A.R.S. tit. 12 ch. 8 — Arizona Revised Statutes Title 12 Chapter 8 — Special Actions And Proceedings Relating To Property

12-1101. Parties; claim; service on attorney general A. An action to determine and quiet title to real property may be brought by any one having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action. B. When the state is made defendant a copy of the summons and complaint shall be served upon the attorney general. 12-1102. Complaint The complaint shall: 1. Be under oath. 2. Set forth generally the nature and extent of plaintiff's estate. 3. Describe the premises. 4. State that plaintiff is credibly informed and believes defendant makes some claim adverse to plaintiff. When the state is made defendant, the complaint shall set forth with particularity or on information or belief the claim of the state adverse to plaintiff. 5. Pray for establishment of plaintiff's estate and that defendant be barred and forever estopped from having or claiming any right or title to the premises adverse to plaintiff. 12-1103. Disclaimer of interest and recovery of costs; request for quit claim deed; disclaimer of interest by state A. If defendant, other than the state, appears and disclaims all right and title adverse to plaintiff, he shall recover his costs. B. If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state, holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney's fee to be fixed by the court. C. If, after appropriate investigation, it appears to the attorney general that the state claims no right or title to the property adverse to plaintiff, he may file a disclaimer of right and title. 12-1104. Allegation of lien or interest claimed by adverse party; jurisdiction of court to enter decree A. In an action to quiet title to real property, if the complaint sets forth that any person or the state has or claims an interest in or a lien upon the property, and that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall hear evidence thereon. B. If it is proved that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall have jurisdiction to enter judgment and plaintiff shall be entitled to judgment barring and forever estopping assertion of the interest or lien in or to or upon the real property adverse to plaintiff. 12-1111. Purposes for which eminent domain may be exercised Subject to the provisions of this title, the right of eminent domain may be exercised by the state, a county, city, town, village, or political subdivision, or by a person, for the following uses: 1. All public uses authorized by the government of the United States. 2. Buildings and grounds for any public use of the state and all other public uses authorized by the legislature. 3. Buildings and grounds for the use of a county, city, town or school district. 4. Canals, aqueducts, flumes, ditches or pipes, for conducting water for the use of the inhabitants or for drainage of a county, city, town or village. 5. Raising the banks of streams, removing obstructions therefrom, or widening, deepening or straightening their channels. 6. Roads, streets and alleys, and all other public uses for the benefit of a county, city, town or village, or the inhabitants thereof, which is authorized by the legislature. The method of apportioning and collecting the costs of the improvements authorized by paragraphs 3, 4, 5 and 6 shall be as provided in the law by which they are authorized. 7. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and turnpike roads and highways. 8. Steam, horse, mule, electric and cable railroads or railways. 9. Telegraph and telephone lines and conduits for public communication. 10. Electric light and power transmission lines, pipe lines used for supplying gas, and all transportation, transmission and intercommunication facilities of public service agencies. 11. Aviation fields. 12. Reservoirs, canals, ditches, flumes, aqueducts and pipes, for the use of a county, city, town or village, or its inhabitants, or for public transportation for supplying mines and other industrial enterprises, farms and farm neighborhoods with water for irrigation, domestic and other needful purposes, and for generating electricity. 13. Draining and reclaiming lands, and for floating logs and lumber on nonnavigable streams. 14. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines, and outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse matter from mines, and an occupancy in common by the owners or possessors of different mines, or any place for the flow, deposit or conduct of tailings or refuse matter from their several mines. 15. Byroads leading from highways to residences and farms. 16. Private canals, ditches, flumes, aqueducts and pipes for conducting water from natural water courses or bodies or from public sources where the lands to be irrigated are not directly reached by such natural water course or public sources. 17. Pipe lines to carry petroleum, petroleum products or any other liquid. 18. Rights of way, station grounds, pits, yards, sidetracks and other necessary facilities for railways. 12-1112. Prerequisites to taking property by condemnation Except as provided by section 28-7102, before property may be taken, it shall appear that: 1. The use to which the property is to be applied is a use authorized by law. 2. The taking is necessary to such use. 3. If the property is already appropriated to some public use, the public use to which it is to be applied is a more necessary public use. 12-1113. Estates in land subject to condemnation The interests, estates and rights in lands subject to be taken for public use, are: 1. A fee simple, when taken for public buildings or grounds or for permanent buildings, for use in connection with a right-of-way or for an outlet for the flow or a place for the deposit of tailings or refuse from a mine or for irrigating ditches. A leasehold interest in a building may be taken only if the underlying property is taken in fee title or easement. 2. An easement when taken for any use other than those set forth in paragraph 1. 3. A right of entry on and occupation of lands, and the right to take from the lands earth, gravel, stone, trees and timber necessary for a public use. 4. A use in the water of a stream, river or spring. 