2006 Ballot Issue
THE COMPLETE TEXT OF INITIATIVE NO. 154
WHEREAS, Article II, section 29, of the
Constitution of the State of Montana declares in no uncertain terms that
private property shall not be taken or damaged for public use without just
compensation to the full extent of the loss; and
WHEREAS, Article II, section 3,
provides, within its provisions, the inalienable rights of all Montana citizens
the right to pursue life's basic necessities including defending liberties,
acquiring, possessing and protecting property; and
WHEREAS, Article II, section 17,
provides that no person shall be deprived of life, liberty, or property without
due process of law; and
WHEREAS, despite these Constitutional
protections, in government actions, the rights of private property owners are
often ignored and the compensation provided is not just compensation in that
property owners do not appear to be compensated for property taken or damaged
for public use to the full extent of the loss.
NOW THEREFORE, as these rights clearly
exist and with an intent to protect private property
from the state to the full extent of a loss due to state action resulting in
private property being taken or damaged.
BE IT ENACTED BY THE
PEOPLE OF THE STATE OF MONTANA:
Section 1.
Section 70-30-101, MCA, is amended to read:
"70-30-101. Definitions Eminent domain
defined. (1) Eminent domain is the right of the state to take
private property for public use. This right may be exercised in the manner
provided in this chapter.
(2) (a) Damages to property occur when government regulations
enacted after acquisition of an ownership interest in real property result in
diminished value or economic loss to the private property subject to the
government regulation.
(b) Damages
do not occur when government regulations, including court orders, are enacted
for protection of public health and safety including fire and building codes, health
and sanitary regulation, solid or hazardous waste regulations, housing of
dangerous felons or sexual offenders, commonly and historically recognized
nuisances under common law prohibiting or eradicating blight, obscenity, nude
dancing, junk or abandoned vehicles or any property used in connection with any
criminal activity.
(3) Just
compensation is:
(a) in
the case of the taking of property the current fair market value for the
property and improvement sought to be taken plus costs, interest and attorney
fees as well as diminished value resulting from costs or losses incurred with
respect to relocation or closing of a business;
(b) if the property taken is an individual's principal residence
just compensation is 125% of the fair market value, plus costs, interest, and
attorney fees; or
(c) in
the case of damages to property that is damaged, the depreciation in the
current fair market value, plus costs, interest and attorney fees as well as
diminished value resulting from costs or losses incurred with respect to
relocation or closing of a business.
Section 2.
70-30-301, MCA, is amended to read:
"70-30-301. Hearing -- judge to preside -- determinations by condemnation
commissioners. (1) The condemnation commissioners shall meet at the
time and place stated in the order appointing them. The meeting time may not be
more than 10 days after the order of appointment. The commissioners shall
examine the lands property sought to be taken. At a time
appointed by the judge and within the 10-day period, the commissioners shall
hear the allegations and evidence of all persons interested in each parcel
of land the property sought to be taken.
(2) The hearing must be attended by and presided
over by the presiding judge, who shall make all necessary rulings upon
procedure and the admissibility of evidence.
(3) (a) At the conclusion of the hearing, the
judge shall instruct the commissioners as to the law applicable to their
deliberations and shall instruct them that their duty is to determine, based
solely upon their examination of lands property, the evidence
produced at the hearing or hearings, and the instructions of the court, the
appropriate findings provided for in subsections (3)(b)
through (3)(d).
(b) The commissioners shall determine the current
fair market value of the real property sought to be taken and all improvements
pertaining to the real property and of each separate estate and interest in the
real property and improvements. If the real property consists of different
parcels, the current fair market value of each parcel and each estate or
interest in the real property must be separately assessed.
(c) (i) If the property
sought to be taken constitutes only a part of a larger parcel, the
commissioners shall determine the depreciation in current fair market value
that will accrue to the remaining parcel by reason of the condemnation and any
improvements made to the affected property and the construction of the
improvements in the manner proposed by the condemnor.
(ii) The commissioners shall also determine how
much the remaining parcel and each estate or interest in the remaining parcel
will be benefited, if at all, by the construction of the improvements proposed
by the condemnor. If the benefit is equal to the
amount assessed under subsection (3)(c)(i), the compensation to the condemnee
is limited to the value of the portion taken. However, if the benefit is less
than the amount assessed under subsection (3)(c)(i), the benefit to the condemnee
must be deducted from the amount assessed under subsection (3)(c)(i) and the remainder is the only amount allowed in addition
to the current fair market value.
