January 22, 2013, Introduced by Rep. Geiss and referred to the Committee on Tax Policy.
A bill to amend 1980 PA 87, entitled
"The uniform condemnation procedures act,"
by amending section 5 (MCL 213.55), as amended by 2006 PA 439.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5. (1) Before initiating negotiations for the purchase of
property, the agency shall establish an amount that it believes to
be just compensation for the property and promptly shall submit to
the owner a good faith written offer to acquire the property for
the full amount so established. At the same time, if the taking of
the property might require relocation, the agency shall provide
written notice to the occupants of the property stating that an
eminent domain proceeding has commenced and outlining the
occupants' basic legal rights in the process, including, but not
limited to, the fact that any person who has a leasehold interest
of less than 6 months is entitled to a $3,500.00 moving allowance
as provided under section 2 of 1965 PA 40, MCL 213.352, and that an
individual who is a residential occupant may not be displaced until
moving expenses or a moving allowance is paid as provided under
1965 PA 40, MCL 213.351 to 213.355, and the person has had a
reasonable opportunity, not to exceed 180 days after the payment
date of moving expenses or the moving allowance as provided under
1965 PA 40, MCL 213.351 to 213.355, to relocate to a comparable
replacement dwelling. If there is more than 1 owner of a parcel,
the agency may make a single, unitary good faith written offer. The
good faith offer shall state whether the agency reserves or waives
its rights to bring federal or state cost recovery actions against
the present owner of the property arising out of a release of
hazardous substances at the property, and the agency's appraisal of
just
compensation for the property shall reflect such the
reservation or waiver. The amount shall not be less than the
agency's appraisal of just compensation for the property. If the
owner fails to provide documents or information as required by
subsection (2), the agency may base its good faith written offer on
the information otherwise known to the agency whether or not the
agency has sought a court order under subsection (2). The agency
shall provide the owner of the property and the owner's attorney
with an opportunity to review the written appraisal, if an
appraisal has been prepared, or, if an appraisal has not been
prepared, the agency shall provide the owner or the owner's
attorney with a written statement and summary, showing the basis
for the amount the agency established as just compensation for the
property. If an agency is unable to agree with the owner for the
purchase of the property, after making a good faith written offer
to purchase the property, the agency may file a complaint for the
acquisition of the property in the circuit court in the county in
which the property is located. If a parcel of property is situated
in 2 or more counties and an owner resides in 1 of the counties,
the complaint shall be filed in the county in which the owner is a
resident. If a parcel of property is situated in 2 or more counties
and an owner does not reside in 1 of the counties, the complaint
may be filed in any of the counties in which the property is
situated. The complaint shall ask that the court ascertain and
determine just compensation to be made for the acquisition of the
described property. As used in this subsection, "comparable
replacement dwelling" means any dwelling that is all of the
following:
(a) Decent, safe, and sanitary.
(b) Adequate in size to accommodate the occupants.
(c) Within the financial means of the individual.
(d) Functionally equivalent.
(e) In an area not subject to unreasonable adverse
environmental conditions.
(f) In a location generally not less desirable than the
location of the individual's dwelling with respect to public
utilities, facilities, services, and the individual's place of
employment.
(2) During the period in which the agency is establishing just
compensation
for the owner's parcel, the agency has the right to
may secure tax returns, financial statements, and other relevant
financial information for a period not to exceed 5 years before the
agency's request. The owner shall produce the information within 21
business days after receipt of a written request from the agency.
The agency shall reimburse the owner for actual, reasonable costs
incurred in reproducing any requested documents, plus other actual,
reasonable costs of not more than $1,000.00 incurred to produce the
requested information. Within 45 days after production of the
requested documents and other information, the owner shall provide
to the agency a detailed invoice for the costs of reproduction and
other costs sought. The owner is not entitled to a reimbursement of
costs under this subsection if the reimbursement would be
duplicative of any other reimbursement to the owner. If the owner
fails to provide all documents and other information requested by
the
agency under this section, subsection,
the agency may file a
complaint and proposed order to show cause in the circuit court in
the county specified in subsection (1). The court shall immediately
hold a hearing on the agency's proposed order to show cause. The
court shall order the owner to provide documents and other
information requested by the agency that the court finds to be
relevant to a determination of just compensation. An agency shall
keep documents and other information that an owner provides to the
agency
under this section subsection
confidential. However, the
agency and its experts and representatives may utilize the
documents and other information to determine just compensation, may
utilize the documents and other information in legal proceedings
under this act, and may utilize the documents and other information
as provided by court order. If the owner unreasonably fails to
timely produce the documents and other information, the owner shall
be responsible for all expenses incurred by the agency in obtaining
the documents and other information. This section does not affect
any right a party may otherwise have to discovery or to require the
production of documents and other information upon commencement of
an action under this act. A copy of this section shall be provided
to the owner with the agency's request.
(3) In determining just compensation, all of the following
apply:
(a) If an owner claims that the agency is taking property
other than the property described in the good faith written offer
or claims a right to compensation for damage caused by the taking,
apart from the value of the property taken, and not described in
the good faith written offer, the owner shall file a written claim
with the agency stating the nature and substance of that property
or damage. The owner's written claim shall provide sufficient
information and detail to enable the agency to evaluate the
validity of the claim and to determine its value. The owner shall
file the claim within 90 days after the good faith written offer is
made
pursuant to section 5(1) subsection
(1) or 180 days after the
complaint is served, whichever is later, unless a later date is set
by the court for reasonable cause. If the appraisal or written
estimate of value is provided within the established period for
filing written claims, the owner's appraisal or written estimate of
value may serve as the written claim under this act. If the owner
fails to timely file the written claim under this subsection, the
claim is barred.
