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Right of First Refusal Vacant Land Purchase

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					                                   South Carolina General Assembly
                                       117th Session, 2007-2008

S. 130

STATUS INFORMATION

General Bill
Sponsors: Senators Campsen and Ryberg
Document Path: l:\council\bills\agm\18630mm07.doc
Companion/Similar bill(s): 3067

Introduced in the Senate on January 9, 2007
Currently residing in the Senate Committee on Judiciary

Summary: Private Property Rights Protection Act


HISTORY OF LEGISLATIVE ACTIONS

    Date     Body     Action Description with journal page number
 12/6/2006   Senate   Prefiled
 12/6/2006   Senate   Referred to Committee on Judiciary
  1/9/2007   Senate   Introduced and read first time SJ-81
  1/9/2007   Senate   Referred to Committee on Judiciary SJ-81

View the latest legislative information at the LPITS web site


VERSIONS OF THIS BILL

12/6/2006
 1
 2
 3
 4
 5
 6
 7
 8
 9                       A BILL
10
11   TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
12   1976, SO AS TO REFORM CERTAIN EMINENT DOMAIN
13   PROCEDURES BY ADDING SECTION 4-9-32 SO AS TO
14   PROVIDE FOR PROCEDURES REQUIRED OF A COUNTY
15   BEFORE IT MAY EXERCISE EMINENT DOMAIN; BY
16   ADDING CHAPTER 1 TO TITLE 28 SO AS TO ENACT THE
17   SOUTH CAROLINA PRIVATE PROPERTY RIGHTS
18   PROTECTION ACT PROVIDING REQUIREMENTS FOR THE
19   EXERCISE OF EMINENT DOMAIN INCLUDING THAT THE
20   CONDEMNED PROPERTY BE TAKEN FOR A PUBLIC USE,
21   THAT PUBLIC AND PERSONAL NOTICES MUST BE
22   OFFERED, THAT THERE ARE EXCEPTIONS IN CERTAIN
23   EXPRESS INSTANCES, THAT THE PROPERTY MAY BE
24   REACQUIRED BY THE CONDEMNEE IN CERTAIN
25   INSTANCES AT GIVEN PRICES, AND THAT THE
26   CONDEMNEE HAS THE RIGHT OF FIRST REFUSAL TO
27   REPURCHASE THE PROPERTY IN CERTAIN INSTANCES;
28   BY ADDING SECTION 28-2-35 SO AS TO SET FORTH
29   PREREQUISITES TO THE EXERCISE OF EMINENT
30   DOMAIN; BY ADDING SECTION 28-3-25 SO AS TO
31   REQUIRE WRITTEN APPROVAL BEFORE CERTAIN
32   PUBLIC BODIES MAY EXERCISE EMINENT DOMAIN; TO
33   AMEND SECTION 4-9-30, RELATING TO A COUNTY‟S
34   AUTHORITY TO EXERCISE EMINENT DOMAIN, SO AS TO
35   PROVIDE FOR THE EXERCISE OF EMINENT DOMAIN FOR
36   SLUM CLEARANCE AND REDEVELOPMENT OF A
37   BLIGHTED AREA BY A COUNTY; TO AMEND SECTION
38   5-7-50, RELATING TO A MUNICIPALITY‟S AUTHORITY TO
39   EXERCISE EMINENT DOMAIN, SO AS TO PROVIDE FOR
40   THE EXERCISE OF EMINENT DOMAIN FOR SLUM
41   CLEARANCE AND REDEVELOPMENT OF A BLIGHTED
42   AREA AND TO PROVIDE REQUIRED PROCEDURES

     [130]                   1
 1   BEFORE THE EXERCISE; TO AMEND SECTION 6-33-30,
 2   RELATING TO TIF FOR MUNICIPALITIES, SO AS TO
 3   REDEFINE “AGRICULTURAL REAL PROPERTY” AND
 4   “BLIGHTED”; TO AMEND SECTION 28-2-20, RELATING TO
 5   THE INTENT OF THE GENERAL ASSEMBLY IN
 6   CONNECTION WITH THE EMINENT DOMAIN PROCEDURE
 7   ACT, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND
 8   SECTION 28-2-30, RELATING TO DEFINITIONS FOR
 9   PURPOSES OF EXERCISING EMINENT DOMAIN, SO AS TO
10   DEFINE “BLIGHTED” AND “PUBLIC USE”; TO AMEND
11   SECTIONS 28-2-60 AND 28-2-210, BOTH RELATING TO THE
12   INSTITUTION OF A CONDEMNATION ACTION, BOTH SO
13   AS TO MAKE TECHNICAL CHANGES; TO AMEND
14   SECTION 28-2-510, RELATING TO LITIGATION IN
15   CONNECTION WITH A CHALLENGE TO THE EXERCISE OF
16   EMINENT DOMAIN, SO AS TO PROVIDE THAT THE
17   LANDOWNER IS ENTITLED TO AN ATTORNEY AND
18   COSTS AND ATTORNEY‟S FEES; TO AMEND SECTIONS
19   28-3-20 AND 28-3-30, BOTH RELATING TO STATE
20   AUTHORITIES WITH EMINENT DOMAIN POWER, SO AS
21   TO SPECIFY PUBLIC ENTITIES OTHER THAN COUNTIES
22   AND MUNICIPALITIES WHICH MAY EXERCISE THAT
23   POWER WITHOUT APPROVAL OF THE STATE BUDGET
24   AND CONTROL BOARD; TO AMEND SECTION 28-11-30,
25   RELATING TO REIMBURSEMENT TO PROPERTY OWNERS
26   FOR CERTAIN EXPENSES, SO AS TO PROVIDE FOR
27   REESTABLISHMENT EXPENSES UP TO FIFTY THOUSAND
28   DOLLARS; TO AMEND SECTION 31-6-30, AS AMENDED,
29   RELATING TO TIF FOR REDEVELOPMENT PROJECTS, SO
30   AS TO REDEFINE “AGRICULTURAL REAL PROPERTY”
31   AND “BLIGHTED” AREAS; AND TO AMEND SECTION
32   31-7-30, AS AMENDED, RELATING TO TIF FOR COUNTIES,
33   SO AS TO REDEFINE “AGRICULTURAL REAL PROPERTY”
34   AND “BLIGHTED”.
35
36   Be it enacted by the General Assembly of the State of South
37   Carolina:
38
39   SECTION 1. Article 1, Chapter 9, Title 4 of the 1976 Code is
40   amended by adding:
41
42     “Section 4-9-32. (A) Before exercising the powers granted in
43   Section 4-9-30(15), a county governing body shall:

