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COMMITTEE REPORT
February 15, 2006
Introduced by Reps. Edge, Harrison, Harrell, Merrill, Bingham, Young, Loftis, Perry, Haskins, Witherspoon, Bailey, Cato, Vaughn, Altman, Sandifer, G.R. Smith, Walker, Jefferson, Mack, Vick and Hardwick
S. Printed 2/15/06--H.
Read the first time January 24, 2006.
To whom was referred a Bill (H. 4503) to amend the Code of Laws of South Carolina, 1976, so as to reform certain eminent domain procedures by adding Section 4-9-32 so as to provide for, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Article 1, Chapter 9, Title 4 of the 1976 Code is amended by adding:
"Section 4-9-32. (A) Before exercising the powers granted in Section 4-9-30(15), a county governing body shall:
(1) perform a cost-benefit analysis and produce a written report based on the analysis which, at a minimum, must:
(a) establish criteria for the objective to be accomplished as a result of the proposed taking;
(b) include a fiscal impact statement that addresses whether the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking; and
(c) identify alternatives to achieving the stated objective other than through a taking of the property pursuant to the powers of eminent domain;
(2) convene a meeting between the county official or officials with the decision-making authority regarding the proposed taking and the stakeholders in the proposed taking including, but not limited, to any person or entity with current or future property rights in the property at issue, to review and discuss the proposed taking and to review and discuss the cost-benefit analysis report prepared pursuant to item (1) of this subsection;
(3) produce a final written report that is subject to disclosure to the public pursuant to Chapter 4 of Title 30, the Freedom of Information Act, and that confirms compliance with items (1) and (2) of this subsection.
(B) Unless the fiscal impact statement included in the cost-benefit analysis report pursuant to item (1) of Subsection (A) concludes that the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking, the county may not exercise the authority granted in Section 4-9-30(15)."
SECTION 2. Article 1, Chapter 2, Title 28 of the 1976 Code is amended by adding:
"Section 28-2-65. (A) If the real property, or a portion of it, condemned pursuant to the procedure prescribed in this chapter is not used for the public purpose or use for which it was condemned within ten years from the effective date of its condemnation, the former owner, his successors or assigns, have the right of first refusal to reacquire the subject real property upon payment of the amount of the original condemnation award or its current appraised value, whichever is less.
(B) The ten-year period required by this section must be tolled for the period of time during which condemnation is contested or the declared use is delayed for regulatory, permitting, litigation, or other legal proceedings.
Section 28-2-67. (A) Except as otherwise provided by law as to blighted areas, the condemnor of real property pursuant to this chapter may not sell, lease, exchange, transfer, or otherwise convey the property or a portion of it to a private or public person or entity unless the former owner of the property, his successors or assigns, have the right of first refusal to reacquire the subject property upon payment of the amount of the original condemnation award or its current appraised value, whichever is less, unless otherwise required by federal law or regulation, or unless a failure to receive the current appraised value would result in a loss of federal funding for a project.
(B) This section does not apply when condemned property is sold, leased, exchanged, transferred, or otherwise conveyed by one public body to another public body who has eminent domain authority for the same public purpose or use."
SECTION 3. Chapter 3 of Title 28 of the 1976 Code is amended by adding:
"Section 28-3-25. (A) A state body not specifically enumerated in section 28-3-20 and all special purpose districts must apply to and receive written approval from the South Carolina Budget and Control Board before exercising the power of eminent domain.
(B) A county of this State and any agency or political subdivision of a county must apply to and receive written approval from its county council before exercising the power of eminent domain.
(C) A municipality of this State and any agency or political subdivision of a municipality must apply to and receive written approval from its town or city council before exercising the power of eminent domain."
SECTION 4.A. Title 28 of the 1976 Code is amended by adding:
Section 28-4-10. This chapter may be cited as 'The Just Compensation for Land Use Restrictions Act'.
Section 28-4-20. As used in this chapter:
(1) 'Family member' includes the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any family member, or a legal entity owned by any one or combination of these family members or the owner of the property.
(2) 'Land use regulation' means:
(a) a statute or administrative rule or regulation regulating the use of land or an interest in land;
(b) a local government ordinance, comprehensive plan, zoning ordinance, land division ordinance, and transportation ordinance;
(c) metropolitan service district regional framework plan, functional plan, planning goals and objectives; and
(d) a statute and administrative rule regulating farming and forest practices.
(3) 'Owner' means the present owner of the property or an interest in the property.
(4) 'Public entity' means the State, a city, a county, or a political subdivision or an agency of them.
Section 28-4-30. (A) If a public entity enacts or enforces a land use regulation that restricts the use of private real property or an interest in it and has the effect of reducing the fair market value of the property or the interest in it, the owner of the property must be paid just compensation.
(B) For purposes of this Chapter, just compensation is equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation pursuant to this chapter.
(C) This section does not apply to a land use regulation:
(1) restricting or prohibiting an activity recognized as a public nuisance by law;
(2) restricting or prohibiting an activity for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
(3) to the extent the land use regulation is required to comply with federal law;
(4) restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. This item is not intended to affect or alter rights provided by the constitution of this State or the United States;
(5) enacted before the date of acquisition of the property by the owner;
(6) regulating hunting, fishing, trapping, releasing of animals, and protecting fish and wildlife and their habitats;
(7) governing the establishment and maintenance of private driveways pursuant to Sections 57-5-1080, 57-5-1090, 57-5-1100, or 57-5-1110 of the 1976 Code of Laws;
(8) that are adopted as part of an unincorporated area's initial adoption of land use regulations; or
(9) enacted pursuant to the operation or protection of a military institution or facility.
