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S. 1030
STATUS INFORMATION
General Bill
Sponsors: Senators Campsen, McConnell, Martin, Peeler, Bryant, Mescher, Grooms, Hayes, Ryberg, Richardson, Fair, Leatherman, Alexander, Scott, Gregory, Thomas, Courson, O'Dell, Ritchie, Verdin, Leventis, Ford and Elliott
Document Path: l:\council\bills\agm\18041mm06.doc
Companion/Similar bill(s): 981
Introduced in the Senate on January 10, 2006
Introduced in the House on May 30, 2006
Last Amended on May 24, 2006
Currently residing in the House 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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1/10/2006 Senate Introduced and read first time SJ-47
1/10/2006 Senate Referred to Committee on Judiciary SJ-47
1/11/2006 Senate Referred to Subcommittee: Gregory (ch), Ford, Elliott,
Campsen, Sheheen, Rankin
5/17/2006 Senate Committee report: Favorable with amendment Judiciary SJ-7
5/18/2006 Senate Special order, set for May 18, 2006 SJ-77
5/23/2006 Senate Amended SJ-34
5/23/2006 Senate Debate adjourned SJ-34
5/24/2006 Scrivener's error corrected
5/24/2006 Senate Amended SJ-67
5/24/2006 Senate Read second time SJ-67
5/25/2006 Scrivener's error corrected
5/25/2006 Senate Read third time and sent to House SJ-193
5/30/2006 House Introduced, read first time, placed on calendar without
reference HJ-11
5/31/2006 House Debate adjourned HJ-38
5/31/2006 House Debate adjourned HJ-155
5/31/2006 House Debate adjourned until Thursday, June 1, 2006 HJ-233
6/1/2006 House Committed to Committee on Judiciary HJ-29
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
1/10/2006
5/17/2006
5/23/2006
5/23/2006
5/24/2006
5/24/2006-A
5/25/2006
5/30/2006
Indicates Matter Stricken
Indicates New Matter
INTRODUCED
May 30, 2006
S. 1030
Introduced by Senators Campsen, McConnell, Martin, Peeler, Bryant, Mescher, Grooms, Hayes, Ryberg, Richardson, Fair, Leatherman, Alexander, Scott, Gregory, Thomas, Courson, O'Dell, Ritchie, Verdin, Leventis, Ford and Elliott
S. Printed 5/30/06--H.
Read the first time May 30, 2006.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 1 TO TITLE 28 SO AS TO ENACT THE SOUTH CAROLINA PRIVATE PROPERTY RIGHTS PROTECTION ACT; TO AMEND SECTIONS 28-2-60 AND 28-2-210, RELATING TO EMINENT DOMAIN BY SUBSTITUTING "PUBLIC USE" FOR "PUBLIC PURPOSE"; TO AMEND SECTION 28-11-30, RELATING TO ACQUISITIONS OF REAL PROPERTY BY STATES AND POLITICAL SUBDIVISIONS, SO AS TO SUBSTITUTE "PUBLIC BODY" FOR "ENTITY"; TO AMEND SECTION 4-9-30, AS AMENDED, RELATING TO A COUNTY'S POWERS UNDER THE ALTERNATE FORMS OF GOVERNMENT, SO AS TO REQUIRE A COUNTY TO ADHERE TO STATEWIDE STANDARDS OF EXERCISING EMINENT DOMAIN AND DELETE PROVISIONS CONCERNING THE USE OF EMINENT DOMAIN TO UNDERTAKE AND CARRY OUT CLEARANCE AND REDEVELOPMENT OF BLIGHTED OR SLUM PROPERTY; AND TO AMEND SECTION 5-7-50, RELATING TO A MUNICIPALITY'S POWER OF EMINENT DOMAIN, SO AS TO REQUIRE A MUNICIPALITY TO ADHERE TO STATEWIDE STANDARDS OF EXERCISING EMINENT DOMAIN AND DELETE PROVISIONS CONCERNING USE OF EMINENT DOMAIN TO UNDERTAKE AND CARRY OUT CLEARANCE AND REDEVELOPMENT OF BLIGHTED OR SLUM PROPERTY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. 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 (a) the date the condemnation action is filed, or (b) 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 State Constitution by which private property may be condemned by eminent domain.
