2024 South Dakota Legislature

House Bill 1246

An Act to establish a pre-condemnation process and to require reclamation and restoration of property damaged by condemnation.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That a NEW SECTION be added to title 21:

Terms used in this chapter mean:

(1) "Appraisal," the act or process of developing an opinion of the value of property for another, conducted by an individual certified, licensed, or registered under chapter 36-21B.

(2) "Condemn," to take property under the power of eminent domain;

(3) "Condemnee," a person who has or claims an interest in property that is the subject of a prospective or pending condemnation action;

(4) "Condemnor," a person empowered to condemn; and

(5) "Property," an interest in real or personal property under the laws of this state.

Section 2. That a NEW SECTION be added to title 21:

A condemnor shall make every reasonable and diligent effort to acquire the property of a condemnee by good faith negotiation, as required by section 11 of this Act.

Section 3. That a NEW SECTION be added to title 21:

Before initiating good faith negotiations for the acquisition of a condemnee's property, the condemnor shall have an appraisal of the property completed to determine the amount that would constitute just compensation for its taking. The condemnee or the condemnee's representative must be given a reasonable opportunity to accompany the appraiser during the appraisal of the property.

For purposes of the good faith negotiations as described under section 13 of this Act, the condemnor may not offer the condemnee less than the appraised amount resulting from the appraisal required under this section.

Before entering good faith negotiations with the condemnee, the condemnor shall provide the condemnee with a copy of the appraisal required under this section.

In determining the amount of just compensation, the condemnor shall disregard any decrease or increase in the fair market value of the property caused by the project for which the property is to be acquired.

Section 4. That a NEW SECTION be added to title 21:

A condemnor, or the condemnor's agent, may enter a condemnee's private property to examine and survey the property for the purpose of appraisal and to determine if the property is suitable for the project, is within the power of the condemnor to condemn, and the potential location of the project on the property.

The entry must be:

(1) Preceded by prior notice to the condemnee, which must be provided by the condemnor at least thirty days before the planned entry, specifying:

(a) The proposed project being pursued;

(b) The activity to be undertaken on the property;

(c) The name, address, telephone number, and e-mail address of the condemnor or the condemnor's designee; and

(d) The proposed use and potential recipient of any property data collected;

(2) Scheduled with the condemnee so that the condemnee is able to be present during the planned entry;

(3) Undertaken at a reasonable time during daylight hours; and

(4) Accomplished peaceably and without inflicting substantial injury to land, crops, improvements, livestock, or business operations.

A condemnor shall locate a condemnation project in a manner this is compatible with the greatest public benefit and the least amount of private injury.

Section 5. That a NEW SECTION be added to title 21:

In addition to the pre-entry requirements under section 4 of this Act, if a condemnor is seeking to establish a project that requires a siting permit under chapter 49-41B, the condemnor may enter the private property of a condemnee, if the condemnor:

(1) Files a siting permit application with the Public Utilities Commission pursuant to   49-41B-11;

(2) Provides a copy of the siting permit application to the condemnee at least thirty days before the planned entry to the condemnee's property; and

(3) Makes a payment to the condemnee in the amount of five hundred dollars or provides sufficient security for the payment, for any actual damage done to the property by the entry.

Section 6. That a NEW SECTION be added to title 21:

If reasonable efforts to accomplish an entry to perform authorized activities on private property under section 4 or 5 of this Act have been obstructed or denied, the condemnor may petition the circuit court in the county where the property is located for an order permitting entry.

Unless the condemnee shows good cause to the contrary, the court shall make its order permitting and describing the purpose of the entry and setting forth the nature and scope of activities the court determines are reasonably necessary and authorized to be made on the property. In addition to requiring a deposit under section 7 of this Act, the court shall include in its order the terms and conditions for the time, place, and manner of the planned entry and any activities authorized on the property to facilitate the purpose of the entry and minimize damage, hardship, and burden to each party.

Section 7. That a NEW SECTION be added to title 21:

If a court orders entry as allowed by section 6 of this Act, the court must include in its order a determination of the amount of money needed, if any, to fairly compensate the condemnee or any other person in lawful possession or physical occupancy of the property for damages for physical injury to the property and for substantial interference with its possession or use, which the court finds is likely to be caused by the entry and activities authorized by the order. The court order must include a requirement that the condemnor deposit with the court the amount of money provided in the order before entry on the property.

Unless disbursed earlier by court order, the amount deposited must be retained on deposit for six months following termination of the entry. The court for good cause may extend the period of retention.

Section 8. That a NEW SECTION be added to title 21:

After notice and hearing, the court may modify an order made under section 6 of this Act.

If a deposit is required or the amount required to be deposited is increased by a modification to the court order, the court must specify the time within which the required amount must be deposited and may direct that any further entry, activity, or study under the order as modified be stayed until the required deposit has been made.

Section 9. That a NEW SECTION be added to title 21:

A condemnor is liable for physical injury to and for substantial interference with possession or use of property caused by the condemnor's entry and activity on the condemnee's property. This liability may be enforced in a civil action against the condemnor or by application to the court as provided by this section unless voluntarily paid by the condemnor.

If moneys are on deposit as required by section 7 of this Act, the condemnee or other person entitled to damages under this section may apply to the court for an award of the amount entitled to be recovered. The court shall determine the award amount and direct that its payment be made from the money on deposit. If the amount on deposit is insufficient to pay the full amount, the court must enter judgment against the condemnor for the unpaid portion.

Section 10. That a NEW SECTION be added to title 21:

In an action or other proceeding for recovery of damages under section 9 of this Act, the court may award the prevailing party attorney fees and costs incurred by or on behalf of the prevailing party.

Section 11. That a NEW SECTION be added to title 21: