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S. 130
STATUS INFORMATION
General Bill
Sponsors: Senators Campsen and Ryberg
Document Path: l:\council\bills\agm\18630mm07.doc
Companion/Similar bill(s): 3067
Introduced in the Senate on January 9, 2007
Currently residing in the Senate Committee on Judiciary
Summary: Private Property Rights Protection Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/6/2006 Senate Prefiled
12/6/2006 Senate Referred to Committee on Judiciary
1/9/2007 Senate Introduced and read first time SJ-81
1/9/2007 Senate Referred to Committee on Judiciary SJ-81
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
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 CHAPTER 1 TO TITLE 28 SO AS TO ENACT THE SOUTH CAROLINA PRIVATE PROPERTY RIGHTS PROTECTION ACT PROVIDING REQUIREMENTS FOR THE EXERCISE OF EMINENT DOMAIN INCLUDING THAT THE CONDEMNED PROPERTY BE TAKEN FOR A PUBLIC USE, THAT PUBLIC AND PERSONAL NOTICES MUST BE OFFERED, THAT THERE ARE EXCEPTIONS IN CERTAIN EXPRESS INSTANCES, THAT THE PROPERTY MAY BE REACQUIRED BY THE CONDEMNEE IN CERTAIN INSTANCES AT GIVEN PRICES, AND THAT THE CONDEMNEE HAS THE RIGHT OF FIRST REFUSAL TO REPURCHASE THE PROPERTY IN CERTAIN INSTANCES; BY ADDING SECTION 28-2-35 SO AS TO SET FORTH PREREQUISITES TO THE EXERCISE OF EMINENT DOMAIN; BY ADDING SECTION 28-3-25 SO AS TO REQUIRE WRITTEN APPROVAL BEFORE CERTAIN PUBLIC BODIES MAY EXERCISE EMINENT DOMAIN; TO AMEND SECTION 4-9-30, RELATING TO A COUNTY'S AUTHORITY TO EXERCISE EMINENT DOMAIN, SO AS TO PROVIDE FOR 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 PROVIDE FOR 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 6-33-30, RELATING TO TIF FOR MUNICIPALITIES, SO AS TO REDEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED"; TO AMEND SECTION 28-2-20, RELATING TO THE INTENT OF THE GENERAL ASSEMBLY IN CONNECTION WITH THE EMINENT DOMAIN PROCEDURE ACT, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 28-2-30, RELATING TO DEFINITIONS FOR PURPOSES OF EXERCISING EMINENT DOMAIN, SO AS TO DEFINE "BLIGHTED" AND "PUBLIC USE"; TO AMEND SECTIONS 28-2-60 AND 28-2-210, BOTH RELATING TO THE INSTITUTION OF A CONDEMNATION ACTION, BOTH SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 28-2-510, RELATING TO LITIGATION IN CONNECTION WITH A CHALLENGE TO THE EXERCISE OF EMINENT DOMAIN, SO AS TO PROVIDE THAT THE LANDOWNER IS ENTITLED TO AN ATTORNEY AND COSTS AND ATTORNEY'S FEES; 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 WHICH MAY EXERCISE THAT POWER WITHOUT APPROVAL OF THE STATE BUDGET AND CONTROL BOARD; TO AMEND SECTION 28-11-30, RELATING TO REIMBURSEMENT TO PROPERTY OWNERS FOR CERTAIN EXPENSES, SO AS TO PROVIDE FOR REESTABLISHMENT EXPENSES UP TO FIFTY THOUSAND DOLLARS; TO AMEND SECTION 31-6-30, AS AMENDED, RELATING TO TIF FOR REDEVELOPMENT PROJECTS, SO AS TO REDEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED" AREAS; AND TO AMEND SECTION 31-7-30, AS AMENDED, RELATING TO TIF FOR COUNTIES, SO AS TO REDEFINE "AGRICULTURAL REAL PROPERTY" AND "BLIGHTED".
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 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. Title 28 of the 1976 Code is amended by adding:
Section 28-1-10. This chapter may be cited as 'The South Carolina Private Property Rights Protection Act'.
Section 28-1-20. As used in this title:
(1) 'Condemnation date' means either the date the condemnation action is filed or the date the document transferring ownership is recorded, whichever occurs first.