     [130]                         2
 1         (1) perform a cost-benefit analysis and produce a written
 2   report based on the analysis which, at a minimum, must:
 3           (a) establish criteria for the objective to be accomplished
 4   as a result of the proposed taking;
 5           (b) include a fiscal impact statement that addresses
 6   whether the value of the proposed taking to the public is greater
 7   than the amount of just compensation owed to the property owner
 8   as a result of the proposed taking; and
 9           (c) identify alternatives to achieving the stated objective
10   other than through a taking of the property pursuant to the powers
11   of eminent domain;
12         (2) convene a meeting between the county official or
13   officials with the decision-making authority regarding the
14   proposed taking and the stakeholders in the proposed taking
15   including, but not limited to, any person or entity with current or
16   future property rights in the property at issue, to review and
17   discuss the proposed taking and to review and discuss the
18   cost-benefit analysis report prepared pursuant to item (1) of this
19   subsection;
20         (3) produce a final written report that is subject to disclosure
21   to the public pursuant to Chapter 4 of Title 30, the Freedom of
22   Information Act, and that confirms compliance with items (1) and
23   (2) of this subsection.
24      (B) Unless the cost-benefit analysis report pursuant to item (1)
25   of subsection (A) concludes that the value of the proposed taking
26   to the public is greater than the amount of just compensation owed
27   to the property owner as a result of the proposed taking, the county
28   may not exercise the authority granted in Section 4-9-30(15).”
29
30   SECTION 2. Title 28 of the 1976 Code is amended by adding:
31
32                              “CHAPTER 1
33                    Private Property Rights Protection
34
35     Section 28-1-10. This chapter may be cited as „The South
36   Carolina Private Property Rights Protection Act‟.
37
38     Section 28-1-20. As used in this title:
39     (1) „Condemnation date‟ means either the date the
40   condemnation action is filed or the date the document transferring
41   ownership is recorded, whichever occurs first.



     [130]                             3
 1      (2) „Condemnor‟ means a person or other entity empowered by
 2   the General Assembly or federal government to condemn property
 3   by eminent domain.
 4      (3) „Date of taking‟ means the date when the condemnor files
 5   formal notice with the clerk of court.
 6      (4) „Assignee‟ means a person or entity that has been assigned,
 7   gifted, granted, bequested, or devised a right of first refusal.
 8      (5) „Public use‟ means the standard in the Constitution of
 9   South Carolina, 1895, by which private property may be
10   condemned by eminent domain.
11
12      Section 28-1-30. Notwithstanding another provision of law to
13   the contrary, a condemnor‟s acquisition of property by eminent
14   domain must comply with the following requirements:
15      (1)(a) Except as provided in the Constitution of South Carolina,
16   1895, private property must not be taken for private use without
17   the consent of the owner, nor for public use without just
18   compensation being first made for the property. Private property
19   must not be condemned by eminent domain for a purpose or
20   benefit including, but not limited to, the purpose or benefit of
21   economic development, unless the condemnation is for public use.
22        (b) For the limited purpose of the remedy of blight, the
23   General Assembly may provide by law that private property
24   constituting a danger to the safety, health of the community by
25   reason of lack of ventilation, light, sanitation, or dilapidation,
26   deleterious land use, or any combination of these factors may be
27   condemned by eminent domain without the consent of the owner
28   and put to a public use or private use if just compensation is first
29   made for the property.
30      (2) Only a condemnor may exercise the power of eminent
31   domain in this State, and a condemnor may not delegate his
32   authority to a person or other entity that has not been empowered
33   by the General Assembly or federal government to condemn
34   private property by eminent domain.
35      (3) The condemnor must:
36        (a) provide written notice to the condemnee in substantially
37   the following form: THIS IS AN EMINENT DOMAIN
38   CONDEMNATION AND IS A LEGAL PROCESS THAT
39   INVOLVES VALUATION OF PROPERTY DESCRIBED
40   HEREIN. YOU MAY NEED TO CONSULT AN ATTORNEY
41   AND/OR A REAL ESTATE PROFESSIONAL IN ORDER TO
42   PROTECT YOUR LEGAL RIGHTS;


     [130]                            4
 1      (b) file the notice with the formal condemnation notice with the
 2   clerk of court; and
 3      (c) maintain a publicly available document that states the
 4   public use for property that has been condemned.
 5
 6      Section 28-1-40. (A) This section does not apply:
 7         (1) if its provisions are otherwise contrary to the
 8   constitutions of the State of South Carolina or the United States of
 9   America or federal law;
10         (2) when condemned property is sold, leased, exchanged,
11   transferred, or otherwise conveyed by one condemnor to another
12   condemnor who may exercise eminent domain authority for the
13   same or similar public use;
14         (3) to an uneconomic remainder acquired pursuant to
15   Section 28-2-100;
16         (4) to the lease of property by the condemnor for additional
17   uses not in conflict with a planned or ongoing public use of the
18   property;
19         (5) if the condemnee expressly waives in the conveyance
20   document a right to reacquire or right of first refusal; or
21         (6) if a condemnee, his agent, or his assignee fails to appear
22   and claim a right to reacquire or right of first refusal in the
23   condemnation proceedings.
24      (B) If a fee simple interest in property is condemned after the
25   effective date of this section, a condemnor must inform a
26   condemnee that he may choose to exercise, assign, or waive:
27         (1) a right to reacquire the condemned property if the
28   condemned property is not used for the public use for which it was
29   condemned within ten years after the condemnation date as
30   provided in subsection (C)(1) and (2); or
31         (2) a right of first refusal to repurchase the condemned
32   property if the condemned property is sold fewer than twenty years
33   after the condemnation date as provided in subsection (C)(3).
34      (C) Except as provided in subsection (A) or unless a failure to
35   receive the current appraised value would result in a loss of federal
36   funding for a project:
37         (1) A condemnee, his agent, or an assignee has the right to
38   reacquire the subject real property upon payment of the amount of
39   the original condemnation award or its current appraised value,
40   whichever is less, if the real property, or a portion of it, condemned
41   pursuant to the procedure prescribed in Chapter 2, is not used for
42   the public use for which it was condemned within ten years after
43   the condemnation date.