(D) This section applies only to properties that are the direct subjects of condemnation, ordinance, zoning, regulation, or designation actions. A provision of this chapter must not be applied to properties that are in close proximity to properties that are subject to this act unless the properties are also the direct subjects of condemnation, ordinance, zoning, regulation, or designation actions. This provision does not affect remedies that may be available at common law regarding inverse condemnation actions.
Section 28-4-40. (A) Just compensation pursuant to Section 28-4-30 is due the owner of the property if the land use regulation continues to be enforced against the property one hundred eighty days after the owner of the property makes written demand for compensation pursuant to this section to the public entity enacting or enforcing the land use regulation.
(B) For claims arising from land use regulations enacted after the effective date of this chapter, written demand for compensation pursuant to subsection (A) must be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criterion, whichever is later.
Section 28-4-50. (A) If a land use regulation continues to apply to the subject property more than one hundred eighty days after the present owner of the property makes written demand for compensation pursuant to this chapter, the present owner of the property or an interest in it has a cause of action for compensation in the circuit court in which the real property is located.
(B) A public entity may adopt or apply procedures for the processing of claims pursuant to this chapter, except that these procedures may not act as a prerequisite to the filing of a compensation claim pursuant to subsection (A) of this section, and the failure of an owner of property to file an application for a land use permit with the local government may not serve as grounds for dismissal, abatement, or delay of a compensation claim pursuant to subsection (A).
Section 28-4-60. Notwithstanding another state statute or the availability of funds pursuant to Section 28-4-70, instead of payment of just compensation pursuant to this chapter, the public entity responsible for enacting the land use regulation may modify, remove, create a variance, or not apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.
Section 28-4-70. Claims made pursuant to this chapter must be paid from funds specifically allocated by the General Assembly or the appropriate public entity for payment of claims pursuant to this chapter. Notwithstanding the availability of funds, a public entity may use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to section 28-4-60. If a claim is not paid within two years from the date on which it accrues, the owner must be allowed to use the property as permitted at the time the owner acquired the property.
Section 28-4-80. The remedy created by this act is in addition to any other remedy provided by the state or federal law, and is not intended to modify or replace any other remedy.
Section 28-4-90. (A) An owner is entitled to reasonable attorney's fees, expenses, costs, and other disbursements if a court awards compensation pursuant to this chapter as a result of the enactment or enforcement of a land use regulation against that owner's real property.
(B) An owner may seek recovery of his fees, expenses, costs, and other disbursements.
(C) If an owner seeks compensation based on the enactment or enforcement of more than one land use regulation and prevails with respect to some land use regulations but not others, the court shall award fees, expenses, costs, and other disbursements.
B. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
C. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. If portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect. This chapter must be solely prospective in nature and a provision of this chapter must not be applied retroactively."
SECTION 5. Section 4-9-30(15) of the 1976 Code is amended to read:
"(15) in accordance with and subject to the requirements and conditions in Section 4-9-32, to undertake and carry out slum clearance and redevelopment work in areas which are predominantly slum or blighted, the preparation of such the areas for reuse, and the sale or other disposition of such the areas to private enterprise for private uses or to public bodies for public uses and, to that end, the General Assembly delegates to any county the right to exercise the power of eminent domain as to any property essential to the plan of slum clearance and redevelopment. Any A county may acquire air rights or subsurface rights, both as hereinafter defined, by any means permitted by law for acquisition or real estate, including eminent domain, and may dispose of air rights and subsurface rights, regardless of how or for what purpose acquired, for public use by lease, mortgage, sale, or otherwise. Air rights shall mean means estates, rights, and interests in the space above the surface of the ground or the surface of streets, roads, or rights-of-way including access, support, and other appurtenant rights required for the utilization thereof;"
SECTION 6. Section 5-7-50 of the 1976 Code is amended to read:
"Section 5-7-50. Any (A)(1) A municipality desiring to become the owner of any land or to acquire any easement or right-of-way therein in it for any an authorized corporate or public purpose shall have the right to may condemn such the land or right-of-way or easement, subject to the general law of this State, within and without the corporate limits in the county in which it is situated and in any adjoining county or counties. This authority shall does not apply to any property devoted to public use; provided, however, except that, the property of corporations not for profit organized under pursuant to the provisions of Chapter 35 of Title 33, shall is not be subject to condemnation unless the municipality in which their the corporation's service area is located intends to make comparable water service available in such the service area and such the condemnation is for that purpose. After any such the condemnation, the municipality shall assume all obligations of the corporation related to the property and the facilities thereon on it which were condemned.
(2) Provided, however, In accordance with and subject to the requirements and conditions of subsections (B) and (C) of this section, that any an incorporated municipality, or any a housing or redevelopment authority now existing or hereafter established to function, later may undertake and carry out slum clearance and redevelopment work in areas which that are predominately slum or blighted, the preparation of such the areas for reuse, and the sale or other disposition of such the areas to private enterprise or to public bodies for public uses and, to that end, the General Assembly delegates to any incorporated municipality, or such like authorities, the right to exercise the power of eminent domain as to any property essential to the plan of slum clearance and redevelopment. Any incorporated municipality, political subdivision, or authority may acquire air rights or subsurface rights, both as hereinafter defined, by any means permitted by law for acquisition of real estate, including eminent domain, and may dispose of air rights and subsurface rights, regardless of who for whom or for what purpose acquired, for private or public use by lease, mortgage, sale, or otherwise. Air rights shall mean means estates, rights, and interests in the space above the surface of the ground or the surface of streets, roads, or rights-of-ways rights of way including access, support, and other appurtenant rights required for the utilization thereof of them. Subsurface rights shall mean means estates, rights, and interests in the space below the surface of the ground or the surface of streets, roads, or rights-of-way including access, support, and other appurtenant rights required for the utilization thereof of them.
