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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 823
Introduced by Brewer, 43.
Read first time January 08, 2020
Committee: Judiciary
1 A BILL FOR AN ACT relating to public power; to amend sections 15-229,
2 18-2441, 25-2503, 70-501, 70-667, and 70-670, Reissue Revised
3 Statutes of Nebraska, section 25-2501, Revised Statutes Cumulative
4 Supplement, 2018, and section 19-701, Revised Statutes Supplement,
5 2019; to require a special election prior to the use of eminent
6 domain for transmission lines in certain circumstances; to harmonize
7 provisions; and to repeal the original sections.
8 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 15-229, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 15-229 A primary city of the primary class is hereby authorized to
4 acquire, either temporarily or permanently, lands, real or personal
5 property or any interests therein, or any easements deemed to be
6 necessary or desirable for any present or future necessary or authorized
7 public purpose within or without the city by gift, agreement, purchase,
8 condemnation, or otherwise. In all such cases the city shall provide make
9 the person or persons whose property is shall be taken or injured thereby
10 adequate compensation therefor. Prior to exercising the power of eminent
11 domain on behalf of an out-of-state third party for purposes of
12 transmission lines for electric power, the city shall submit such
13 proposition to the registered voters of the city at a special election
14 under the Election Act held for that purpose, and if a majority of the
15 votes cast upon such proposition are in favor of exercising the power of
16 eminent domain, the city may proceed with condemnation. The procedure to
17 condemn property shall be exercised in the manner set forth in sections
18 76-704 to 76-724. A primary city of the primary class shall have
19 authority to enter upon any property to make surveys, examinations,
20 investigations, and tests, and to acquire other necessary and relevant
21 data in contemplation of establishing a location of a necessary or
22 authorized public purpose, acquiring property therefor, or performing
23 other operations incident to construction, reconstruction, or maintenance
24 of such public purpose, and entry upon any property pursuant to this
25 authority shall not be considered to be a legal trespass and no damages
26 shall be recovered on that account alone. In case of any actual or
27 demonstrable damages to the premises, the city shall pay the owner of the
28 premises the amount of the damages. Upon the failure of the landowner and
29 the city to agree upon the amount of damages, the landowner, in addition
30 to any other available remedy, may file a petition as provided for in
31 section 76-705. The entry by the city or its representatives shall be
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1 made only after notice of the entry and its purpose.
2 Sec. 2. Section 18-2441, Reissue Revised Statutes of Nebraska, is
3 amended to read:
4 18-2441 The powers of an agency shall include the power:
5 (1) To plan, develop, construct, reconstruct, operate, manage,
6 dispose of, participate in, maintain, repair, extend, improve, or acquire
7 by purchase, gift, lease, or otherwise, one or more projects within or
8 outside this state and act as agent, or designate one or more other
9 persons to act as its agent, in connection with the planning,
10 acquisition, construction, operation, maintenance, repair, extension, or
11 improvement of such project, except that before any power project is
12 constructed by an agency, approval of the power project shall have been
13 obtained from the Nebraska Power Review Board under sections 70-1012 to
14 70-1016;
15 (2) To produce, acquire, sell, and distribute commodities,
16 including, without limitation, fuels necessary to the ownership, use,
17 operation, or maintenance of one or more projects;
18 (3) To enter into franchises, exchange, interchange, pooling,
19 wheeling, transmission, and other similar agreements;
20 (4) To make and execute contracts and other instruments necessary or
21 convenient to the exercise of the powers of the agency;
22 (5) To employ agents and employees;
23 (6) To contract with any person within or outside this state for the
24 sale or transmission of any service, product, or commodity supplied,
25 transmitted, conveyed, transformed, produced, or generated by any
26 project, or for any interest therein or any right to capacity thereof, on
27 such terms and for such period of time as the agency's board shall
28 determine;
29 (7) To purchase, sell, exchange, produce, generate, transmit, or
30 distribute any service, product, or commodity within and outside the