     [130]                             5
 1            (a) The ten-year period required by this item must be
 2   tolled for the period of time during which condemnation is
 3   contested or the declared use is delayed for regulatory, permitting,
 4   litigation, or other legal proceedings.
 5            (b) Subsection (C)(1) does not apply to property acquired
 6   for a future transportation corridor or a public seaport.
 7         (2) Except as otherwise provided by law as to blighted areas,
 8   the condemnor of real property pursuant to Chapter 2 may not sell,
 9   lease, exchange, transfer, or otherwise convey the condemned
10   property or a portion of it to a private or public person or entity
11   unless the condemnee, his agent, or an assignee has the right to
12   reacquire the subject property as provided in this section upon
13   payment of the amount of the original condemnation award or its
14   current appraised value, whichever is less.
15         (3) If the condemned property is sold by the condemnor
16   fewer than twenty years after the condemnation date, the
17   condemnor must offer the condemnee the right of first refusal to
18   purchase the condemned property as follows:
19            (a) if the sale occurs more than ten years and up to twelve
20   years after the condemnation date, the purchase price is no more
21   than fifty percent of the fair market value of the property or the
22   condemnation price, whichever is greater;
23            (b) if the sale occurs more than twelve years and up to
24   fourteen years after the condemnation date, the purchase price is
25   no more than sixty percent of the fair market value of the property
26   or the condemnation price, whichever is greater;
27            (c) If the sale occurs more than fourteen years and up to
28   sixteen years after the condemnation date, the purchase price is no
29   more than seventy percent of the fair market value of the property
30   or the condemnation price, whichever is greater;
31            (d) if the sale occurs more than sixteen years and up to
32   eighteen years after the condemnation date, the purchase price is
33   no more than eighty percent of the fair market value of the
34   property or the condemnation price, whichever is greater; or
35            (e) if the sale occurs more than eighteen years but fewer
36   athan twenty years after the condemnation date, the purchase price
37   is no more than ninety percent of the fair market value of the
38   property.
39         (4) If the condemned property is sold by the condemneor
40   twenty years or more after the condemnation date, the purchase
41   price is no more than one hundred percent of the fair market value
42   of the property.


     [130]                            6
 1      (D) The conveyance document transferring the condemned
 2   property from the condemnee to the condemnor must explicitly
 3   state if the condemnee waives the right to reacquire or right of first
 4   refusal at the time the property is condemned and that the right
 5   does not exist.
 6      (E) If the condemnee does not waive the right to reacquire or
 7   right of first refusal at the time the property is condemned, the
 8   conveyance document transferring the property from the
 9   condemnee to the condemnor must contain provisions that:
10         (1) grant the condemnee the right to reacquire or right of
11   first refusal if the condemned property is sold by the condemnor
12   fewer than twenty years after the condemnation date;
13         (2) provide that the right to reacquire or right of first refusal
14   is transferable by way of gift, bequest, or devise to an assignee
15   only if:
16            (a) the condemnee files with the clerk of court or register
17   of deeds in the county where the property is located a notice of the
18   gift, bequest, or devise as provided in subsection (F); and
19            (b) the gift, bequest, or devise vests as provided by the
20   law of this State; and
21         (3) provide for service of notice to the condemnee, his agent,
22   or an assignee to whom the right to reacquire or right of first
23   refusal is transferred if the property is sold pursuant to the
24   requirements of subsection (G).
25      (F) The condemnee, his agent, or an assignee to whom the right
26   to reacquire or right of first refusal has been transferred:
27         (1) shall file with the clerk of court or register of deeds and
28   with the condemnor a permanent address for service of notice if
29   the property is sold;
30         (2) shall file with the clerk of court or register of deeds and
31   with the condemnor notice of any change in the permanent address
32   for service of notice;
33         (3) is considered conclusively to have waived the right to
34   reacquire or right of first refusal if a permanent address or change
35   of permanent address for service of notice is not provided to the
36   condemnor; and
37         (4) is considered conclusively to have waived a right to
38   reacquire or right of first refusal if he fails to appear and claim a
39   right to reacquire or right of first refusal in the condemnation
40   proceedings.
41      (G)(1) If the condemnor provides notice by certified letter to the
42   permanent address for service of notice to the condemnee, his
43   agent, or an assignee to whom the right of first refusal has been

     [130]                              7
 1   transferred of the intent to sell the condemned property and the
 2   condemnor receives no reply within sixty days of the postmarked
 3   date, the right of first refusal is considered waived and the
 4   condemnor may sell the property as provided by law. If the
 5   condemnor receives a written reply, the condemnor shall file the
 6   reply with the clerk of court or register of deeds.
 7         (2) The right to reacquire or right of first refusal expires if
 8   the condemnee, his agent, or an assignee fails to pay the amount
 9   required by subsection (C) and stated in the condemnor‟s letter
10   within one hundred and twenty days of the letter‟s postmarked
11   date.
12         (3) If a dispute occurs over the purchase price or fair market
13   value of the property, the right to reacquire or right of first refusal
14   expires if the condemnee fails to pay the amount:
15           (a) agreed upon by the parties pursuant to a written
16   agreement; or
17           (b) determined by a court to be the amount owed within
18   one hundred and twenty days of the date of the parties‟ written
19   agreement or the court decision is rendered.
20      (H) If the property interest condemned is an easement or other
21   property interest less than fee simple, an offer of first refusal to
22   acquire the condemned property that is no longer needed for a
23   public use must be made to the current owner of the parent tract.
24      (I) Before the sale, lease, or transfer of the property acquired
25   as an uneconomic remainder, the condemnor must notify owners
26   of land contiguous to the uneconomic remainder and offer an
27   opportunity to bid to purchase or lease the property.
28      (J) If a property is transferred from one condemnor to another
29   condemnor as provided in subsection (A)(2), the subsequent
30   condemnor must comply with the original condemnor‟s obligations
31   under this section.”
32
33   SECTION 3. Chapter 2 of Title 28 of the 1976 Code is amended
34   by adding:
35
36      “Section 28-2-35. Notwithstanding another provision of law to
37   the contrary, a public body‟s acquisition of private property
38   through the exercise of eminent domain or condemnation must
39   comply with the following requirements:
40      (A) In any action challenging a public body‟s right to acquire
41   private property pursuant to Section 28-2-470, a public body has
42   the burden of proving, by clear and convincing evidence, each of
43   the following:

     [130]                              8
 1        (1) a proposed condemnation is for a public use that is not
 2   merely incidental, indirect, pretextual, or speculative; and
 3        (2) the entity will own, operate, and retain control over the
 4   condemned property, except as may be permitted by Article I,
 5   Section 13 of the Constitution of the State of South Carolina, 1895.
 6     (B) The provisions of this section do not apply to:
 7        (1) entities granted condemnation powers pursuant to Title
 8   33 or Title 58; or
 9        (2) determinations pursuant to the provisions of this chapter
10   concerning the value of just compensation.”
11
12   SECTION 4. Chapter 3 of Title 28 of the 1976 Code is amended
13   by adding:
14
15      “Section 28-3-25. (A)(1) A county of this State and any
16   agency or political subdivision of a county must apply to and
17   receive written approval from its county council before exercising
18   the power of eminent domain.
19        (2) This subsection does not apply to any school district in
20   this State.
21      (B) A municipality of this State and any agency or political
22   subdivision of a municipality must apply to and receive written
23   approval from its town or city council before exercising the power
24   of eminent domain.”
25
26   SECTION 5. Subsection (4), as editorially corrected in the 2005
27   Supplement to the 1976 Code, and subsection (15) of Section
28   4-9-30 of the 1976 Code are amended to read:
29
30      “(4) to exercise powers of eminent domain for county purposes
31   except where the land concerned is devoted to a public use;
32   provided, however, except that the property of corporations not for
33   profit organized under pursuant to the provisions of Chapter 35 of
34   Title 33 shall is not be subject to condemnation unless the county
35   in which their the corporation‟s service area is located intends to
36   make comparable water service available in such the service area
37   and such the condemnation is for that purpose. After any such the
38   condemnation, the county shall assume all obligations of the
39   corporation related to the property and the facilities thereon on it
40   which were condemned;
41
42     (15) to undertake and carry out slum clearance and
43   redevelopment work in areas which that are predominantly slum or

     [130]                            9
 1   blighted, the preparation of such those areas for reuse, and the sale
 2   or other disposition of such those areas to private enterprise for
 3   private uses or to public bodies for public uses and, to that end, the
 4   General Assembly delegates to any a county the right to exercise
 5   the power of eminent domain as to any property essential to the
 6   plan of slum clearance and redevelopment. Any A county may
 7   acquire air rights or subsurface rights, both as hereinafter defined,
 8   by any means permitted by law for acquisition or of real estate,
 9   including eminent domain, and may dispose of air rights and
10   subsurface rights, regardless of how for whom or for what purpose
11   acquired, for private use or public use by lease, mortgage, sale, or
12   otherwise. „Air rights‟ shall mean means estates, rights, and
13   interests in the space above the surface of the ground or the surface
14   of streets, roads, or rights-of-way including access, support, and
15   other appurtenant rights required for the utilization thereof of
16   them. „Subsurface rights‟ means estates, rights, and interests in the
17   space below the surface of the ground or the surface of streets,
18   roads, or rights-of-way including access, support, and other
19   appurtenant rights required for the utilization of them;”
20
21   SECTION 6. Section 5-7-50 of the 1976 Code is amended to
22   read:
23
24      “Section 5-7-50. Any (A)(1) A municipality desiring to become
25   the owner of any land or to acquire any easement or right-of-way
26   therein in it for any an authorized corporate or public purpose shall
27   have the right to use may condemn such the land or right-of-way
28   or easement, subject to the general law of this State, within and
29   without the corporate limits in the county in which it is situated
30   and in any adjoining county or counties. This authority shall does
31   not apply to any property devoted to public use; provided,
32   however, except that, the property of corporations not for profit
33   organized under pursuant to the provisions of Chapter 35 of Title
34   33, shall is not be subject to condemnation unless the municipality
35   in which their the corporation‟s service area is located intends to
36   make comparable water service available in such the service area
37   and such the condemnation is for that purpose. After any such the
38   condemnation, the municipality shall assume all obligations of the
39   corporation related to the property and the facilities thereon on it
40   which were condemned.
41        (2) Provided, however, In accordance with and subject to the
42   requirements and conditions of subsections (B) and (C) of this
43   section, that any an incorporated municipality, or any a housing or

     [130]                             10
 1   redevelopment authority now existing or hereafter established to
 2   function, later may undertake and carry out slum clearance and
 3   redevelopment work in areas which that are predominately slum or
 4   blighted, the preparation of such the areas for reuse, and the sale or
 5   other disposition of such the areas to private enterprise or to public
 6   bodies for public uses and, to that end, the General Assembly
 7   delegates to any an incorporated municipality, or such like
 8   authorities, the right to exercise the power of eminent domain as to
 9   any property essential to the plan of slum clearance and
10   redevelopment. Any incorporated municipality, political
11   subdivision, or authority may acquire air rights or subsurface
12   rights, both as hereinafter defined, by any means permitted by law
13   for acquisition of real estate, including eminent domain, and may
14   dispose of air rights and subsurface rights, regardless of who for
15   whom or for what purpose acquired, for private use or public use
16   by lease, mortgage, sale, or otherwise. „Air rights‟ shall mean
17   means estates, rights, and interests in the space above the surface
18   of the ground or the surface of streets, roads, or rights-of-ways
19   rights-of-way including access, support, and other appurtenant
20   rights required for the utilization thereof of them. „Subsurface
21   rights‟ shall mean means estates, rights, and interests in the space
22   below the surface of the ground or the surface of streets, roads, or
23   rights-of-way including access, support, and other appurtenant
24   rights required for the utilization thereof of them.
25      (B) Before exercising the powers granted in item (2) of
26   subsection (A), the municipality, political subdivision, or authority
27   shall:
28         (1) perform a cost-benefit analysis and produce a written
29   report based on the analysis which, at a minimum, must:
30           (a) establish criteria for the objective to be accomplished
31   as a result of the proposed taking;
32           (b) include a fiscal impact statement that addresses
33   whether the value of the proposed taking to the public is greater
34   than the amount of just compensation owed to the property owner
35   as a result of the proposed taking; and
36           (c) identify alternatives to achieving the stated objective
37   other than through a taking of the property pursuant to the powers
38   of eminent domain;
39         (2) convene a meeting between the governmental official or
40   officials with the decision-making authority regarding the
41   proposed taking and the stakeholders in the proposed taking
42   including, but not limited to, person or entity with current or future
43   property rights in the property at issue, to review and discuss the

     [130]                             11
 1   proposed taking and to review and discuss the cost-benefit analysis
 2   report prepared pursuant to item (1) of this subsection;
 3        (3) produce a final written report that is subject to disclosure
 4   to the public pursuant to Chapter 4 of Title 30, the Freedom of
 5   Information Act, and that confirms compliance with items (1) and
 6   (2) of this subsection.
 7     (C) Unless the cost-benefit analysis report pursuant to this
 8   section concludes that the value of the proposed taking to the
 9   public is greater than the amount of just compensation owed to the
10   property owner as a result of the proposed taking, the municipality,
11   political subdivision, or authority may not exercise the authority
12   granted in item (2) of subsection (A).”
13
14   SECTION 7. Section 6-33-30(1) of the 1976 Code, is amended to
15   read:
16
17      “(1) „Blighted area‟ means any improved or vacant area within
18   the boundaries of a redevelopment project area located within the
19   territorial limits of a county where:
20         (a) if improved, industrial, commercial, and residential
21   buildings or improvements, because of a combination of five or
22   more of the following factors: age; dilapidation; obsolescence;
23   deterioration; illegal use of individual structures; presence of
24   structures below minimum code standards; excessive vacancies;
25   overcrowding of structures and community facilities; lack of
26   ventilation, light, or sanitary facilities; inadequate utilities;
27   excessive land coverage; deleterious land use or layout;
28   depreciation of physical maintenance; lack of community
29   planning, are detrimental to the public safety, health, morals, or
30   welfare; or
31         (b) if vacant, the sound growth is impaired by:
32            (i)a combination of two or more of the following factors:
33   obsolete platting of the vacant land; diversity of ownership of such
34   land; tax and special assessment delinquencies on such land;
35   deterioration of structures or site improvements in neighboring
36   areas adjacent to the vacant land; or
37            (ii) the area immediately prior to becoming vacant
38   qualified as a blighted area. Any area within a redevelopment plan
39   established by Chapter 10 of Title 31 is deemed to be a blighted
40   area. „Agricultural real property‟ has the same definition as in
41   Section 12-43-230.
42      (1A) „Blighted‟ means an area or property in which there is a
43   predominance of buildings or improvements, or which is

     [130]                            12
 1   predominantly residential in character, and which, by reason of: (i)
 2   dilapidation, deterioration, age, or obsolescence; (ii) inadequate
 3   provision for ventilation, light, air, sanitation, or open spaces; (iii)
 4   high density of population and overcrowding; (iv) unsanitary or
 5   unsafe conditions; (v) the existence of conditions that endanger life
 6   or property by fire and other causes; or (vi) any combination of
 7   these factors:
 8        (a) substantially impairs the sound growth of the
 9   community;
10        (b) is conducive to ill health, transmission of disease, infant
11   mortality, juvenile delinquency, and crime; and
12        (c) is detrimental to the public health, safety, morals, or
13   welfare.
14      An area is not a blighted area or subject to the power of eminent
15   domain, within the meaning of this chapter, unless the local
16   governing body determines that at least two-thirds of the number
17   of buildings within the area are of the character described in this
18   item and substantially contribute to the conditions making the area
19   a blighted area. If the power of eminent domain is exercised
20   pursuant to this chapter, the property owner or a person having an
21   interest in the property may be represented by counsel of his own
22   selection and his reasonable attorney‟s fees fixed by the court,
23   taxed as a part of the costs, and paid by the petitioners pursuant to
24   Section 28-2-510.”
25
26   SECTION 8. Section 28-2-20 of the 1976 Code is amended to
27   read:
28
29      “Section 28-2-20. (A) This act amends chapter establishes the
30   law of this State relating to procedures for acquisitions of property
31   and to the exercise of the power of eminent domain.
32      (B) It is the intention of the General Assembly that this act is
33   designed to chapter create a uniform procedure for all exercise of
34   eminent domain power in this State.
35      (C) It is not intended by the creation of The General Assembly
36   does not intend through this act chapter to alter the substantive law
37   of condemnation, and any uncertainty as to construction which
38   might arise arises must be resolved in a manner consistent with this
39   declaration.
40      (D) In the event of conflict between If this act and any chapter
41   conflicts with other law with respect to any a subject governed by
42   this act chapter, this act shall chapter must prevail.”
43

     [130]                             13
 1   SECTION 9. Section 28-2-30 of the 1976 Code is amended to
 2   read:
 3
 4      “Section 28-2-30. As used in this act chapter:
 5      (1) „Action‟ means condemnation action.
 6      (2) „Appraisal‟ means an opinion as to the value of
 7   compensation payable for property, prepared by or under the
 8   direction of an individual qualified by knowledge, skill,
 9   experience, training, or education to express an opinion as to the
10   value of the compensation. An appraisal includes the assessment of
11   general and specific benefits to the owner as offsets against any
12   damages to the property.
13      (2A) „Blighted‟ means an area or property in which there is a
14   predominance of buildings or improvements, or which is
15   predominantly residential in character, and which, by reason of: (i)
16   dilapidation, deterioration, age, or obsolescence; (ii) inadequate
17   provision for ventilation, light, air, sanitation, or open spaces; (iii)
18   high density of population and overcrowding; (iv) unsanitary or
19   unsafe conditions; (v) the existence of conditions that endanger life
20   or property by fire and other causes; or (vi) any combination of
21   these factors:
22        (a) substantially impairs the sound growth of the
23   community;
24        (b) is conducive to ill health, transmission of disease, infant
25   mortality, juvenile delinquency, and crime; and
26        (c) is detrimental to the public health, safety, morals, or
27   welfare.
28      An area is not a blighted area or subject to the power of eminent
29   domain, within the meaning of this chapter, unless the local
30   governing body determines that at least two-thirds of the number
31   of buildings within the area are of the character described in this
32   item and substantially contribute to the conditions making the area
33   a blighted area. If the power of eminent domain is exercised
34   pursuant to this chapter, the property owner or a person having an
35   interest in the property may be represented by counsel of his own
36   selection and his reasonable attorney‟s fees fixed by the court,
37   taxed as a part of the costs, and paid by the petitioners pursuant to
38   Section 28-2-510.
39      (3) „Clerk of court‟ or „clerk‟ means the clerk of court of
40   common pleas of the county in which the real property sought for
41   acquisition by a condemnor, or the major portion of the property, is
42   located.