(B) Before exercising the powers granted in paragraph (A)(2) of this section, the municipality, political subdivision, or authority shall:
(1) perform a cost-benefit analysis and produce a written report based on the analysis which, at a minimum, must:
(a) establish criteria for the objective to be accomplished as a result of the proposed taking;
(b) include a fiscal impact statement that addresses whether the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking; and
(c) identify alternatives to achieving the stated objective other than through a taking of the property pursuant to the powers of eminent domain;
(2) convene a meeting between the governmental official or officials with the decision-making authority regarding the proposed taking and the stakeholders in the proposed taking including, but not limited to, any person or entity with current or future property rights in the property at issue, to review and discuss the proposed taking and to review and discuss the cost-benefit analysis report prepared pursuant to subsection (B)(1);
(3) produce a final written report that is subject to disclosure to the public pursuant to Chapter 4 of Title 30, the Freedom of Information Act, and that confirms compliance with items (1) and (2) of this subsection.
(C) Unless the fiscal impact statement included in the cost-benefit analysis report pursuant to this section concludes that the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking, the municipality, political subdivision or authority may not exercise the authority granted in subsection (A)(2) of this section."
SECTION 7. Section 28-2-30 of the 1976 Code is amended by inserting after items (2), (11), and (20), respectively:
"(2A) 'Blighted', when used in any section of the Code to describe real property or an area for eminent domain purposes, means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age, or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals, or welfare; except that, an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the appropriate planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, a property owner or person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners.
(11A) 'Just compensation' means the value of the property taken and the damages, if any, to the property not taken so that:
(a) a full and complete equivalent for the loss sustained is realized by the owner whose property has been taken or damaged; and
(b) the property owner is in as good a pecuniary position as if his property were not taken.
The computation of just compensation must include a reduction for any benefits derived by the landowner as a result of the proposed project including, but not limited to, the value of property or rights relinquished or reverting to the landowner.
(20) 'Public use' means a fixed, definite, and enforceable right of use by the public that requires possession, occupation, and enjoyment of the property by the public-at-large or by a public body, which includes an entity granted condemnation powers pursuant to Title 58 or Title 33. A use of property that creates a benefit to the public that is merely incidental, indirect, pretextual, or speculative does not constitute a public use. A mere public purpose or public benefit including, but not limited to, the purpose or benefit of economic development, does not constitute the requisite public use for property to be condemned by eminent domain."
SECTION 8. Sections 28-3-20 and 28-3-30 of the 1976 Code are amended to read:
"Section 28-3-20. All state authorities, commissions, boards, or governing bodies established by the State of South Carolina, (hereinafter referred to as "state authority") which have been, or may be created in the future, to develop waterways of the State for use in intrastate, interstate, and foreign commerce; to construct, maintain, and operate powerhouses, dams, canals, locks, and reservoirs; to produce, transmit, sell, and distribute electric power; to reclaim and drain swampy and flooded lands; to improve health conditions of the State; and to reforest watersheds, and for which purposes the acquisition of property is necessary, have the right of eminent domain. Except as otherwise provided in Sections 4-9-30 and 5-7-50, the only public entities that have the right of eminent domain are:
(1) The South Carolina Department of Transportation;
(2) The South Carolina Public Service Authority; and
(3) The Department of Commerce, Division of State Development.
Section 28-3-30. (A) This section applies when the power of eminent domain is exercised only to develop waterways of the State for use in intrastate, interstate, and foreign commerce; to construct, maintain, and operate powerhouses, dams, canals, locks, and reservoirs; to produce, transmit, sell, and distribute electric power; to reclaim and drain swampy and flooded lands; to improve health conditions of the State; and to reforest watersheds, and for which purposes the acquisition of property is necessary.
(B) Any A public body exercising the power of eminent domain for purposes set forth in Section 28-3-20 shall, in subsection (A), in the area determined by the maximum high-water mark resulting from its activity and a line not exceeding one hundred lineal feet beyond such that high-water mark, shall arrange to permit the previous owner of the one hundred foot strip, and his heirs and assigns, to pass over and across the strip which may be that is acquired under pursuant to this section, and any and all lands of the state authority which that are not actually covered with water at convenient places for purposes of ingress and egress to the reservoirs of the state authority, which. This right must be exercised so that it shall does not interfere with any dams, dikes, structures, and buildings of the state authority or the application and use of the state authority of proper health and sanitation measures, and the strip and all of the lands acquired by the authority may be controlled by the authority for health and sanitation measures to the extent of exclusion of the public from the strip and lands at all times as may be necessary. The public bodies may also also may acquire by condemnation all water and flowage rights in land in the vicinity of the projects specified in Section 28-3-20 subsection (A) which it may determine to be determines necessary, useful, or convenient, or which might may be damaged by reason of the construction or operation of the projects, and on those lands the public bodies may establish health control measures as may be are necessary."
SECTION 9. Section 31-7-30(1) of the 1976 Code was amended by Act 109 of 2005 and is further amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of a county where:
if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; presence of or potential environmental hazard; lack of ventilation, light, storm drainage, or sanitary facilities; inadequate utilities; inadequate transportation infrastructure; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, are detrimental to the public safety, health, morals, or welfare; or 'Agricultural real property' has the same definition as is provided in Section 12-43-230.
(1A) 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners."
