subdivision] over the amount of just
137     compensation due to you, you are entitled to request free mediation or arbitration of the dispute
138     from the Office of the Property Rights Ombudsman. As part of mediation or arbitration, you
139     are entitled to request a free independent valuation of the property.
140          6. Oral representations or promises made during the negotiation process are not
141     binding upon the entity seeking to acquire the property by eminent domain."; and
142          (iii) provide each claimant a written statement in substantially the following form:
143          "1. Your interest in property may be impacted by a public improvement project and
144     you may be entitled to receive just compensation.
145          2. You are entitled to discuss this case with the attorneys at the Office of the Property
146     Rights Ombudsman. The office may be reached at [provide the current contact information for
147     the Office of the Property Rights Ombudsman].
148          3. The Office of the Property Rights Ombudsman is a neutral state office staffed by
149     attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
150     and protecting their property rights. You are entitled to ask questions and request an
151     explanation of your legal options.

152          4. If you have a dispute with [name of entity] over the amount of just compensation
153     due to you, you are entitled to request free mediation or arbitration of the dispute from the
154     Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled
155     to request a free independent valuation of the property.
156          5. Oral representations or promises made during any negotiation are not binding upon
157     the entity seeking to acquire the property by eminent domain."
158          (3) Except as provided in Subsection (5), the entity involved in the acquisition of
159     property may not bring a legal action to acquire the property under this chapter until 30 days
160     after the day on which the disclosure and materials required in Subsections (2)(b)(ii) and (iii)
161     are provided to the fee simple owner and each claimant.
162          (4) A person, other than a political subdivision of the state, that seeks to acquire
163     property by eminent domain or that intends to use eminent domain to acquire property if the
164     property cannot be acquired in a voluntary transaction shall:
165          (a) before filing an eminent domain action, make a reasonable effort to negotiate with
166     the property owner for the purchase of the fee simple; and
167          (b) except as provided in Subsection (5), as early in the negotiation process described
168     in Subsection (4)(a) as practicable, but no later than 30 days before the day on which the person
169     files an eminent domain action:
170          (i) provide the fee simple owner and each claimant a complete printed copy of the
171     materials provided on the Office of the Property Rights Ombudsman website in accordance
172     with Section 13-43-203 regarding the acquisition of property for a public purpose and a
173     property owner's right to just compensation;
174          (ii) provide the fee simple owner a written statement in substantially the following
175     form:
176          "Although this letter is provided as part of an attempt to negotiate with you for the sale
177     of your property or an interest in your property without using the power of eminent domain,
178     [name of entity] may use that power if it is not able to acquire the property by negotiation.
179     Because of that potential, the person negotiating on behalf of the entity is required to provide
180     the following disclosures to you.
181          1. You are entitled to receive just compensation for your property.
182          2. You are entitled to an opportunity to negotiate with [name of entity] over the amount

183     of just compensation before any legal action will be filed.
184          a. You are entitled to an explanation of how the compensation offered for your
185     property was calculated.
186          b. If an appraiser is asked to value your property, you are entitled to accompany the
187     appraiser during an inspection of the property.
188          3. You are entitled to discuss this case with the attorneys at the Office of the Property
189     Rights Ombudsman. The office may be reached at [provide the current contact information for
190     the Office of the Property Rights Ombudsman].
191          4. The Office of the Property Rights Ombudsman is a neutral state office staffed by
192     attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
193     and protecting their property rights. You are entitled to ask questions and request an
194     explanation of your legal options.
195          5. If you have a dispute with [name of entity] over the amount of just compensation
196     due to you, you are entitled to request free mediation or arbitration of the dispute from the
197     Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled
198     to request a free independent valuation of the property.
199          6. Oral representations or promises made during the negotiation process are not
200     binding upon the entity seeking to acquire the property by eminent domain."; and
201          (iii) provide each claimant a written statement in substantially the following form:
202          "1. Your interest in property may be impacted by a public improvement project and
203     you may be entitled to receive just compensation.
204          2. You are entitled to discuss this case with the attorneys at the Office of the Property
205     Rights Ombudsman. The office may be reached at [provide the current contact information for
206     the Office of the Property Rights Ombudsman].
207          3. The Office of the Property Rights Ombudsman is a neutral state office staffed by
208     attorneys experienced in eminent domain. Their purpose is to assist citizens in understanding
209     and protecting their property rights. You are entitled to ask questions and request an
210     explanation of your legal options.
211          4. If you have a dispute with [name of entity] over the amount of just compensation
212     due to you, you are entitled to request free mediation or arbitration of the dispute from the
213     Office of the Property Rights Ombudsman. As part of mediation or arbitration, you are entitled

214     to request a free independent valuation of the property.
215          5. Oral representations or promises made during any negotiation are not binding upon
216     the entity seeking to acquire the property by eminent domain."
217          (5) The court may, upon a showing of exigent circumstances and for good cause,
218     shorten the 14-day period described in Subsection (2)(b) or the 30-day period described in
219     Subsection (3) or (4)(b).