Section 28-1-30. Notwithstanding any other provision of law to the contrary, a condemnor's acquisition of property by eminent domain must comply with the following requirements:
(1) Except as provided in the State Constitution, private property shall not be taken for private use without the consent of the owner, or for public use without just compensation being first made for the property. Private property shall not be condemned by eminent domain for any purpose or benefit, including, but not limited to, the purpose or benefit of economic development, unless the condemnation is for public use.
(2) Only a condemnor shall exercise the power of eminent domain in this State, and a condemnor must 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 State or Federal Constitution 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 a right of first refusal in the conveyance document; or
(6) if a condemnee fails to appear and claim a right of first refusal in the condemnation proceedings.
(B) When 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 or to decline a right of first refusal to repurchase the condemned property as provided in this section if the condemned property is sold less than twenty years after the condemnation date.
(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, if the condemned property is sold by the condemnor less 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:
(1) if the sale occurs up to five years after the condemnation date, the purchase price is no more than the price paid as just compensation for the condemnation;
(2) if the sale occurs more than five years after and up to six years after the condemnation date, then the purchase price is no more than sixty percent of the fair market value of the property or the condemnation price, whichever is greater;
(3) if the sale occurs more than six years after and up to seven years after the condemnation date, then the purchase price is no more than seventy percent of the fair market value of the property or the condemnation price, whichever is greater;
(4) if the sale occurs more than seven years after and up to eight years after the condemnation date, then the purchase price is no more than eighty percent of the fair market value of the property or the condemnation price, whichever is greater;
(5) if the sale occurs more than eight years after and up to nine years after the condemnation date, then the purchase price is no more than ninety percent of the fair market value of the property or the condemnation price, whichever is greater;
(6) if the sale occurs more than nine years after the condemnation date, then the purchase price is no more than one hundred percent of the fair market value of the property.
(D) If the condemnee declines the right of first refusal at the time the property is condemned, then the conveyance document transferring the condemned property from the condemnee to the condemnor shall explicitly state that such right of first refusal has been declined and does not exist.
(E) If the condemnee does not decline the 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 of first refusal if the condemned property is sold by the condemnor less than twenty years after the condemnation date;
(2) provide that the 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 of first refusal has been 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 of first refusal has been transferred:
(1) must 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) must file with the clerk of court or register of deeds and with the condemnor of any change in the permanent address for service of notice;
(3) is conclusively considered to have declined the 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 conclusively considered to have waived any right of first refusal if he fails to appear and claim a right of first refusal in the condemnation proceedings.
(G)(1) If the condemnor provides notice by certified letter, including the name and address of the person to be notified of the intent to exercise the right of first refusal, 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 and the condemnor receives no reply within sixty days of the postmarked date, then the right of first refusal is considered declined and the condemnor may sell the property as provided by law. If the condemnor receives a written reply, the condemnor must file the reply with the clerk of court or register of deeds.
(2) The 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 by 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 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) Where 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 shall be made to the current owner of the parent tract.
(I) Prior to the sale, lease, or transfer of the property acquired as an uneconomic remainder, the condemnor must notify owners of land contiguous to the economic remainder and offer an opportunity to bid to purchase or lease the property."
SECTION 2. 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 chapter is designed to 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 must be resolved in a manner consistent with this declaration.
(D) In the event of conflict between this act chapter and any other law with respect to any subject governed by this act chapter, this act shall chapter must prevail."
SECTION 3. Section 28-2-30(7) of the 1976 Code is amended to read:
"(7) 'Condemnor' means a person or other entity empowered by the General Assembly or federal government to condemn private property by eminent domain."