(d) If the property sought to be
taken is for a railroad, the commissioners shall also determine the cost of
good and sufficient fences along the line of the railroad and the cost of
cattle guards where fences may cross the line of the railroad.
(e) Through examination of the property, the
commissioners shall determine the appropriate payment for damages to the
property taken, as well as to any remaining parcel of property that may be
adversely impacted by the project, to assist the court in making a final
determination pursuant to 70-30-309.
(4) When there are two or more estates or divided
interests in property sought to be taken, the condemnor
is entitled to have the amount of the award for the property first determined
as between the condemnor and all condemnees
claiming any interest in the property. In the same proceeding, the respective
rights of each of the condemnees in and to the total
award must be determined by the commissioners, under supervision and
instruction of the court, and the award must be apportioned accordingly."
Section 3.
70-30-304, MCA, is amended to read:
"70-30-304. Appeal to district court from assessment of
condemnation commissioners. (1) Any party may appeal from any
assessment made by the condemnation commissioners in the court in which the report
of the commissioners is filed. The appeal must be taken within 30 days after
the service upon the parties of the notice of the filing of the award. The
appealing party shall serve notice of the appeal upon the opposing party or the
opposing party's attorney and shall file the notice of appeal in the district
court in which the action is pending. The appeal must be tried upon the same
notice and in the same manner as other civil actions. Unless a jury is waived
by the consent of all parties to the appeal, the appeal must be tried by a
jury. The amount to which the condemnee may be
entitled, by reason of the taking of the condemnee's
property, must be reassessed as prescribed in this part for the assessment of
that amount by the commissioners.
(2) Upon any verdict or
assessment by the commissioners becoming final, judgment must be entered
declaring that upon payment of the amount of the verdict or assessment,
together with the interests and costs allowed by law, if any, the condemnor has the right to construct and maintain the
public use project and to take the property described in the verdict or
assessment for the use and purposes for which the property has been taken. The
rights granted in the verdict or assessment remain in
the condemnor and the condemnor's
heirs, successors, or assigns forever.
(3) If the party appealing
from the award of the commissioners does not succeed in changing to the
appellant's advantage the amount finally awarded in the proceeding, the
appellant may not recover the costs of the appeal, but all the costs of the appellee in the appeal must be taxed against and recovered
from the appellant. However, upon the trial of the appeal, the appellant
may contest the right of any party to any of the property mentioned and set
forth or involved in the appeal that was located after the preliminary survey
of any highway or railroad, seeking to condemn a right-of-way pursuant to the
provisions of this chapter if the condemnation proceedings are begun within 1
year after the preliminary survey."
Section 4.
70-30-322, MCA, is amended to read:
"70-30-322. Option of original owner or successor in interest to
purchase at sale price. (1) Except as provided in subsections (2)
and (3), the owner from whom the real property interest was originally acquired
by eminent domain or otherwise or the owner's successor in interest, if there
is a successor in interest, must be notified by the seller by certified mail
and has a 30-day option from the date of a sale provided for in 70-30-321 to
purchase the interest by offering an amount of money equal to the highest bid
received for the interest at the sale. If more than one person claims an
equal entitlement, the option may not be exercised.
(2) In
any case where the seller is a government entity or the intended use by a
purchaser, other than the optionholder, is different
from the purpose for which the property was condemned, the optionholder
may purchase the interest by offering an amount equal to the lesser of :
(a) the highest bid received; or
(b) the price paid to the original owner at the time of
condemnation excluding costs and fees.
(3) Except
as provided in subsection (4), if bids are not received by the seller and
the optionholder indicates in writing to the seller
that the optionholder wishes to exercise the option,
the seller shall have the real property interest appraised and sell the
interest at that price to the optionholder.
(4) If
bids are not received and the seller is a government entity the optionholder may purchase the interest by offering an
amount equal to the lesser of:
(a) the appraised value; or
(b) the price paid to the original owner at the time of
condemnation excluding costs and fees.
(5)
When an interest, other than a fee simple interest, in property that has been
acquired for a public purpose by right of eminent domain, or otherwise, is
abandoned or when the purpose for which it was acquired is terminated, the
property reverts to the original owner or the original owner's successor in
interest.
(6) The rights of the optionholder with respect to subsections (2)(b) and (4)(b) of [this section] to purchasing the interest
in the condemned property at the original price paid expire 15 years after the
date of the condemnation."