     [130]                              14
 1      (4) „Condemn‟ means to take property under pursuant to the
 2   power of eminent domain.
 3      (5) „Condemnation action‟ includes all acts incident to the
 4   process of condemning property after the service of a
 5   Condemnation Notice.
 6      (6) „Condemnee‟ means a person or other entity who has a
 7   record interest in or holds actual possession of property that is the
 8   subject of a condemnation action.
 9      (7) „Condemnor‟ means a person or other entity empowered by
10   the General Assembly or federal government to condemn private
11   property by eminent domain.
12      (8) „Court‟ means a circuit court of this State and includes,
13   when the context requires, any judge of the court.
14      (9) „Crops‟ means any a form of vegetation intended to be
15   removed and used or sold for commercial purposes, including,
16   without limitation, grass, flowers, fruits, vegetables, trees, vines,
17   and nursery stock.
18      (10) „Federal agency‟ means the United States or any an agency
19   or instrumentality, corporate, or otherwise, of the United States.
20      (11) „Improvement‟ includes any a building or structure, and
21   any facility, machinery, or equipment that cannot be is incapable
22   of being removed from the real property on which it is situated
23   without substantial damage to the real property or other substantial
24   economic loss.
25      (12) „Landowner‟ means one or more condemnees having a
26   record fee simple interest in the property condemned or any part
27   thereof of it, as distinguished from condemnees who possess a lien
28   or other nonownership interest in the property; where. If there are
29   more than one condemnee, the term means the condemnees
30   collectively, unless expressly provided otherwise.
31      (13) „Lien‟ means a security interest in property arising from
32   contract, mortgage, deed of trust, statute, common law, equity, or
33   creditor action.
34      (14) „Litigation expenses‟ means the reasonable fees, charges,
35   disbursements, and expenses necessarily incurred from and after
36   service of the Condemnation Notice, including, but not limited to,
37   reasonable attorney‟s fees, appraisal fees, engineering fees,
38   deposition costs, and other expert witness fees necessary for
39   preparation or participation in condemnation actions and the actual
40   cost of transporting the court and jury to view the premises.
41      (15) „Local public entity‟ means a public entity other than the
42   State.


     [130]                            15
 1      (16) „Person‟ includes a natural individual, partnership,
 2   corporation, association, other legal or fiduciary entity, and a
 3   public entity.
 4      (17) „Property‟, „real property‟, or „land‟ means all lands,
 5   including improvements and fixtures thereon on them, lands under
 6   water, corporeal or incorporeal easements and hereditaments,
 7   corporeal or incorporeal, every legal or equitable estate, interest,
 8   and right, legal or equitable, in lands or water, and all rights,
 9   interests, privileges, easements, encumbrances, and franchises
10   relating thereto, to them including terms for years and liens by way
11   of judgment, mortgage, or otherwise.
12      (18) „Public body‟ means this State or any county, city, town,
13   municipal corporation, municipality, authority, or other
14   subdivision, agency or body or instrumentality, corporate or
15   otherwise, authorized by law to exercise the power of eminent
16   domain.
17      (19) „Public use‟ means the standard in the Constitution of the
18   State of South Carolina, 1895, by which private property may be
19   condemned by eminent domain.
20      (20) „Public works project‟ means any work or undertaking
21   which that is financed in whole or in part by a federal agency or a
22   public body, or is administered or supervised or regulated by a
23   federal agency or a public body.”
24
25   SECTION 10. Section 28-2-60 of the 1976 Code is amended to
26   read:
27
28      “Section 28-2-60. A condemnor may commence an action
29   under pursuant to this chapter for the acquisition of an interest in
30   any real property necessary for any a public purpose use. The
31   provisions of this chapter shall constitute title are the exclusive
32   procedure whereby by which condemnation may be undertaken in
33   this State.”
34
35   SECTION 11. Section 28-2-210 of the 1976 Code is amended to
36   read:
37
38     “Section 28-2-210. Any A condemnor may institute an action
39   under pursuant to this chapter for the acquisition of an interest in
40   any real property necessary for any a public purpose use. The
41   provisions of this act title constitute the exclusive procedure
42   whereby by which condemnation may be undertaken in this State.”
43

     [130]                            16
 1   SECTION 12. Section 28-2-510 of the 1976 Code is amended
 2   by adding at the end:
 3
 4      “(D) If the power of eminent domain is exercised pursuant to
 5   this chapter to acquire blighted property as defined in Section
 6   28-2-30(2A), the property owner or a person having an interest in
 7   the property may be represented by counsel of his own selection
 8   and, if he prevails, is entitled to recover his reasonable costs,
 9   disbursements, and expenses, including reasonable attorney,
10   appraisal, and engineering fees, actually incurred because of the
11   proceeding.”
12
13   SECTION 13. Section 28-3-20 of the 1976 Code is amended to
14   read:
15
16      “Section 28-3-20. All state authorities, commissions, boards, or
17   governing bodies established by the State of South Carolina,
18   (hereinafter referred to as "state authority") which have been, or
19   may be created in the future, to develop waterways of the State for
20   use in intrastate, interstate, and foreign commerce; to construct,
21   maintain, and operate powerhouses, dams, canals, locks, and
22   reservoirs; to produce, transmit, sell, and distribute electric power;
23   to reclaim and drain swampy and flooded lands; to improve health
24   conditions of the State; and to reforest watersheds, and for which
25   purposes the acquisition of property is necessary, have the right of
26   eminent domain.
27      (A) The only state agencies that may exercise directly the right
28   of eminent domain without approval of the State Budget and
29   Control Board are:
30        (1) the South Carolina Department of Transportation;
31        (2) the South Carolina Public Service Authority;
32        (3) the South Carolina State Ports Authority;
33        (4) the Department of Commerce; and
34        (5) any school district.
35      (B) Notwithstanding another provision of law, this provision is
36   intended to be the exclusive procedure governing which state
37   agencies may exercise the right of eminent domain without
38   approval of the State Budget and Control Board.”
39
40   SECTION 14. Section 28-3-30 of the 1976 Code is amended to
41   read:
42


     [130]                             17
 1      “Section 28-3-30. (A) This section applies when the power of
 2   eminent domain is exercised only:
 3         (1) to develop waterways of the State for use in intrastate,
 4   interstate, and foreign commerce; to construct, maintain, and
 5   operate powerhouses, dams, canals, locks, and reservoirs; to
 6   produce, transmit, sell, and distribute electric power; to reclaim
 7   and drain swampy and flooded lands; to improve health conditions
 8   of the State; and to reforest watersheds; and
 9         (2) for which purposes the acquisition of property is
10   necessary.
11      (B) Any A public body exercising the power of eminent
12   domain for purposes set forth in Section 28-3-20 shall, in
13   subsection (A), in the area determined by the maximum high-water
14   mark resulting from its activity and a line not exceeding one
15   hundred lineal feet beyond such that high-water mark, shall
16   arrange to permit the previous owner of the one hundred foot strip,
17   and his heirs and assigns, to pass over and across the strip which
18   may be that is acquired under pursuant to this section, and any and
19   all lands of the state authority which that are not actually covered
20   with water at convenient places for purposes of ingress and egress
21   to the reservoirs of the state authority, which. This right must be
22   exercised so that it shall does not interfere with any dams, dikes,
23   structures, and buildings of the state authority or the application
24   and use of the state authority of proper health and sanitation
25   measures, and the strip and all of the lands acquired by the
26   authority may be controlled by the authority for health and
27   sanitation measures to the extent of exclusion of the public from
28   the strip and lands at all times as may be necessary. The public
29   bodies may also also may acquire by condemnation all water and
30   flowage rights in land in the vicinity of the projects specified in
31   Section 28-3-20 subsection (A) which it may determine to be
32   determines necessary, useful, or convenient, or which might may
33   be damaged by reason of the construction or operation of the
34   projects, and on those lands the public bodies may establish
35   necessary health control measures as may be necessary.”
36
37   SECTION 15. Section 28-11-30 of the 1976 Code is amended to
38   read:
39
40     “Section 28-11-30. To the extent that Title III of the Uniform
41   Relocation Assistance and Real Property Acquisition Policies Act
42   of 1970 (Public Law 91-646) makes certain requirements
43   pertaining to the acquisition of real property by states prerequisites

     [130]                             18
 1   to federal aid to such those states in programs or projects involving
 2   the acquisition of real property for public uses, state agencies and
 3   instrumentalities and political subdivisions and local government
 4   agencies and instrumentalities involved in such those programs or
 5   projects are empowered to may expend available public funds as
 6   provided hereafter in this section, whether or not the program or
 7   project is federally aided.
 8      (1) Any person, agency or other entity A condemnor acquiring
 9   real property for public use in any a project or program shall, as
10   soon as practicable after the date of payment of the purchase price
11   or the date of deposit into court of funds to satisfy the award of
12   compensation in a condemnation proceeding to acquire real
13   property, whichever is the earlier, shall reimburse the owner, to the
14   extent the State deems fair and reasonable, for expenses he
15   necessarily incurred for: (ai) recording fees, transfer taxes, and
16   similar expenses incidental to conveying such real property to the
17   State; (bii) penalty costs for prepayment for preexisting recorded
18   mortgage entered into in good faith encumbering such the real
19   property; and (ciii) the pro rata portion of real property taxes paid
20   which are allocable to a period subsequent to after the date of
21   vesting title in the agency concerned, or the effective date of
22   possession of such the real property by such the agency, whichever
23   is the earlier.
24      (2) Where If a condemnation proceeding is instituted by the
25   agency to acquire real property for such that use and (i) the final
26   judgment is that the real property cannot be is incapable of being
27   acquired by condemnation or (ii) the proceeding is abandoned, the
28   owner of any right, title, or interest in such the real property shall
29   must be paid such a sum as will that, in the opinion of the agency,
30   reimburse such reimburses the owner for his reasonable attorney,
31   appraisal, and engineering fees actually incurred because of the
32   condemnation proceedings. The award of such condemnor must
33   pay those sums will be paid by the person, agency or other entity
34   which sought to condemn the property.
35      (3) Where If an inverse condemnation proceeding is instituted
36   by the owner of any right, title, or interest in real property because
37   of use of his property in any a program or project, the court,
38   rendering a judgment for the plaintiff in such the proceeding and
39   awarding compensation for the taking of property, or the attorney
40   effecting a settlement of any such the proceeding, shall determine
41   and award or allow to such the plaintiff, as a part of such the
42   judgment or settlement, such a sum as will that, in the opinion of
43   the court or the agency‟s attorney, reimburse such reimburses the

     [130]                             19
 1   plaintiff for his reasonable costs, disbursements, and expenses,
 2   including reasonable attorney, appraisal, and engineering fees,
 3   actually incurred because of such the proceeding.
 4     (4) Reestablishment expenses payable pursuant to federal
 5   guidelines and regulations to move a small business, farm, or
 6   nonprofit organization may be paid in an amount up to fifty
 7   thousand dollars or the maximum amount allowed by federal
 8   regulations, whichever is greater.”
 9
10   SECTION 16. Section 31-6-30(1) and (1.5), as last amended by
11   Act 109 of 2005, is further amended to read:
12
13      “(1) "Blighted area" means any improved or vacant area within
14   the boundaries of a redevelopment project area located within the
15   territorial limits of the municipality where:
16         (a) if improved, industrial, commercial, and residential
17   buildings or improvements, because of a combination of five or
18   more of the following factors: age; dilapidation; obsolescence;
19   deterioration; illegal use of individual structures; presence of
20   structures below minimum code standards; excessive vacancies;
21   overcrowding of structures and community facilities; lack of
22   necessary transportation infrastructure; presence of or potential
23   environmental hazards; lack of water or wastewater services;
24   inadequate electric, natural gas or other energy services; lack of
25   modern communications infrastructure; lack of ventilation, light,
26   sanitary or storm drainage facilities; inadequate utilities; excessive
27   land coverage; deleterious land use or layout; depreciation of
28   physical maintenance; lack of community planning; and static or
29   declining land values are detrimental to the public safety, health,
30   morals, or welfare or;
31      (b) if vacant, the sound growth is impaired by:
32            (i)a combination of two or more of the following factors:
33   obsolete platting of the vacant land; diversity of ownership of such
34   land; tax and special assessment delinquencies on such land;
35   deterioration of structures or site improvements in neighboring
36   areas adjacent to the vacant land; overcrowding of structures and
37   community facilities in neighboring areas adjacent to the vacant
38   land; lack of necessary transportation infrastructure; presence of or
39   potential environmental hazard; lack of water, or wastewater; lack
40   of storm drainage facilities; inadequate electric and natural gas
41   energy services; and lack of modern communications
42   infrastructure; or


     [130]                             20
 1            (ii) the area immediately prior to becoming vacant
 2   qualified as a blighted area. Any area within a redevelopment plan
 3   established by Chapter 10 of Title 31 is deemed to be a blighted
 4   area. „Blighted‟ means an area or property in which there is a
 5   predominance of buildings or improvements, or which is
 6   predominantly residential in character, and which, by reason of: (i)
 7   dilapidation, deterioration, age, or obsolescence; (ii) inadequate
 8   provision for ventilation, light, air, sanitation, or open spaces; (iii)
 9   high density of population and overcrowding; (iv) unsanitary or
10   unsafe conditions; (v) the existence of conditions that endanger life
11   or property by fire and other causes; or (vi) any combination of
12   these factors:
13         (a) substantially impairs the sound growth of the
14   community;
15         (b) is conducive to ill health, transmission of disease, infant
16   mortality, juvenile delinquency, and crime; and
17         (c) is detrimental to the public health, safety, morals, or
18   welfare.
19      An area is not a blighted area or subject to the power of eminent
20   domain, within the meaning of this chapter, unless the local
21   governing body determines that at least two-thirds of the number
22   of buildings within the area are of the character described in this
23   item and substantially contribute to the conditions making the area
24   a blighted area. If the power of eminent domain is exercised
25   pursuant to this chapter, the property owner or a person having an
26   interest in the property may be represented by counsel of his own
27   selection and his reasonable attorney‟s fees fixed by the court,
28   taxed as a part of the costs, and paid by the petitioners pursuant to
29   Section 28-2-510.
30      (1.5) "Agricultural area" means any unimproved or vacant area
31   formerly developed and used primarily for agricultural purposes
32   within the boundaries of a redevelopment project area located
33   within the territorial limits of the municipality where
34   redevelopment and sound growth is impaired by a combination of
35   three or more of the following factors: obsolete platting of the
36   land; diversity of ownership of the land; tax and special assessment
37   delinquencies on the land; deterioration of structures or site
38   improvements in neighboring areas adjacent to the land;
39   overcrowding of structures and community facilities in
40   neighboring areas adjacent to the land; lack of necessary
41   transportation infrastructure; presence of or potential
42   environmental hazards; lack of water or wastewater; lack of storm
43   drainage facilities; inadequate electric, natural gas or other energy

     [130]                              21
 1   services; lack of modern communications infrastructure; lack of
 2   community planning; agricultural foreclosures; and static or
 3   declining land values. „Agricultural property‟ has the same
 4   definition as is provided in Section 12-43-230.”
 5
 6   SECTION 17. Section 31-7-30(1) of the 1976 Code was
 7   amended by Act 109 of 2005 and is further amended to read:
 8
 9      “(1) "Blighted area" means any improved or vacant area within
10   the boundaries of a redevelopment project area located within the
11   territorial limits of a county where: if improved, industrial,
12   commercial, and residential buildings or improvements, because of
13   a combination of five or more of the following factors: age;
14   dilapidation; obsolescence; deterioration; illegal use of individual
15   structures; presence of structures below minimum code standards;
16   excessive vacancies; overcrowding of structures and community
17   facilities; presence of or potential environmental hazard; lack of
18   ventilation, light, storm drainage, or sanitary facilities; inadequate
19   utilities; inadequate transportation infrastructure; excessive land
20   coverage; deleterious land use or layout; depreciation of physical
21   maintenance; lack of community planning, are detrimental to the
22   public safety, health, morals, or welfare; or „Agricultural real
23   property‟ has the same definition as is provided in Section
24   12-43-230.
25      (1A) „Blighted‟ means an area or property in which there is a
26   predominance of buildings or improvements, or which is
27   predominantly residential in character, and which, by reason of: (i)
28   dilapidation, deterioration, age, or obsolescence; (ii) inadequate
29   provision for ventilation, light, air, sanitation, or open spaces; (iii)
30   high density of population and overcrowding; (iv) unsanitary or
31   unsafe conditions; (v) the existence of conditions that endanger life
32   or property by fire and other causes; or (vi) any combination of
33   these factors:
34         (a) substantially impairs the sound growth of the
35   community;
36         (b) is conducive to ill health, transmission of disease, infant
37   mortality, juvenile delinquency, and crime; and
38         (c) is detrimental to the public health, safety, morals, or
39   welfare.
40      An area is not a blighted area or subject to the power of eminent
41   domain, within the meaning of this chapter, unless the local
42   governing body determines that at least two-thirds of the number
43   of buildings within the area are of the character described in this

     [130]                              22
 1   item and substantially contribute to the conditions making the area
 2   a blighted area. If the power of eminent domain is exercised
 3   pursuant to this chapter, the property owner or a person having an
 4   interest in the property may be represented by counsel of his own
 5   selection and his reasonable attorney‟s fees fixed by the court,
 6   taxed as a part of the costs, and paid by the petitioners pursuant to
 7   Section 28-2-510.”
 8
 9   SECTION 18. If any section, subsection, item, subitem,
10   paragraph, subparagraph, sentence, clause, phrase, or word of this
11   act is for any reason held to be unconstitutional or invalid, such
12   holding shall not affect the constitutionality or validity of the
13   remaining portions of this act, the General Assembly hereby
14   declaring that it would have passed this chapter, and each and
15   every section, subsection, item, subitem, paragraph, subparagraph,
16   sentence, clause, phrase, and word thereof, irrespective of the fact
17   that any one or more other sections, subsections, items, subitems,
18   paragraphs, subparagraphs, sentences, clauses, phrases, or words
19   hereof may be declared to be unconstitutional, invalid, or
20   otherwise ineffective.
21
22   SECTION 19. This act takes effect upon approval by the
23   Governor, and applies to an exercise of eminent domain pending
24   on that date or arising on or after that date, and to a legal action not
25   yet finally adjudicated by a trial court, except that the provisions of
26   Section 28-1-40, as contained in SECTION 2, take effect July 1,
27   2007, and apply to any exercise of eminent domain in this State
28   when the date of taking is on or after July 1, 2007.
29                                 ----XX----
30




     [130]                              23

				
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Description: Right of First Refusal Vacant Land Purchase document sample