SECTION 4. 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 5. 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 6. 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 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 programs or projects are empowered to expend available public funds as provided hereafter, whether or not the program or project is federally aided.
(1) Any person, agency or other entity condemnor acquiring real property for public use in any 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, reimburse the owner, to the extent the State deems fair and reasonable, for expenses he necessarily incurred for (a) recording fees, transfer taxes and similar expenses incidental to conveying such real property to the State; (b) penalty costs for prepayment for preexisting recorded mortgage entered into in good faith encumbering such real property; and (c) the pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting title in the agency concerned, or the effective date of possession of such real property by such agency, whichever is the earlier.
(2) Where a condemnation proceeding is instituted by the agency to acquire real property for such use and (i) the final judgment is that the real property cannot be acquired by condemnation or (ii) the proceeding is abandoned, the owner of any right, title, or interest in such real property shall be paid such sum as will, in the opinion of the agency, reimburse such owner for his reasonable attorney, appraisal, and engineering fees actually incurred because of the condemnation proceedings. The award of such sums will be paid by the person, agency or other entity which sought to condemn the property condemnor.
(3) Where 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 program or project, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the attorney effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the agency's attorney, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding."
SECTION 7. (A) A South Carolina Eminent Domain Study Committee is created to review the condemnation authority exercised by any state agency, local government, joint agency, regional authority, political subdivision, or other entity that possesses the power of eminent domain in this State. The study committee shall evaluate if each entity's exercise of its condemnation authority meets or exceeds the constitutional, statutory, and case law requirements concerning eminent domain in this State and make a report of its findings to the General Assembly. In addition, the study committee shall consider the provisions of the State Constitution concerning use of eminent domain for slum clearance and redevelopment and recommend to the General Assembly if these provisions need to be deleted or amended. The report may include recommendations, if appropriate, for legislative changes to conform or restrict the condemnation authority the entities exercise. In preparing its report, the study committee must request, receive, and consider (1) testimony and written materials submitted by the entities that possess the power of eminent domain, and (2) information solicited from or provided by experts and interested persons in the fields of property rights and eminent domain.
(B) The study committee must be composed of nine members: the Chairman of the Senate Judiciary Committee shall appoint three members, two of whom must be Senators; the Chairman of the House Judiciary Committee shall appoint three members, two of whom must be members of the House of Representatives; and the Governor shall appoint three members.
(C) The study committee shall render its report and recommendations to the Chairman of the Senate Judiciary Committee, the Chairman of the House Judiciary Committee, and the Governor no later than February 20, 2007, at which time the study committee must be dissolved.
(D) Members of the study committee shall serve until their successors are appointed and qualify, and vacancies must be filled for the remainder of the unexpired term in the manner of original appointment.
(E) The study committee must be co-chaired by the senior member of the Senate and the senior member of the House of Representatives serving on the study committee. Notwithstanding the provisions of Section 8-13-770 of the 1976 Code, members of the General Assembly may be appointed to serve on this study committee.
(F) The Chairman of the Senate Judiciary Committee and the Chairman of the House Judiciary Committee shall provide staffing for the study committee.
(G) Members of the study committee may receive per diem, subsistence, and mileage as provided by law for members of state boards, committees, and commissions.
(H) Upon the filing of its report, the study committee is dissolved.
(I) The General Assembly is aware that comparable provisions relating to the study committee herein created also are contained in S. 1029, and the General Assembly hereby expresses its legislative intent that the provisions of this act supersede and control the provisions relating to this study committee, including those contained in S. 1029.
SECTION 8. 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 9. All provisions contained in this act take effect July 1, 2006, and apply to any exercise of eminent domain in this State where the date of taking is on or after July 1, 2006. For purposes of this section, "date of taking" means the date when the condemnor files the formal condemnation notice with the clerk of court.
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