(2) 'Condemnor' means a person or other entity empowered by the General Assembly or federal government to condemn property by eminent domain.
(3) 'Date of taking' means the date when the condemnor files formal notice with the clerk of court.
(4) 'Assignee' means a person or entity that has been assigned, gifted, granted, bequested, or devised a right of first refusal.
(5) 'Public use' means the standard in the Constitution of South Carolina, 1895, by which private property may be condemned by eminent domain.
Section 28-1-30. Notwithstanding another provision of law to the contrary, a condemnor's acquisition of property by eminent domain must comply with the following requirements:
(1)(a) Except as provided in the Constitution of South Carolina, 1895, private property must not be taken for private use without the consent of the owner, nor for public use without just compensation being first made for the property. Private property must not be condemned by eminent domain for a purpose or benefit including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.
(b) For the limited purpose of the remedy of blight, the General Assembly may provide by law that private property constituting a danger to the safety, health of the community by reason of lack of ventilation, light, sanitation, or dilapidation, deleterious land use, or any combination of these factors may be condemned by eminent domain without the consent of the owner and put to a public use or private use if just compensation is first made for the property.
(2) Only a condemnor may exercise the power of eminent domain in this State, and a condemnor may not delegate his authority to a person or other entity that has not been empowered by the General Assembly or federal government to condemn private property by eminent domain.
(3) The condemnor must:
(a) provide written notice to the condemnee in substantially the following form: THIS IS AN EMINENT DOMAIN CONDEMNATION AND IS A LEGAL PROCESS THAT INVOLVES VALUATION OF PROPERTY DESCRIBED HEREIN. YOU MAY NEED TO CONSULT AN ATTORNEY AND/OR A REAL ESTATE PROFESSIONAL IN ORDER TO PROTECT YOUR LEGAL RIGHTS;
(b) file the notice with the formal condemnation notice with the clerk of court; and
(c) maintain a publicly available document that states the public use for property that has been condemned.
Section 28-1-40. (A) This section does not apply:
(1) if its provisions are otherwise contrary to the constitutions of the State of South Carolina or the United States of America or federal law;
(2) when condemned property is sold, leased, exchanged, transferred, or otherwise conveyed by one condemnor to another condemnor who may exercise eminent domain authority for the same or similar public use;
(3) to an uneconomic remainder acquired pursuant to Section 28-2-100;
(4) to the lease of property by the condemnor for additional uses not in conflict with a planned or ongoing public use of the property;
(5) if the condemnee expressly waives in the conveyance document a right to reacquire or right of first refusal; or
(6) if a condemnee, his agent, or his assignee fails to appear and claim a right to reacquire or right of first refusal in the condemnation proceedings.
(B) If a fee simple interest in property is condemned after the effective date of this section, a condemnor must inform a condemnee that he may choose to exercise, assign, or waive:
(1) a right to reacquire the condemned property if the condemned property is not used for the public use for which it was condemned within ten years after the condemnation date as provided in subsection (C)(1) and (2); or
(2) a right of first refusal to repurchase the condemned property if the condemned property is sold fewer than twenty years after the condemnation date as provided in subsection (C)(3).
(C) Except as provided in subsection (A) or unless a failure to receive the current appraised value would result in a loss of federal funding for a project:
(1) A condemnee, his agent, or an assignee has the right to reacquire the subject real property upon payment of the amount of the original condemnation award or its current appraised value, whichever is less, if the real property, or a portion of it, condemned pursuant to the procedure prescribed in Chapter 2, is not used for the public use for which it was condemned within ten years after the condemnation date.
(a) The ten-year period required by this item 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.
(b) Subsection (C)(1) does not apply to property acquired for a future transportation corridor or a public seaport.
(2) Except as otherwise provided by law as to blighted areas, the condemnor of real property pursuant to Chapter 2 may not sell, lease, exchange, transfer, or otherwise convey the condemned property or a portion of it to a private or public person or entity unless the condemnee, his agent, or an assignee has the right to reacquire the subject property as provided in this section upon payment of the amount of the original condemnation award or its current appraised value, whichever is less.