31 state in such amounts as it shall determine to be necessary and
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1 appropriate to make the most effective use of its powers and to meet its
2 responsibilities, and to enter into agreements with any person with
3 respect to such purchase, sale, exchange, production, generation,
4 transmission, or distribution on such terms and for such period of time
5 as the agency's board shall determine;
6 (8) To acquire, own, hold, use, lease, as lessor or lessee, sell, or
7 otherwise dispose of, mortgage, pledge, or grant a security interest in
8 any real or personal property, commodity, product, or service or any
9 interest therein or right thereto;
10 (9) To exercise the power of eminent domain in the manner set forth
11 in Chapter 76, article 7. No real property of the state, any
12 municipality, or any political subdivision of the state, may be so
13 acquired without the consent of the state, such municipality, or such
14 subdivision. Prior to exercising the power of eminent domain on behalf of
15 an out-of-state third party for purposes of transmission lines for
16 electric power, the agency shall submit such proposition to the
17 registered voters of each of the municipalities participating in the
18 creation of such agency at a special election under the Election Act held
19 for that purpose, and if a majority of the votes cast upon such
20 proposition are in favor of exercising the power of eminent domain, the
21 agency may proceed with condemnation;
22 (10) To incur debts, liabilities, or obligations including the
23 borrowing of money and the issuance of bonds, secured or unsecured,
24 pursuant to the Municipal Cooperative Financing Act sections 18-2401 to
25 18-2485;
26 (11) To borrow money or accept contributions, grants, or other
27 financial assistance from a public authority and to comply with such
28 conditions and enter into such contracts, covenants, mortgages, trust
29 indentures, leases, or agreements as may be necessary, convenient, or
30 desirable;
31 (12) To fix, maintain, revise, and collect fees, rates, rents, and
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1 charges for functions, services, facilities, or commodities provided by
2 the agency, and it shall be the mandatory duty of each agency to fix,
3 maintain, revise, and collect such fees, rates, rents, and charges as
4 will always be sufficient to pay all operating and maintenance expenses
5 of the agency, to pay for costs of renewals and replacements to a
6 project, to pay interest on and principal of, whether at maturity or upon
7 sinking-fund redemption, any outstanding bonds or other indebtedness of
8 the agency, and to provide, as may be required by a resolution, trust
9 indenture, security instrument, or other agreement of the agency, for any
10 reasonable reserves for any such expenses, costs, or debt service or for
11 any margins or coverages over and above debt service;
12 (13) Subject to any agreements with holders of outstanding bonds, to
13 invest any funds held in reserve or sinking funds, or any funds not
14 required for immediate disbursement, including the proceeds from the sale
15 of any bonds, in such obligations, securities, and other investments as
16 the board shall deem proper;
17 (14) To join and pay dues to organizations, membership in which is
18 deemed by the board to be beneficial to the accomplishment of the
19 agency's purposes; and
20 (15) To exercise any other powers which are deemed necessary and
21 convenient to carry out the Municipal Cooperative Financing Act sections
22 18-2401 to 18-2485.
23 Sec. 3. Section 19-701, Revised Statutes Supplement, 2019, is
24 amended to read:
25 19-701 (1) Whenever the qualified electors of any city of the
26 primary class, city of the first class, city of the second class, or
27 village shall vote at any general or special election to acquire and
28 appropriate, by an exercise of the power of eminent domain, any
29 waterworks, waterworks system, electric light plant, electric light and
30 power plant, heating plant, street railway, or street railway system,
31 located or operating within or partly within and partly without such city
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1 or village, together with real and personal property needed or useful in
2 connection therewith, if the main part of such works, plant, or system be
3 within such city or village and even though a franchise for the
4 construction and operating of any such works, plant, or system may or may
5 not have expired, then such city or village shall possess and have the
6 power and authority, by an exercise of the power of eminent domain to
7 appropriate and acquire, for the public use of such city or village, any
8 such works, plant, railway, pipelines, or system.