NEW SECTION. Section 5. Limitation on public use. (1) Notwithstanding 70-30-102,
MCA, government entities may not exercise the power of eminent domain with an
intention to directly or indirectly transfer a possessory
interest in the property taken to another private party, except where:
(a) the purpose of
the condemnation relates to improved or unimproved property that constitutes a
danger to the safety and health of the community by reason of dilapidation,
lack of ventilation, light and sanitary facilities, deleterious land use or any
combination of these factors as determined by:
(i) clear and convincing evidence;
and
(ii) in a
manner that separately accounts for each parcel or property interest sought to
be taken;
(b) the property is
necessary for transportation or utility facilities or transmission or pipeline
systems or as enumerated as a public use in 70-30-102, MCA; or
(c) the condemnation
involves the conveyances of interests lesser than fee title to a privately
owned business to provide incidental retail services in a public facility
designed primarily to serve the patrons of the facility.
(2) For the
purposes of [this section], granting a mortgage or other security interests in
the property to be taken for the purpose of financing the project for which the
condemned property is to be used does not constitute an intention to directly
or indirectly transfer a possessory interest in the
property to another private party.
NEW SECTION. Section 6. Just Compensation for damaged property. (1) The current
owner of private real property is entitled to just compensation when property
is damaged by the enactment or enforcement of government regulations.
(2) If the
right to use, divide, possess, sell or improve real property is directly
impaired by a government regulation after the effective date of [this Act] the
owner of the property shall be entitled to just compensation. Prior to filing a
claim for just compensation under [this section], a property owner shall not be
required to pursue or exhaust administrative remedies but must make a written
demand to the government body that enacts or enforces the damaging
regulation. Such demand may be submitted
at any time from the enactment, up through a two year period from the initial
enforcement of a damaging regulation, seeking just compensation, a permanent
waiver from the regulation or a retraction of the regulation by the government
body that enacted the regulation.
(3) A
government body receiving a written demand pursuant to [subsection (2)] must,
within a 90 day period following the date of receipt of the written demand and
without requiring that the property owner participate in any administrative
proceedings, take final action to permanently waive the regulation as applied
to the affected parcel, retract the regulation or pay just compensation. If the
government body does not satisfy the written demand by providing the amount
demanded for just compensation or permanently removing the effect of the
regulation within the 90 days from the filing of the demand, a prevailing owner
shall have a cause of action for just compensation and shall be entitled to
attorney fees, costs, and expenses incurred in pursuing the action. The
government may, at any time prior to final proceedings on the disposition of
the property owner's claim, take final action to permanently waive the
regulation as applied to the affected parcel, retract the regulation or pay
just compensation in satisfaction of the claim, but the government shall also
pay actual attorney fees, costs, and expenses incurred in pursuing the
action.
(4) An
owner of real property affected by enforcement of a government regulation may
apply to use or develop the affected property in a manner consistent with the
permissible uses of the property in existence after the effective date of [this
Act] or the date upon which the owner acquired record
title in the property, whichever is later. If a permissible use under [this
section] is not granted by the governing body within 120 days following the
application for permit, the owner shall have a claim for just compensation and
shall, if the owner prevails, be entitled to attorney fees, costs, and expenses
incurred in pursuing the action.
(5) For
purposes of [this section] the date upon which the owner acquires record title
in the property, in the case of property held by lineal descendents of a
property owner and acquired by such descendents through devise or gift shall be
the date their predecessor in interest acquired title to the property. This
subsection [subsection 5] applies to all interests acquired in the transfer of
legal title and not just instances where the interest acquired is the same.
(6) This
section [section 6] shall not apply to government regulations enforced pursuant
to [section 1, subsection (2)(b)] of [this Act].
NEW SECTION. Section 7. Codification instruction. [Sections 5 and 6] are
intended to be codified as an integral part of Title 70, chapter 30, part 2,
and the provisions of Title 70, chapter 30, part 2 apply to [sections 5 and 6].
NEW SECTION. Section 8. Severability. If part of [this Act] is invalid all valid
parts remain in effect. If part of this act is invalid in one or more of its
applications, the part remains in effect in all valid applications that are
severable from the invalid applications.
NEW SECTION. Section 9. Saving clause.
[This Act] does not affect rights and duties that matured, penalties that were
incurred, or proceedings that were begun before the effective date of [this
Act].
NEW SECTION. Section 10. Applicability. [This Act] applies to government actions,
condemnations, and the sale of previously condemned property, occurring after
the effective date of [this Act].
NEW SECTION. Section 11. Effective date. [This Act] is effective upon approval by
the electorate. |