(3) If the condemned property is sold by the condemnor fewer than twenty years after the condemnation date, the condemnor must offer the condemnee the right of first refusal to purchase the condemned property as follows:
(a) if the sale occurs more than ten years and up to twelve years after the condemnation date, the purchase price is no more than fifty percent of the fair market value of the property or the condemnation price, whichever is greater;
(b) if the sale occurs more than twelve years and up to fourteen years after the condemnation date, the purchase price is no more than sixty percent of the fair market value of the property or the condemnation price, whichever is greater;
(c) If the sale occurs more than fourteen years and up to sixteen years after the condemnation date, the purchase price is no more than seventy percent of the fair market value of the property or the condemnation price, whichever is greater;
(d) if the sale occurs more than sixteen years and up to eighteen years after the condemnation date, the purchase price is no more than eighty percent of the fair market value of the property or the condemnation price, whichever is greater; or
(e) if the sale occurs more than eighteen years but fewer athan twenty years after the condemnation date, the purchase price is no more than ninety percent of the fair market value of the property.
(4) If the condemned property is sold by the condemneor twenty years or more after the condemnation date, the purchase price is no more than one hundred percent of the fair market value of the property.
(D) The conveyance document transferring the condemned property from the condemnee to the condemnor must explicitly state if the condemnee waives the right to reacquire or right of first refusal at the time the property is condemned and that the right does not exist.
(E) If the condemnee does not waive the right to reacquire or right of first refusal at the time the property is condemned, the conveyance document transferring the property from the condemnee to the condemnor must contain provisions that:
(1) grant the condemnee the right to reacquire or right of first refusal if the condemned property is sold by the condemnor fewer than twenty years after the condemnation date;
(2) provide that the right to reacquire or right of first refusal is transferable by way of gift, bequest, or devise to an assignee only if:
(a) the condemnee files with the clerk of court or register of deeds in the county where the property is located a notice of the gift, bequest, or devise as provided in subsection (F); and
(b) the gift, bequest, or devise vests as provided by the law of this State; and
(3) provide for service of notice to the condemnee, his agent, or an assignee to whom the right to reacquire or right of first refusal is transferred if the property is sold pursuant to the requirements of subsection (G).
(F) The condemnee, his agent, or an assignee to whom the right to reacquire or right of first refusal has been transferred:
(1) shall file with the clerk of court or register of deeds and with the condemnor a permanent address for service of notice if the property is sold;
(2) shall file with the clerk of court or register of deeds and with the condemnor notice of any change in the permanent address for service of notice;
(3) is considered conclusively to have waived the right to reacquire or right of first refusal if a permanent address or change of permanent address for service of notice is not provided to the condemnor; and
(4) is considered conclusively to have waived a right to reacquire or right of first refusal if he fails to appear and claim a right to reacquire or right of first refusal in the condemnation proceedings.
(G)(1) If the condemnor provides notice by certified letter to the permanent address for service of notice to the condemnee, his agent, or an assignee to whom the right of first refusal has been transferred of the intent to sell the condemned property and the condemnor receives no reply within sixty days of the postmarked date, the right of first refusal is considered waived and the condemnor may sell the property as provided by law. If the condemnor receives a written reply, the condemnor shall file the reply with the clerk of court or register of deeds.
(2) The right to reacquire or right of first refusal expires if the condemnee, his agent, or an assignee fails to pay the amount required by subsection (C) and stated in the condemnor's letter within one hundred and twenty days of the letter's postmarked date.
(3) If a dispute occurs over the purchase price or fair market value of the property, the right to reacquire or right of first refusal expires if the condemnee fails to pay the amount:
(a) agreed upon by the parties pursuant to a written agreement; or
(b) determined by a court to be the amount owed within one hundred and twenty days of the date of the parties' written agreement or the court decision is rendered.
(H) If the property interest condemned is an easement or other property interest less than fee simple, an offer of first refusal to acquire the condemned property that is no longer needed for a public use must be made to the current owner of the parent tract.
(I) Before the sale, lease, or transfer of the property acquired as an uneconomic remainder, the condemnor must notify owners of land contiguous to the uneconomic remainder and offer an opportunity to bid to purchase or lease the property.
(J) If a property is transferred from one condemnor to another condemnor as provided in subsection (A)(2), the subsequent condemnor must comply with the original condemnor's obligations under this section."
SECTION 3. Chapter 2 of Title 28 of the 1976 Code 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) In any action challenging a public body's right to acquire private property pursuant to Section 28-2-470, a public body has the burden of proving, by clear and convincing evidence, each of the following:
(1) a proposed condemnation is for a public use that is not merely incidental, indirect, pretextual, or speculative; and
(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 Constitution of the State of South Carolina, 1895.
(B) The provisions of this section do not apply to:
(1) entities granted condemnation powers pursuant to Title 33 or Title 58; or
(2) determinations pursuant to the provisions of this chapter concerning the value of just compensation."
SECTION 4. Chapter 3 of Title 28 of the 1976 Code is amended by adding:
"Section 28-3-25. (A)(1) 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.
(2) This subsection does not apply to any school district in this State.
(B) 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 5. Subsection (4), as editorially corrected in the 2005 Supplement to the 1976 Code, and subsection (15) of Section 4-9-30 of the 1976 Code are amended to read:
"(4) to exercise powers of eminent domain for county purposes except where the land concerned is devoted to a 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 county 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 county shall assume all obligations of the corporation related to the property and the facilities thereon on it which were condemned;
(15) to undertake and carry out slum clearance and redevelopment work in areas which that are predominantly slum or blighted, the preparation of such those areas for reuse, and the sale or other disposition of such those areas to private enterprise for private uses or to public bodies for public uses and, to that end, the General Assembly delegates to any a 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 of real estate, including eminent domain, and may dispose of air rights and subsurface rights, regardless of how for whom or for what purpose acquired, for private use 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-way including access, support, and other appurtenant rights required for the utilization thereof of them. 'Subsurface rights' 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 of them;"
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 use 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 an 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 use 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 item (2) of subsection (A), 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, 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.
(C) Unless 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 item (2) of subsection (A)."
SECTION 7. 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: (i) dilapidation, deterioration, age, or obsolescence; (ii) inadequate provision for ventilation, light, air, sanitation, or open spaces; (iii) high density of population and overcrowding; (iv) unsanitary or unsafe conditions; (v) the existence of conditions that endanger life or property by fire and other causes; or (vi) any combination of these factors:
(a) substantially impairs the sound growth of the community;
(b) is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and
(c) is detrimental to the public health, safety, morals, or welfare.
An area is not a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless the local governing body determines 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 pursuant to Section 28-2-510."
SECTION 8. Section 28-2-20 of the 1976 Code is amended to read:
"Section 28-2-20. (A) This act amends chapter establishes the law of this State relating to procedures for acquisitions of property and to the exercise of the power of eminent domain.
(B) It is the intention of the General Assembly that this act is designed to chapter create a uniform procedure for all exercise of eminent domain power in this State.
(C) It is not intended by the creation of The General Assembly does not intend through this act chapter to alter the substantive law of condemnation, and any uncertainty as to construction which might arise arises must be resolved in a manner consistent with this declaration.
(D) In the event of conflict between If this act and any chapter conflicts with other law with respect to any a subject governed by this act chapter, this act shall chapter must prevail."
SECTION 9. Section 28-2-30 of the 1976 Code is amended to read:
"Section 28-2-30. As used in this act chapter:
(1) 'Action' means condemnation action.
(2) 'Appraisal' means an opinion as to the value of compensation payable for property, prepared by or under the direction of an individual qualified by knowledge, skill, experience, training, or education to express an opinion as to the value of the compensation. An appraisal includes the assessment of general and specific benefits to the owner as offsets against any damages to the property.
(2A) '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: (i) dilapidation, deterioration, age, or obsolescence; (ii) inadequate provision for ventilation, light, air, sanitation, or open spaces; (iii) high density of population and overcrowding; (iv) unsanitary or unsafe conditions; (v) the existence of conditions that endanger life or property by fire and other causes; or (vi) any combination of these factors:
(a) substantially impairs the sound growth of the community;
(b) is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and
(c) is detrimental to the public health, safety, morals, or welfare.
An area is not a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless the local governing body determines 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 pursuant to Section 28-2-510.
(3) 'Clerk of court' or 'clerk' means the clerk of court of common pleas of the county in which the real property sought for acquisition by a condemnor, or the major portion of the property, is located.
(4) 'Condemn' means to take property under pursuant to the power of eminent domain.
(5) 'Condemnation action' includes all acts incident to the process of condemning property after the service of a Condemnation Notice.