(b) The parties shall exchange the agency's updated appraisal
reports, if any, and the owner's appraisal report within 90 days
after the expiration of the period for filing written claims,
unless a later date is set by the court in accordance with section
11(1) for reasonable cause. If the agency believes that the
information provided by the owner is not sufficient to allow the
evaluation of the claim, the agency may request additional
information from the owner and, if that information is not
provided, may ask the court to compel the owner to provide
additional information to enable the agency to evaluate the
validity of the claim and to determine its value. If the owner
fails to provide sufficient information after being ordered to do
so by the court, the court may assess an appropriate sanction in
accordance with the Michigan court rules for failing to comply with
discovery orders, including, but not limited to, barring the claim.
In addition, the court also shall consider any failure to provide
timely information when it determines the maximum reimbursable
attorney fees under section 16.
(c) For any claim that has not fully accrued or is continuing
in nature when the claim is filed, the owner shall provide
information then reasonably available that would enable the agency
to evaluate the claim, subject to the owner's continuing duty to
supplement that information as it becomes available. The owner
shall provide all supplementary information at least 90 days before
trial, and the court shall afford the agency a reasonable
opportunity for discovery once all supplementary information is
provided and allow that discovery to proceed until 30 days before
trial. For reasonable cause, the court may extend the time for the
owner to provide information to the agency and for the agency to
complete discovery. If the owner fails to provide supplementary
information as required under this subdivision, the court may
assess an appropriate sanction in accordance with the Michigan
court rules for failing to comply with discovery orders, including,
but not limited to, barring the claim. In addition, the court also
shall consider any failure to provide timely supplemental
information when it determines the maximum reimbursable attorney
fees under section 16.
(d) After receiving a written claim from an owner, the agency
may provide written notice that it contests the compensability of
the claim, establish an amount that it believes to be just
compensation for the claim, or reject the claim. If the agency
establishes an amount it believes to be just compensation for the
claim, the agency shall submit a good faith written offer for the
claim. The sum of the good faith written offer for all claims
submitted under this subsection or otherwise disclosed in discovery
for all items of property or damage plus the original good faith
written offer constitutes the good faith written offer for purposes
of determining the maximum reimbursable attorney fees under section
16.
(e) If the owner files a claim that is frivolous or in bad
faith, the agency is entitled to recover from the owner its actual
and reasonable expenses incurred to evaluate the validity and to
determine the value of the claim.
(f) A residential tenant's leasehold interest of less than 6
months in the property is not a compensable claim under this act.
(4) In addition to other allegations required or permitted by
law, the complaint shall contain or have annexed to it all of the
following:
(a) A plan showing the property to be taken.
(b) A statement of purpose for which the property is being
acquired, and a request for other relief to which the agency is
entitled by law.
(c) The name of each known owner of the property being taken.
(d) A statement setting forth the time within which motions
for review under section 6 shall be filed; the amount that will be
awarded and the persons to whom the amount will be paid in the
event of a default; and the deposit and escrow arrangements made
under subsection (5).
(e) A declaration signed by an authorized official of the
agency declaring that the property is being taken by the agency.
The declaration shall be recorded with the register of deeds of
each county within which the property is situated. The declaration
shall include all of the following:
(i) A description of the property to be acquired sufficient for
its identification and the name of each known owner.
(ii) A statement of the estate or interest in the property
being taken. Fluid mineral and gas rights and rights of access to
and over the highway are excluded from the rights acquired unless
the rights are specifically included.
(iii) A statement of the sum of money estimated by the agency to
be just compensation for each parcel of property being acquired.
(iv) Whether the agency reserves or waives its rights to bring
federal or state cost recovery actions against the present owner of
the property.
(5) When the complaint is filed, the agency shall deposit the
amount estimated to be just compensation with a bank, trust
company, or title company in the business of handling real estate
escrows, or with the state treasurer, municipal treasurer, or
county treasurer. The deposit shall be set aside and held for the
benefit of the owners, to be disbursed upon order of the court
under section 8.
(6) If the property being taken is a principal residence for
which an exemption from certain local taxation is granted under
section 7cc of the general property tax act, 1893 PA 206, MCL
211.7cc,
the agency is obligated to shall
pay an additional amount
to the owner or owners, which shall be deposited along with the
amount estimated to be just compensation as provided in subsection
(5). The additional amount shall be determined by subtracting the
taxable value from the state equalized value, multiplying that
amount by the total property tax millage rate applicable to the
property taken, and multiplying that result by the number of years
the owner or owners have owned the principal residence, but not
more
than 5 years. the
following number of years:
(a) Except as provided in subdivision (b), 5 years.
(b) Ten years, if, within 180 days after title to the property
being taken vests in the agency, the owner or owners purchase a
replacement dwelling to be used as their principal residence that
is located in the same city, village, or township as the property
being taken.
(7) As used in this section, "taxable value" means that value
determined under section 27a of the general property tax act, 1893
PA 206, MCL 211.27a.