6A.22 - ADDITIONAL LIMITATIONS ON EXERCISE OF POWER -- DEFINITIONS.
6A.22 ADDITIONAL LIMITATIONS ON EXERCISE OF POWER --
DEFINITIONS.
1. In addition to the limitations in section 6A.21, the authority
of an acquiring agency to condemn any private property through
eminent domain may only be exercised for a public purpose, public
use, or public improvement. However, if the owner of the property
consents to the condemnation, the property may be condemned for any
purpose.
2. a. "Public use", "public purpose", or "public
improvement" means one or more of the following:
(1) The possession, occupation, and enjoyment of property by the
general public or governmental entities.
(2) The acquisition of any interest in property necessary to the
function of a public or private utility, common carrier, or airport
or airport system.
(3) Private use that is incidental to the public use of the
property, provided that no property shall be condemned solely for the
purpose of facilitating such incidental private use.
(4) The acquisition of property pursuant to chapter 455H.
(5) (a) The acquisition of property for redevelopment purposes
and to eliminate slum or blighted conditions in that portion of an
urban renewal area designated as a slum or blighted area if each
parcel, or any improvements thereon, for which condemnation is sought
is determined by the governing body of the municipality to be in a
slum or blighted condition. However, for a project or acquisition
plan adopted by the governing body of a municipality after due
deliberation and public input, if seventy-five percent or more of the
area included in the plan consists of property in a slum or blighted
condition at the time the plan was established, the entire project or
acquisition plan area is subject to condemnation by the municipality.
The project or acquisition plan area shall only include the adjacent
and contiguous parcels necessary for the completion of planned
activities for a specific business or housing project. Before a
municipality exercises its eminent domain authority to acquire
properties in a project or acquisition plan area that are not in a
slum or blighted condition, the municipality shall be required to
adopt a resolution by a two-thirds majority to authorize the
acquisition of such property by eminent domain. The resolution shall
make a finding that includes at a minimum all of the following:
(i) The taking of such property is necessary to achieve the
project or acquisition plan objectives.
(ii) The taking of property for the project or acquisition plan
will eliminate or rehabilitate the slum and blighted conditions in
the area.
(iii) If the specific project is for a business, the proposed
project or acquisition plan will confer economic benefits upon the
municipality.
(b) For purposes of this subparagraph (5):
(i) "Blighted condition" means the presence of a substantial
number of slum or deteriorated structures; insanitary or unsafe
conditions; excessive and uncorrected deterioration of site or other
improvements; tax or special assessment delinquency exceeding the
fair value of the land; defective or unusual conditions of title; or
the existence of conditions which endanger life or property by fire
and other causes; or the existence of conditions which retard the
provision of housing accommodations for low or moderate income
families, or is a menace to the public health and safety in its
present condition and use.
(ii) "Slum condition" means a condition conducive to ill
health, transmission of disease, infant mortality, juvenile
delinquency, or crime, or detrimental to the public health and safety
due to a predominance of buildings or improvements, whether
residential or nonresidential, by reason of the following: by reason
of dilapidation, deterioration that is excessive and uncorrected, age
or obsolescence; by reason of inadequate provision for sanitation; by
reason of high density of population and overcrowding; by reason of
the existence of conditions which endanger life or property by fire
and other causes; or by reason of any combination of such factors.
(iii) In no case shall land that is agricultural land be
determined to be in a slum condition or blighted condition.
(iv) "Project or acquisition plan" means the planned
activities of a municipality to rehabilitate or redevelop specific
property in that portion of an urban renewal area designated as a
slum or blighted area pursuant to chapter 403. The planned
activities may include the sale and acquisition of property;
demolition and removal of buildings and improvements; construction,
repair, and rehabilitation of buildings or other improvements; and
installation, construction, or reconstruction of streets and
utilities.
(v) "Economic benefits" means the creation of new employment
opportunities or the retention of employment opportunities.
b. Except as specifically included in the definition in
paragraph "a", "public use" or "public purpose" or
"public improvement" does not mean economic development
activities resulting in increased tax revenues, increased employment
opportunities, privately owned or privately funded housing and
residential development, privately owned or privately funded
commercial or industrial development, or the lease of publicly owned
property to a private party.
c. Notwithstanding paragraph "a":
(1) (a) If private property is to be condemned for development or
creation of a lake, only that number of acres justified as necessary
for a surface drinking water source, and not otherwise acquired, may
be condemned. In addition, the acquiring agency shall conduct a
review of prudent and feasible alternatives to provision of a
drinking water source prior to making a determination that such lake
development or creation is reasonable and necessary. Development or
creation of a lake as a surface drinking water source includes all of
the following:
(i) Construction of the dam, including sites for suitable borrow
material and the auxiliary spillway.
(ii) The water supply pool.
(iii) The sediment pool.
(iv) The flood control pool.
(v) The floodwater retarding pool.
(vi) The surrounding area upstream of the dam no higher in
elevation than the top of the dam's elevation.
(vii) The appropriate setback distance required by state or
federal laws and regulations to protect drinking water supply.
(b) For purposes of this subparagraph (1), "number of acres
justified as necessary for a surface drinking water source" means
according to guidelines of the United States natural resource
conservation service and according to analyses of surface drinking
water capacity needs conducted by one or more registered professional
engineers.
(2) The use of eminent domain authority to acquire private
property in the unincorporated area of a county for use as an
airport, airport system, or aviation facilities is prohibited,
notwithstanding any provision of the law to the contrary, if the
property to be condemned is located outside the geographic boundaries
of the city or county operating the airport, airport system, or
aviation facilities or outside the geographic boundaries of the
member municipalities of the commission or authority. However, an
acquiring agency may proceed with condemnation of property under
these circumstances if the board of supervisors of the county where
the property for which condemnation is sought is located holds a
public hearing on the matter and subsequent to the hearing approves,
by resolution, the condemnation action. This subparagraph does not
apply if any of the following conditions is met:
(a) The property to be condemned is for an improvement to an
existing airport, airport system, or aviation facilities if such
improvement is required by federal law, regulation, or order or if
such improvement is included in an airport layout plan approved by
the federal aviation administration for the existing site of the
airport, airport system, or aviation facilities.
(b) The property to be condemned has been zoned by a city or
county for use as an airport, airport system, or aviation facilities.
(c) The property to be condemned is for a proposed airport,
airport system, or aviation facilities that as of July 1, 2006, were
designated in the federal aviation administration national plan for
integrated airport services, and the property to be condemned is
located within the county where at least one of the cities that will
participate in operation of the proposed airport, airport system, or
aviation facilities is located. Section History: Recent Form
2006 Acts, 1st Ex, ch 1001, §3, 49; 2008 Acts, ch 1032, § 201 Footnotes
Section is effective July 14, 2006, and applies to applications
for condemnation filed pursuant to § 6B.3 on or after that date; 2006
Acts, 1st Ex, ch 1001, § 49