SECTION 10. Section 6-33-30(1) of the 1976 Code is amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of a county where:
(a) if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light, or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, are detrimental to the public safety, health, morals, or welfare; or
(b) if vacant, the sound growth is impaired by:
(i) a combination of two or more of the following factors: obsolete platting of the vacant land; diversity of ownership of such land; tax and special assessment delinquencies on such land; deterioration of structures or site improvements in neighboring areas adjacent to the vacant land; or
(ii) the area immediately prior to becoming vacant qualified as a blighted area. Any area within a redevelopment plan established by Chapter 10 of Title 31 is deemed to be a blighted area. Agricultural real property has the same definition as in Section 12-43-230.
(1A) 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners."
SECTION 11. Section 31-6-30(1) and (1.5), as last amended by Act 109 of 2005, is further amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of the municipality where:
(a) if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of necessary transportation infrastructure; presence of or potential environmental hazards; lack of water or wastewater services; inadequate electric, natural gas or other energy services; lack of modern communications infrastructure; lack of ventilation, light, sanitary or storm drainage facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning; and static or declining land values are detrimental to the public safety, health, morals, or welfare or;
(b) if vacant, the sound growth is impaired by:
(i) a combination of two or more of the following factors: obsolete platting of the vacant land; diversity of ownership of such land; tax and special assessment delinquencies on such land; deterioration of structures or site improvements in neighboring areas adjacent to the vacant land; overcrowding of structures and community facilities in neighboring areas adjacent to the vacant land; lack of necessary transportation infrastructure; presence of or potential environmental hazard; lack of water, or wastewater; lack of storm drainage facilities; inadequate electric and natural gas energy services; and lack of modern communications infrastructure; or
(ii) the area immediately prior to becoming vacant qualified as a blighted area. Any area within a redevelopment plan established by Chapter 10 of Title 31 is deemed to be a blighted area. 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners.
(1.5) "Agricultural area" means any unimproved or vacant area formerly developed and used primarily for agricultural purposes within the boundaries of a redevelopment project area located within the territorial limits of the municipality where redevelopment and sound growth is impaired by a combination of three or more of the following factors: obsolete platting of the land; diversity of ownership of the land; tax and special assessment delinquencies on the land; deterioration of structures or site improvements in neighboring areas adjacent to the land; overcrowding of structures and community facilities in neighboring areas adjacent to the land; lack of necessary transportation infrastructure; presence of or potential environmental hazards; lack of water or wastewater; lack of storm drainage facilities; inadequate electric, natural gas or other energy services; lack of modern communications infrastructure; lack of community planning; agricultural foreclosures; and static or declining land values. 'Agricultural property' has the same definition as is provided in Section 12-43-230."
Section 12. Chapter 2 of Title 28 is amended by adding:
"Section 28-2-35. Notwithstanding another provision of law to the contrary, a public body's acquisition of private property through the exercise of eminent domain or condemnation must comply with the following requirements:
(A) A public body has the burden of proving in any proceeding related to a condemnation, by clear and convincing evidence, each of the following:
(1) a proposed condemnation is for a public use;
(2) the entity will own, operate, and retain control over the condemned property, except as may be permitted by Article I, Section 13 of the South Carolina Constitution; and
(3) the property that is the subject of the condemnation provides a necessary and direct benefit to the public at large. A benefit to the public that is merely incidental, indirect, pretextual, or speculative is not a public use.
(B) All statutes relating to or involving eminent domain or condemnation must be strictly construed against the condemnor."
Section 13. Section 59-53-52(13) of the 1976 Code is amended to read:
(13) Exercise the right of eminent domain in the geographical area served by each respective institution;
(Reserved)
Section 14. Section 59-53-420(14) of the 1976 Code is Amended to read:
(14) To exercise the power of eminent domain in the manner provided by the general laws of this State for procedure by any county, municipality or authority organized under the laws of this State, by the Department of Transportation, by railroad corporations or in any manner provided by law, as the council may, in its discretion, elect, including the procedure provided by Chapter 5, Title 28 (Sections 28-5-10 to 28-5-390).
(Reseved)
Section 15. Sections 28-2-360, 28-2-370, 54-3-130, 59-101-605, 59-117-70, and 59-123-90 are hereby repealed.
