First Regular Session Sixty-seventh General Assembly STATE OF COLORADO INTRODUCED LLS NO. 09-0425.01 Bob Lackner SENATE BILL 09-063 SENATE SPONSORSHIP Brophy, HOUSE SPONSORSHIP Gardner C., Senate Committees House Committees Transportation A BILL FOR AN ACT Concerning limitations on the exercise of the power of eminent domain by railroads. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Except in limited circumstances, prohibits a corporation formed for the purpose of constructing a railroad line, or for operating such a line, (railroad) from condemning real estate or rights-of-way. Prohibits a railroad from transferring ownership of property or rights-of-way acquired through the exercise of eminent domain to any other person or entity. Requires a railroad to comply to the extent practicable with all laws that govern the use of eminent domain by the department of transportation for state highway purposes. In connection with proceedings for the acquisition or condemnation of property by a railroad, in addition to any compensation awarded to the owner in an eminent domain proceeding, requires the railroad to reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees and court costs incurred by the owner in connection with such proceedings. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 38-2-101 (1), Colorado Revised Statutes, is amended to read: 38-2-101. Who may condemn real estate, rights-of-way, or other rights - additional requirements for private toll roads and toll highways. (1) Except as otherwise provided in this section, if any corporation formed for the purpose of constructing a road, ditch, reservoir, pipeline, bridge, ferry, tunnel, telegraph line, railroad line, electric line, electric plant, telephone line, or telephone plant is unable to agree with the owner for the purchase of any real estate or right-of-way or easement or other right necessary or required for the purpose of any such corporation for transacting its business or for any lawful purpose connected with the operations of the company, the corporation may acquire title to such real estate or right-of-way or easement or other right in the manner provided by law for the condemnation of real estate or right-of-way. Any ditch, reservoir, or pipeline company, in the same manner, may condemn and acquire the right to take and use any water not previously appropriated. Notwithstanding any other provision of this section, except as necessary to satisfy the requirements of section 38-2-104, a corporation formed for the purpose of constructing a railroad line, or for operating such a line, may not condemn real estate or rights-of-way. Notwithstanding any other provision of law, on or after the effective date of this subsection (1), as amended, a corporation formed for the purpose of constructing a railroad line, or for operating such a line, may not transfer ownership of property or rights-of-way acquired through the exercise of eminent domain as authorized by this section to any other person or entity. SECTION 2. 38-1-114, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 38-1-114. Formula for computing compensation - attorney fees - definitions. (2.5) In exercising the power of eminent domain in accordance with the provisions of this article, to the extent not otherwise addressed in subsection (2) of this section, a corporation formed for the purpose of constructing a railroad line, or for operating such a line, shall comply to the extent practicable with all laws that govern the use of eminent domain by the department of transportation for state highway purposes. In connection with proceedings for the acquisition or condemnation of property by such corporation, in addition to any compensation awarded to the owner in an eminent domain proceeding, the corporation shall reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees and court costs incurred by the owner in connection with such proceedings. SECTION 3. 38-1-122 (1.5), Colorado Revised Statutes, is amended to read: 38-1-122. Attorney fees. (1.5) In connection with proceedings for the acquisition or condemnation of property in which the award determined by the court exceeds ten thousand dollars, in addition to any compensation awarded to the owner in an eminent domain proceeding, the condemning authority shall reimburse the owner whose property is being acquired or condemned for all of the owner's reasonable attorney fees incurred by the owner where the award by the court in the proceedings equals or exceeds one hundred thirty percent of the last written offer given to the property owner prior to the filing of the condemnation action. The provisions of this subsection (1.5) shall not apply to any condemnation proceeding seeking to acquire rights-of-way under article 4, 5, or 5.5 of this title, article 45 of title 37, C.R.S., or section 7 of article XVI of the Colorado constitution. Notwithstanding any other provision of this subsection (1.5), the provisions of this subsection (1.5) shall not apply in connection with proceedings for the acquisition or condemnation of property by a corporation formed for the purpose of constructing a railroad line, or for operating such a line, in which case reimbursement for attorney fees and court costs shall be made in accordance with the provisions of section 38-1-114 (2.5). SECTION 4. Act subject to petition - effective date - applicability. (1) This act shall take effect September 1, 2009. (2) However, if a referendum petition is filed against this act or an item, section, or part of this act during the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution, then the act, item, section, or part, shall not take effect unless approved by the people at a biennial regular general election and shall take effect on the date specified in subsection (1) or on the date of the official declaration of the vote thereon by proclamation of the governor, whichever is later. (3) The provisions of this act shall apply to condemnation proceedings filed on or after the applicable effective date of this act.