9 (2) If any public utility properties supplying different kinds of
10 service to such city or village are operated as one unit and under one
11 management, the right to acquire and appropriate, as provided in sections
12 19-701 to 19-707, shall cover and extend to the entire property and not
13 to any divided or segregated part thereof, and the duly constituted
14 authorities of such city or village shall have the power to submit such
15 question or proposition, in the usual manner, to the qualified electors
16 of such city or village at any general city or village election or at any
17 special city or village election and may submit the proposition in
18 connection with any city or village special election called for any other
19 purpose, and the votes cast thereon shall be canvassed and the result
20 found and declared as in any other city or village election.
21 (3) Such city or village authorities shall submit such question at
22 any such election whenever a petition asking for such submission, signed
23 by the legal voters of such city or village equaling in number fifteen
24 percent of the votes cast at the last general city or village election,
25 and filed in the city clerk's or village clerk's office at least sixty
26 days before the election at which the submission is presented, but if the
27 question of acquiring any particular plant or system has been submitted
28 once, the same question shall not again be submitted to the voters of
29 such city or village until two years shall have elapsed from and after
30 the date of the findings by the board of appraisers regarding the value
31 of the property and the city's or village's rejection of such question.
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1 (4) Prior to exercising the power of eminent domain on behalf of an
2 out-of-state third party for purposes of transmission lines for electric
3 power, the city or village shall submit such proposition to the
4 registered voters of the city or village at a special election under the
5 Election Act held for that purpose, and if a majority of the votes cast
6 upon such proposition are in favor of exercising the power of eminent
7 domain, the city council or village board of trustees may proceed with
8 condemnation.
9 Sec. 4. Section 25-2501, Revised Statutes Cumulative Supplement,
10 2018, is amended to read:
11 25-2501 It is the intent and purpose of sections 25-2501 to 25-2506
12 to establish a uniform procedure to be used in acquiring private property
13 for a public purpose by the State of Nebraska and its political
14 subdivisions and by all privately owned public utility corporations and
15 common carriers which have been granted the power of eminent domain. Such
16 sections shall not apply to:
17 (1) Water transmission and distribution pipelines and their
18 appurtenances and common carrier pipelines and their appurtenances;
19 (2) Public utilities and cities of all classes and villages when
20 acquiring property for a proposed project involving the acquisition of
21 rights or interests in ten or fewer separately owned tracts or when the
22 acquisition is within the corporate limits of any city or village except
23 as otherwise provided in section 25-2503;
24 (3) Sanitary and improvement districts organized under sections
25 31-727 to 31-762 when acquiring easements for a proposed project
26 involving the acquisition of rights or interests in ten or fewer
27 separately owned tracts;
28 (4) Counties and municipalities which acquire property through the
29 process of platting or subdivision or for street or highway construction
30 or improvements;
31 (5) Common carriers subject to regulation by the Federal Railroad
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1 Administration of the United States Department of Transportation; or
2 (6) The Nebraska Department of Transportation when acquiring
3 property for highway construction or improvements.
4 Sec. 5. Section 25-2503, Reissue Revised Statutes of Nebraska, is
5 amended to read:
6 25-2503 (1) Prior to exercising the power of eminent domain on
7 behalf of an out-of-state third party for purposes of transmission lines
8 for electric power, an agency which is a political subdivision of the
9 state shall submit such proposition to the registered voters of the
10 agency at a special election under the Election Act held for that
11 purpose, and if a majority of the votes cast upon such proposition are in
12 favor of exercising the power of eminent domain, the agency may proceed
13 with condemnation as provided in sections 25-2501 to 25-2506.
14 (2) Any agency which proposes to acquire private property for a
15 public purpose shall give notice of such proposed acquisition at least
16 forty-five days before beginning negotiations for such acquisition. The
17 notice shall be directed to each owner of property over or across which
18 any right or interest is to be acquired and shall be deemed properly
19 given if delivered personally or mailed by registered or certified mail
20