SECTION 16. Except as otherwise provided herein, all provisions of this act take effect upon approval by the Governor and, except as provided in SECTION 4, apply to an exercise of eminent domain pending on that date or arising on or after that date, and to any legal action not yet finally adjudicated by a trial court. The provisions of SECTION 2 apply to property obtained on or after January 1, 1900, by a public body pursuant to condemnation proceedings or threat of condemnation proceedings./
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO REFORM CERTAIN EMINENT DOMAIN PROCEDURES BY ADDING SECTION 4-9-32 SO AS TO PROVIDE FOR PROCEDURES REQUIRED OF A COUNTY BEFORE IT MAY EXERCISE EMINENT DOMAIN; BY ADDING SECTIONS 28-2-65 AND 28-2-67 SO AS TO PROVIDE THAT THE OWNER OF CONDEMNED PROPERTY HAS THE RIGHT OF FIRST REFUSAL TO REDEEM HIS PROPERTY IF THE CONDEMNING ENTITY DOES NOT USE THE PROPERTY FOR THE INTENDED PUBLIC USE OR IT CONTEMPLATES A SALE TO ANOTHER PARTY; BY ADDING SECTION 28-3-25 SO AS TO REQUIRE WRITTEN APPROVAL BEFORE CERTAIN PUBLIC BODIES MAY EXERCISE EMINENT DOMAIN; BY ADDING CHAPTER 4 TO TITLE 28 SO AS TO ENACT "THE JUST COMPENSATION FOR LAND USE RESTRICTIONS ACT" PROVIDING A PROCESS FOR CALCULATING AND OBTAINING JUST COMPENSATION WHEN A LAND USE REGULATION AFFECTS A LAND'S VALUE; BY ADDING SECTION 31-7-26 SO AS TO PROVIDE THAT THE TAX INCREMENT FINANCING ACT (TIF) FOR COUNTIES DOES NOT APPLY TO AGRICULTURAL REAL PROPERTY; TO AMEND SECTION 4-9-30, RELATING TO A COUNTY'S AUTHORITY TO EXERCISE EMINENT DOMAIN, SO AS TO LIMIT THE EXERCISE OF EMINENT DOMAIN FOR SLUM CLEARANCE AND REDEVELOPMENT OF A BLIGHTED AREA BY A COUNTY; TO AMEND SECTION 5-7-50, RELATING TO A MUNICIPALITY'S AUTHORITY TO EXERCISE EMINENT DOMAIN, SO AS TO LIMIT THE EXERCISE OF EMINENT DOMAIN FOR SLUM CLEARANCE AND REDEVELOPMENT OF A BLIGHTED AREA AND TO PROVIDE REQUIRED PROCEDURES BEFORE THE EXERCISE; TO AMEND SECTION 28-2-30, RELATING TO DEFINITIONS FOR PURPOSES OF EXERCISING EMINENT DOMAIN, SO AS TO DEFINE "BLIGHTED", "JUST COMPENSATION", AND "PUBLIC USE"; TO AMEND SECTIONS 28-3-20 AND 28-3-30, BOTH RELATING TO STATE AUTHORITIES WITH EMINENT DOMAIN POWER, SO AS TO SPECIFY PUBLIC ENTITIES OTHER THAN COUNTIES AND MUNICIPALITIES INCLUDING CERTAIN INSTITUTIONS OF HIGHER LEARNING, THE STATE PORTS AUTHORITY, AND THE SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION; TO AMEND SECTION 31-7-30, AS AMENDED, RELATING TO TIF FOR COUNTIES, SO AS TO DEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED"; BY ADDING SECTION 6-33-25, RELATING TO TIF FOR MUNICIPALITIES, SO AS TO EXCLUDE AGRICULTURAL PROPERTY FROM ITS PROVISIONS; TO AMEND SECTION 6-33-30, RELATING TO TIF FOR MUNICIPALITIES, SO AS TO DEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED"; BY ADDING SECTION 31-6-25, RELATING TO TIF FOR REDEVELOPMENT PROJECTS, SO AS TO EXCLUDE AGRICULTURAL PROPERTY FROM ITS PROVISIONS; AND TO AMEND SECTION 31-6-30, AS AMENDED, RELATING TO TIF FOR REDEVELOPMENT PROJECTS, SO AS TO REDEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED" AREAS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 9, Title 4 of the 1976 Code is amended by adding:
"Section 4-9-32. (A) Before exercising the powers granted in Section 4-9-30(15), a county governing body shall:
(1) perform a cost-benefit analysis and produce a written report based on the analysis which, at a minimum, must:
(a) establish criteria for the objective to be accomplished as a result of the proposed taking;
(b) include a fiscal impact statement that addresses whether the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking; and
(c) identify alternatives to achieving the stated objective other than through a taking of the property pursuant to the powers of eminent domain;
(2) convene a meeting between the county official or officials with the decision-making authority regarding the proposed taking and the stakeholders in the proposed taking including, but not limited, to any person or entity with current or future property rights in the property at issue, to review and discuss the proposed taking and to review and discuss the cost-benefit analysis report prepared pursuant to item (1) of this subsection;
(3) produce a final written report that is subject to disclosure to the public pursuant to Chapter 4 of Title 30, the Freedom of Information Act, and that confirms compliance with items (1) and (2) of this subsection.
(B) Unless the fiscal impact statement included in the cost-benefit analysis report pursuant to item (1) of Subsection (A) concludes that the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking, the county may not exercise the authority granted in Section 4-9-30(15)."
SECTION 2. Article 1, Chapter 2, Title 28 of the 1976 Code is amended by adding:
"Section 28-2-65. If the real property, or a portion of it, condemned pursuant to the procedure prescribed in this chapter is not used for the public purpose or use for which it was condemned within ten years from the effective date of its condemnation, the former owner, his successors or assigns, have the right of first refusal to reacquire the subject real property upon payment of the amount of the original condemnation award or its current appraised value, whichever is less.
Section 28-2-67. Except as otherwise provided by law as to blighted areas, the condemnor of real property pursuant to this chapter may not sell, lease, exchange, transfer, or otherwise convey the property or a portion of it to a private or public person or entity unless the former owner of the property, his successors or assigns, have the right of first refusal to reacquire the subject property upon payment of the amount of the original condemnation award or its current appraised value, whichever is less."
SECTION 3. Chapter 3 of Title 28 of the 1976 Code is amended by adding:
"Section 28-3-25. (A) A state body not specifically enumerated in section 28-3-20 and all special purpose districts must apply to and receive written approval from the South Carolina Budget and Control Board before exercising the power of eminent domain.
(B) A county of this State and any agency or political subdivision of a county must apply to and receive written approval from its county council before exercising the power of eminent domain.
(C) A municipality of this State and any agency or political subdivision of a municipality must apply to and receive written approval from its town or city council before exercising the power of eminent domain."
SECTION 4.A. Title 28 of the 1976 Code is amended by adding:
Section 28-4-10. This chapter may be cited as 'The Just Compensation for Land Use Restrictions Act'.
Section 28-4-20. As used in this chapter:
(1) 'Family member' includes the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any family member, or a legal entity owned by any one or combination of these family members or the owner of the property.