(6) 'Condemnee' means a person or other entity who has a record interest in or holds actual possession of property that is the subject of a condemnation action.
(7) 'Condemnor' means a person or other entity empowered by the General Assembly or federal government to condemn private property by eminent domain.
(8) 'Court' means a circuit court of this State and includes, when the context requires, any judge of the court.
(9) 'Crops' means any a form of vegetation intended to be removed and used or sold for commercial purposes, including, without limitation, grass, flowers, fruits, vegetables, trees, vines, and nursery stock.
(10) 'Federal agency' means the United States or any an agency or instrumentality, corporate, or otherwise, of the United States.
(11) 'Improvement' includes any a building or structure, and any facility, machinery, or equipment that cannot be is incapable of being removed from the real property on which it is situated without substantial damage to the real property or other substantial economic loss.
(12) 'Landowner' means one or more condemnees having a record fee simple interest in the property condemned or any part thereof of it, as distinguished from condemnees who possess a lien or other nonownership interest in the property; where. If there are more than one condemnee, the term means the condemnees collectively, unless expressly provided otherwise.
(13) 'Lien' means a security interest in property arising from contract, mortgage, deed of trust, statute, common law, equity, or creditor action.
(14) 'Litigation expenses' means the reasonable fees, charges, disbursements, and expenses necessarily incurred from and after service of the Condemnation Notice, including, but not limited to, reasonable attorney's fees, appraisal fees, engineering fees, deposition costs, and other expert witness fees necessary for preparation or participation in condemnation actions and the actual cost of transporting the court and jury to view the premises.
(15) 'Local public entity' means a public entity other than the State.
(16) 'Person' includes a natural individual, partnership, corporation, association, other legal or fiduciary entity, and a public entity.
(17) 'Property', 'real property', or 'land' means all lands, including improvements and fixtures thereon on them, lands under water, corporeal or incorporeal easements and hereditaments, corporeal or incorporeal, every legal or equitable estate, interest, and right, legal or equitable, in lands or water, and all rights, interests, privileges, easements, encumbrances, and franchises relating thereto, to them including terms for years and liens by way of judgment, mortgage, or otherwise.
(18) 'Public body' means this State or any county, city, town, municipal corporation, municipality, authority, or other subdivision, agency or body or instrumentality, corporate or otherwise, authorized by law to exercise the power of eminent domain.
(19) 'Public use' means the standard in the Constitution of the State of South Carolina, 1895, by which private property may be condemned by eminent domain.
(20) 'Public works project' means any work or undertaking which that is financed in whole or in part by a federal agency or a public body, or is administered or supervised or regulated by a federal agency or a public body."
SECTION 10. Section 28-2-60 of the 1976 Code is amended to read:
"Section 28-2-60. A condemnor may commence an action under pursuant to this chapter for the acquisition of an interest in any real property necessary for any a public purpose use. The provisions of this chapter shall constitute title are the exclusive procedure whereby by which condemnation may be undertaken in this State."
SECTION 11. Section 28-2-210 of the 1976 Code is amended to read:
"Section 28-2-210. Any A condemnor may institute an action under pursuant to this chapter for the acquisition of an interest in any real property necessary for any a public purpose use. The provisions of this act title constitute the exclusive procedure whereby by which condemnation may be undertaken in this State."
SECTION 12. Section 28-2-510 of the 1976 Code is amended by adding at the end:
"(D) If the power of eminent domain is exercised pursuant to this chapter to acquire blighted property as defined in Section 28-2-30(2A), the property owner or a person having an interest in the property may be represented by counsel of his own selection and, if he prevails, is entitled to recover his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the proceeding."
SECTION 13. Section 28-3-20 of the 1976 Code is 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.
(A) The only state agencies that may exercise directly the right of eminent domain without approval of the State Budget and Control Board are:
(1) the South Carolina Department of Transportation;
(2) the South Carolina Public Service Authority;
(3) the South Carolina State Ports Authority;
(4) the Department of Commerce; and
(5) any school district.
(B) Notwithstanding another provision of law, this provision is intended to be the exclusive procedure governing which state agencies may exercise the right of eminent domain without approval of the State Budget and Control Board."
SECTION 14. Section 28-3-30 of the 1976 Code is amended to read:
"Section 28-3-30. (A) This section applies when the power of eminent domain is exercised only:
(1) 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
(2) 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 necessary health control measures as may be necessary."
SECTION 15. Section 28-11-30 of the 1976 Code is amended to read:
"Section 28-11-30. To the extent that Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646) makes certain requirements pertaining to the acquisition of real property by states prerequisites to federal aid to such those states in programs or projects involving the acquisition of real property for public uses, state agencies and instrumentalities and political subdivisions and local government agencies and instrumentalities involved in such those programs or projects are empowered to may expend available public funds as provided hereafter in this section, whether or not the program or project is federally aided.
(1) Any person, agency or other entity A condemnor acquiring real property for public use in any a project or program shall, as soon as practicable after the date of payment of the purchase price or the date of deposit into court of funds to satisfy the award of compensation in a condemnation proceeding to acquire real property, whichever is the earlier, shall reimburse the owner, to the extent the State deems fair and reasonable, for expenses he necessarily incurred for: (ai) recording fees, transfer taxes, and similar expenses incidental to conveying such real property to the State; (bii) penalty costs for prepayment for preexisting recorded mortgage entered into in good faith encumbering such the real property; and (ciii) the pro rata portion of real property taxes paid which are allocable to a period subsequent to after the date of vesting title in the agency concerned, or the effective date of possession of such the real property by such the agency, whichever is the earlier.
(2) Where If a condemnation proceeding is instituted by the agency to acquire real property for such that use and (i) the final judgment is that the real property cannot be is incapable of being acquired by condemnation or (ii) the proceeding is abandoned, the owner of any right, title, or interest in such the real property shall must be paid such a sum as will that, in the opinion of the agency, reimburse such reimburses the owner for his reasonable attorney, appraisal, and engineering fees actually incurred because of the condemnation proceedings. The award of such condemnor must pay those sums will be paid by the person, agency or other entity which sought to condemn the property.
(3) Where If an inverse condemnation proceeding is instituted by the owner of any right, title, or interest in real property because of use of his property in any a program or project, the court, rendering a judgment for the plaintiff in such the proceeding and awarding compensation for the taking of property, or the attorney effecting a settlement of any such the proceeding, shall determine and award or allow to such the plaintiff, as a part of such the judgment or settlement, such a sum as will that, in the opinion of the court or the agency's attorney, reimburse such reimburses the plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such the proceeding.
(4) Reestablishment expenses payable pursuant to federal guidelines and regulations to move a small business, farm, or nonprofit organization may be paid in an amount up to fifty thousand dollars or the maximum amount allowed by federal regulations, whichever is greater."
SECTION 16. 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: (i) dilapidation, deterioration, age, or obsolescence; (ii) inadequate provision for ventilation, light, air, sanitation, or open spaces; (iii) high density of population and overcrowding; (iv) unsanitary or unsafe conditions; (v) the existence of conditions that endanger life or property by fire and other causes; or (vi) any combination of these factors:
(a) substantially impairs the sound growth of the community;
(b) is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and
(c) is detrimental to the public health, safety, morals, or welfare.
An area is not a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless the local governing body determines 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 pursuant to Section 28-2-510.
(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 17. 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: (i) dilapidation, deterioration, age, or obsolescence; (ii) inadequate provision for ventilation, light, air, sanitation, or open spaces; (iii) high density of population and overcrowding; (iv) unsanitary or unsafe conditions; (v) the existence of conditions that endanger life or property by fire and other causes; or (vi) any combination of these factors:
(a) substantially impairs the sound growth of the community;
(b) is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, and crime; and
(c) is detrimental to the public health, safety, morals, or welfare.
An area is not a blighted area or subject to the power of eminent domain, within the meaning of this chapter, unless the local governing body determines 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 pursuant to Section 28-2-510."
SECTION 18. If any section, subsection, item, subitem, 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 chapter, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 19. This act takes effect upon approval by the Governor, and applies to an exercise of eminent domain pending on that date or arising on or after that date, and to a legal action not yet finally adjudicated by a trial court, except that the provisions of Section 28-1-40, as contained in SECTION 2, take effect July 1, 2007, and apply to any exercise of eminent domain in this State when the date of taking is on or after July 1, 2007.
This web page was last updated on Monday, October 10, 2011 at 1:26 P.M.