(2) 'Land use regulation' means:
(a) a statute regulating the use of land or an interest in land;
(b) an administrative rule or goal of the Land Conservation and Development Commission;
(c) a local government comprehensive plan, zoning ordinance, land division ordinance, and transportation ordinance; (d) metropolitan service district regional framework plan, functional plan, planning goals and objectives; and
(e) a statute and administrative rule regulating farming and forest practices.
(3) 'Owner' means the present owner of the property or an interest in it.
(4) 'Public entity' means the State, a city, a county, or a political subdivision or an agency of them.
Section 28-4-30. (A) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted before the effective date of this chapter which restricts the use of private real property or an interest in it and has the effect of reducing the fair market value of the property or an interest in it, the owner of the property must be paid just compensation.
(B) Just compensation is equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation pursuant to this chapter.
(C) This section does not apply to land use regulations:
(1) restricting or prohibiting an activity commonly and historically recognized as a public nuisance by common law. This item must be construed narrowly in favor of a finding of compensation pursuant to this chapter;
(2) restricting or prohibiting an activity for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
(3) to the extent the land use regulation is required to comply with federal law;
(4) restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. This item is not intended to affect or alter rights provided by the constitution of this State or the United States;
(5) enacted before the date of acquisition of the property by the owner or a family member of the owner who owned the subject property before acquisition or inheritance by the owner, whichever occurred first.
Section 28-4-40. (A) Just compensation pursuant to Section 28-4-30 is due the owner of the property if the land use regulation continues to be enforced against the property one hundred eighty days after the owner of the property makes written demand for compensation pursuant to this section to the public entity enacting or enforcing the land use regulation.
(B) For claims arising from land use regulations enacted before the effective date of this chapter, written demand for compensation pursuant to subsection (A) must be made within two years of the effective date of this chapter or the date the public entity applies the land use regulation as an approval criterion to an application submitted by the owner of the property, whichever is later. For claims arising from land use regulations enacted after the effective date of this chapter, written demand for compensation pursuant to subsection (A) must be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criterion, whichever is later.
Section 28-4-50. (A) If a land use regulation continues to apply to the subject property more than one hundred eighty days after the present owner of the property makes written demand for compensation pursuant to this chapter, the present owner of the property or an interest in it has a cause of action for compensation in the circuit court in which the real property is located, and is entitled to reasonable attorney's fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation.
(B) A public entity may adopt or apply procedures for the processing of claims pursuant to this chapter, except that these procedures may not act as a prerequisite to the filing of a compensation claim pursuant to subsection (A) of this section, and the failure of an owner of property to file an application for a land use permit with the local government may not serve as grounds for dismissal, abatement, or delay of a compensation claim pursuant to subsection (A).
Section 28-4-60. Notwithstanding another state statute or the availability of funds pursuant to Section 28-4-70, instead of payment of just compensation pursuant to this chapter, the public entity responsible for enacting the land use regulation may modify, remove, or not apply the land use regulation or land use regulations to allow the owner to use the property for a use permitted at the time the owner acquired the property.
Section 28-4-70. Claims made pursuant to this chapter must be paid from funds specifically allocated by the General Assembly or the appropriate public entity for payment of claims pursuant to this chapter. Notwithstanding the availability of funds, a public entity may use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to section 28-4-60. If a claim is not paid within two years from the date on which it accrues, the owner must be allowed to use the property as permitted at the time the owner acquired the property.
Section 28-4-80. The remedy created by this act is in addition to any other remedy provided by the state or federal law, and is not intended to modify or replace any other remedy.
B. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
C. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. If portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect."
SECTION 5. Chapter 7 of Title 31 of the 1976 Code is amended by adding:
"Section 31-7-26. This chapter does not apply to agricultural property."
SECTION 6. Section 4-9-30(15) of the 1976 Code is amended to read:
"(15) in accordance with and subject to the requirements and conditions in Section 4-9-32, to undertake and carry out slum clearance and redevelopment work in areas which are predominantly slum or blighted, the preparation of such the areas for reuse, and the sale or other disposition of such the areas to private enterprise for private uses or to public bodies for public uses and, to that end, the General Assembly delegates to any county the right to exercise the power of eminent domain as to any property essential to the plan of slum clearance and redevelopment. Any A county may acquire air rights or subsurface rights, both as hereinafter defined, by any means permitted by law for acquisition or real estate, including eminent domain, and may dispose of air rights and subsurface rights, regardless of how or for what purpose acquired, for public use by lease, mortgage, sale, or otherwise. Air rights shall mean means estates, rights, and interests in the space above the surface of the ground or the surface of streets, roads, or rights-of-way including access, support, and other appurtenant rights required for the utilization thereof;"
SECTION 7. Section 5-7-50 of the 1976 Code is amended to read:
"Section 5-7-50. Any (A)(1) A municipality desiring to become the owner of any land or to acquire any easement or right-of-way therein in it for any an authorized corporate or public purpose shall have the right to may condemn such the land or right-of-way or easement, subject to the general law of this State, within and without the corporate limits in the county in which it is situated and in any adjoining county or counties. This authority shall does not apply to any property devoted to public use; provided, however, except that, the property of corporations not for profit organized under pursuant to the provisions of Chapter 35 of Title 33, shall is not be subject to condemnation unless the municipality in which their the corporation's service area is located intends to make comparable water service available in such the service area and such the condemnation is for that purpose. After any such the condemnation, the municipality shall assume all obligations of the corporation related to the property and the facilities thereon on it which were condemned.
(2) Provided, however, In accordance with and subject to the requirements and conditions of subsections (B) and (C) of this section, that any an incorporated municipality, or any a housing or redevelopment authority now existing or hereafter established to function, later may undertake and carry out slum clearance and redevelopment work in areas which that are predominately slum or blighted, the preparation of such the areas for reuse, and the sale or other disposition of such the areas to private enterprise or to public bodies for public uses and, to that end, the General Assembly delegates to any incorporated municipality, or such like authorities, the right to exercise the power of eminent domain as to any property essential to the plan of slum clearance and redevelopment. Any incorporated municipality, political subdivision, or authority may acquire air rights or subsurface rights, both as hereinafter defined, by any means permitted by law for acquisition of real estate, including eminent domain, and may dispose of air rights and subsurface rights, regardless of who for whom or for what purpose acquired, for private or public use by lease, mortgage, sale, or otherwise. Air rights shall mean means estates, rights, and interests in the space above the surface of the ground or the surface of streets, roads, or rights-of-ways rights of way including access, support, and other appurtenant rights required for the utilization thereof of them. Subsurface rights shall mean means estates, rights, and interests in the space below the surface of the ground or the surface of streets, roads, or rights-of-way including access, support, and other appurtenant rights required for the utilization thereof of them.
(B) Before exercising the powers granted in paragraph (A)(2) of this section, the municipality, political subdivision, or authority shall:
(1) perform a cost-benefit analysis and produce a written report based on the analysis which, at a minimum, must:
(a) establish criteria for the objective to be accomplished as a result of the proposed taking;
(b) include a fiscal impact statement that addresses whether the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking; and
(c) identify alternatives to achieving the stated objective other than through a taking of the property pursuant to the powers of eminent domain;
(2) convene a meeting between the governmental official or officials with the decision-making authority regarding the proposed taking and the stakeholders in the proposed taking including, but not limited to, any person or entity with current or future property rights in the property at issue, to review and discuss the proposed taking and to review and discuss the cost-benefit analysis report prepared pursuant to subsection (B)(1);
(3) produce a final written report that is subject to disclosure to the public pursuant to Chapter 4 of Title 30, the Freedom of Information Act, and that confirms compliance with items (1) and (2) of this subsection.
(C) Unless the fiscal impact statement included in the cost-benefit analysis report pursuant to this section concludes that the value of the proposed taking to the public is greater than the amount of just compensation owed to the property owner as a result of the proposed taking, the municipality, political subdivision or authority may not exercise the authority granted in subsection (A)(2) of this section."
SECTION 8. Section 28-2-30 of the 1976 Code is amended by inserting after items (2), (11), and (20), respectively:
"(2A) 'Blighted', when used in any section of the Code to describe real property or an area for eminent domain purposes, means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age, or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals, or welfare; except that, an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the appropriate planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, a property owner or person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners.
(11A) 'Just compensation' means the value of the property taken and the damages, if any, to the property not taken so that:
(a) a full and complete equivalent for the loss sustained is realized by the owner whose property has been taken or damaged; and
(b) the property owner is in as good a pecuniary position as if his property were not taken.
(20) 'Public use' means a fixed, definite, and enforceable right of use by the public that requires possession, occupation, and enjoyment of the property by the public-at-large or by a public body. A use of property that creates a benefit that is merely incidental, indirect, or pretextual to the public does not constitute a public use."
SECTION 9. Sections 28-3-20 and 28-3-30 of the 1976 Code are amended to read:
"Section 28-3-20. All state authorities, commissions, boards, or governing bodies established by the State of South Carolina, (hereinafter referred to as "state authority") which have been, or may be created in the future, to develop waterways of the State for use in intrastate, interstate, and foreign commerce; to construct, maintain, and operate powerhouses, dams, canals, locks, and reservoirs; to produce, transmit, sell, and distribute electric power; to reclaim and drain swampy and flooded lands; to improve health conditions of the State; and to reforest watersheds, and for which purposes the acquisition of property is necessary, have the right of eminent domain. Except as otherwise provided in Section 4-9-30 and 5-7-50, the only public entities that have the right of eminent domain are:
(1) public research institutions that provide:
(a) college-level baccalaureate education, master's, professional, and doctor of philosophy degrees leading to continued education or employment;
(b) research through the use of government, corporate, or nonprofit grants or state resources, or both;
(c) public service to the State and the local community;
(2) All public four-year colleges and universities that provide:
(a) college-level baccalaureate education and selected master's degrees leading to employment or continued education, or both, except for doctoral degrees currently being offered;
(b) limited and specialized research;
(c) public service to the State and the local community;
(3) public two-year institutions and branch campuses of the University of South Carolina that provide:
(a) college-level prebaccalaureate education necessary to confer an associate's degree leading to continued education at a four-year or research institution;
(b) public service to the State and the local community;
(4) public technical and comprehensive education systems that provide:
(a) post-secondary vocational, technical, and occupational diploma and associate degree programs leading directly to employment or maintenance of employment and associate degree programs that enable students to gain access to other post-secondary education;
(b) up-to-date and appropriate occupational and technical training for adults;
(c) special school programs that provide training for prospective employees for prospective and existing industry so as to enhance the economic development of South Carolina;
(d) public service to the State and the local community;
(5) The South Carolina State Ports Authority; and
(6) The South Carolina Department of Transportation.
Section 28-3-30. (A) This section applies when the power of eminent domain is exercised only to develop waterways of the State for use in intrastate, interstate, and foreign commerce; to construct, maintain, and operate powerhouses, dams, canals, locks, and reservoirs; to produce, transmit, sell, and distribute electric power; to reclaim and drain swampy and flooded lands; to improve health conditions of the State; and to reforest watersheds, and for which purposes the acquisition of property is necessary.
(B) Any A public body exercising the power of eminent domain for purposes set forth in Section 28-3-20 shall, in subsection (A), in the area determined by the maximum high-water mark resulting from its activity and a line not exceeding one hundred lineal feet beyond such that high-water mark, shall arrange to permit the previous owner of the one hundred foot strip, and his heirs and assigns, to pass over and across the strip which may be that is acquired under pursuant to this section, and any and all lands of the state authority which that are not actually covered with water at convenient places for purposes of ingress and egress to the reservoirs of the state authority, which. This right must be exercised so that it shall does not interfere with any dams, dikes, structures, and buildings of the state authority or the application and use of the state authority of proper health and sanitation measures, and the strip and all of the lands acquired by the authority may be controlled by the authority for health and sanitation measures to the extent of exclusion of the public from the strip and lands at all times as may be necessary. The public bodies may also also may acquire by condemnation all water and flowage rights in land in the vicinity of the projects specified in Section 28-3-20 subsection (A) which it may determine to be determines necessary, useful, or convenient, or which might may be damaged by reason of the construction or operation of the projects, and on those lands the public bodies may establish health control measures as may be are necessary."
SECTION 10. Section 31-7-30(1) of the 1976 Code was amended by Act 109 of 2005 and is further amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of a county where:
if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; presence of or potential environmental hazard; lack of ventilation, light, storm drainage, or sanitary facilities; inadequate utilities; inadequate transportation infrastructure; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, are detrimental to the public safety, health, morals, or welfare; or 'Agricultural real property' has the same definition as is provided in Section 12-43-230.
(1A) 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners."
SECTION 11. Chapter 33, Title 6 of the 1976 code is amended by adding:
"Section 6-33-25. This chapter does not apply to agricultural real property."
SECTION 12. Section 6-33-30(1) of the 1976 Code is amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of a county where:
(a) if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light, or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, are detrimental to the public safety, health, morals, or welfare; or
(b) if vacant, the sound growth is impaired by:
(i) a combination of two or more of the following factors: obsolete platting of the vacant land; diversity of ownership of such land; tax and special assessment delinquencies on such land; deterioration of structures or site improvements in neighboring areas adjacent to the vacant land; or
(ii) the area immediately prior to becoming vacant qualified as a blighted area. Any area within a redevelopment plan established by Chapter 10 of Title 31 is deemed to be a blighted area. Agricultural real property has the same definition as in Section 12-43-230.
(1A) 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners."
SECTION 13. Chapter 6 of Title 31 of the 1976 Code is amended by adding:
"Section 31-6-25. This chapter does not apply to agricultural property."
SECTION 14. Section 31-6-30(1) and (1.5), as last amended by Act 109 of 2005, is further amended to read:
"(1) "Blighted area" means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of the municipality where:
(a) if improved, industrial, commercial, and residential buildings or improvements, because of a combination of five or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of necessary transportation infrastructure; presence of or potential environmental hazards; lack of water or wastewater services; inadequate electric, natural gas or other energy services; lack of modern communications infrastructure; lack of ventilation, light, sanitary or storm drainage facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning; and static or declining land values are detrimental to the public safety, health, morals, or welfare or;
(b) if vacant, the sound growth is impaired by:
(i) a combination of two or more of the following factors: obsolete platting of the vacant land; diversity of ownership of such land; tax and special assessment delinquencies on such land; deterioration of structures or site improvements in neighboring areas adjacent to the vacant land; overcrowding of structures and community facilities in neighboring areas adjacent to the vacant land; lack of necessary transportation infrastructure; presence of or potential environmental hazard; lack of water, or wastewater; lack of storm drainage facilities; inadequate electric and natural gas energy services; and lack of modern communications infrastructure; or
(ii) the area immediately prior to becoming vacant qualified as a blighted area. Any area within a redevelopment plan established by Chapter 10 of Title 31 is deemed to be a blighted area. 'Blighted' means an area or property in which there is a predominance of buildings or improvements, or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence; inadequate provision for ventilation, light, air, sanitation, or open spaces; high density of population and overcrowding; unsanitary or unsafe conditions; the existence of conditions that endanger life or property by fire and other causes; or any combination of these factors, substantially impairs the sound growth of the community; is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and is detrimental to the public health, safety, morals or welfare; except than an area must not be considered a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless it is determined by the planning commission that at least two-thirds of the number of buildings within the area are of the character described in this item and substantially contribute to the conditions making the area a blighted area. If the power of eminent domain is exercised pursuant to this chapter, the property owner or a person having an interest in the property may be represented by counsel of his own selection and his reasonable attorney's fees fixed by the court, taxed as a part of the costs, and paid by the petitioners.
(1.5) "Agricultural area" means any unimproved or vacant area formerly developed and used primarily for agricultural purposes within the boundaries of a redevelopment project area located within the territorial limits of the municipality where redevelopment and sound growth is impaired by a combination of three or more of the following factors: obsolete platting of the land; diversity of ownership of the land; tax and special assessment delinquencies on the land; deterioration of structures or site improvements in neighboring areas adjacent to the land; overcrowding of structures and community facilities in neighboring areas adjacent to the land; lack of necessary transportation infrastructure; presence of or potential environmental hazards; lack of water or wastewater; lack of storm drainage facilities; inadequate electric, natural gas or other energy services; lack of modern communications infrastructure; lack of community planning; agricultural foreclosures; and static or declining land values. 'Agricultural property' has the same definition as is provided in Section 12-43-230."
SECTION 15. This act takes effect October 1, 2006, upon approval by the Governor, and applies to an exercise of eminent domain pending on that date or arising on or after that date.
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