12-1114. Private property subject to condemnation Private property which may be taken includes: 1. All real property belonging to any person, including any and all water and water rights for the irrigation of any land condemned, belonging to or used in connection with the land for the irrigation thereof, with right of way for the water or water rights condemned through irrigating canals and ditches leading to the land condemned. 2. Lands belonging to the state, or to any county, city, town or village, not appropriated to some public use. 3. Property appropriated to public use. 4. Franchises for toll roads, toll bridges, and ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads or other more necessary public uses. 5. All rights of way through canyons, passes or defiles, and all rights of way for any and all purposes mentioned in paragraph 2 of section 12-1111, and any and all structures and improvements thereon, and the lands held or used in connection therewith, intersected by any other right of way or improvements or structures thereon, which shall also be subject to a limited use in common with the owner thereof when necessary, but such uses, crossings, intersections and connections shall be made in the manner most compatible with the greatest public benefit and least private injury. 6. All classes of private property not enumerated, including property for use in water or water rights, taken for public use when the taking is authorized by law. 12-1114.01. Property of the United States subject to condemnation; duty of attorney general to file action; exclusions A. Property that may be taken under this article includes property possessed by the United States government unless: 1. The property was acquired by the federal government with the consent of the legislature pursuant to article I, section 8, clause 17, Constitution of the United States. 2. The property consists of Indian lands owned or held by a federally recognized Indian tribe, nation, band or community as reservation lands, allotment lands or sovereign or proprietary lands or in any other capacity. B. This state shall be the plaintiff described in this article in an action to condemn property described in subsection A. This state is not responsible for legal actions filed by other persons or entities. C. The attorney general shall file eminent domain actions with the consent of the United States government on property described in subsection A: 1. That facilitate this state's ability to manage, or provide access to, or increase the profitability of, the lands owned or held in trust by this state for the benefit of public schools and other institutions of this state consistent with this state's fiduciary responsibilities toward the beneficiaries of the trust lands. 2. For a public use that increases the ability of this state to generate revenue. D. This section does not apply with respect to: 1. Property held by the United States for the benefit, including water rights, of a federal reclamation project or managed by a political subdivision of this state, or a special taxing district organized under title 48. 2. Property on which permanent improvements are constructed or that is legally encumbered. 12-1115. Right of state to enter and survey property for public use A. Where land is required for public use, the state, or its agents in charge of such use, may survey and locate the land, but it shall be located in the manner which will be most compatible with the greatest public good and the least private injury. B. The land may be entered upon to make examinations, surveys and maps thereof, and the entry constitutes no cause of action in favor of the owners of the land, except for injuries resulting from negligence, wantonness or malice. C. A person seeking to acquire property for any of the public uses authorized by this title is an agent of the state. 12-1116. Actions for condemnation; immediate possession; money deposit A. All actions for condemnation shall be brought as other civil actions in the superior court in the county in which the property is located except that, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall deliver to the property owner of record and as a courtesy to the sole lessee of record, if applicable, according to the records of the county recorder in the county in which the property is located: 1. A written offer to purchase the property or interest in the property and to pay just compensation for the property or interest in the property and for any compensable damages to any remaining property. The offer must constitute the plaintiff's estimate of just compensation. The offer may be made subject to any lessees of record or any lessees who may claim a compensable interest. The offer does not impose an obligation on the plaintiff to provide a written offer to purchase the lessee's interest. 2. One or more appraisals that support the amount of the proposed compensation. B. Except for special taxing districts formed pursuant to title 48, chapter 17, if no lease is recorded or if more than one lease is recorded for the property with the county recorder of the county in which the property is located, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall provide notice of the offer and appraisal to the party having a plain and obvious commercial ownership or operational interest in substantial improvements on the property by posting the notice in plain sight at the property that may be subject to condemnation. C. For special taxing districts formed pursuant to title 48, chapter 17, if more than one lease is recorded for the property with the county recorder of the county in which the property is located, at least twenty days before filing an action for condemnation of property or any interest in property, the plaintiff shall provide notice of the offer and appraisal by delivering to all property interest holders of record the notice that an offer has been made and an appraisal has been conducted. The notice does not apply to lessees of record if the lease or other written agreement governing the interest holder's rights in the property provides that the property interest holder would not be entitled to condemnation proceeds. D. If a lessee that is not noted in the record of the county recorder and has a commercial ownership or operational interest in substantial improvements on the property requests a copy of the offer and appraisal the plaintiff shall promptly comply with the request on presentation of documentation by the lessee of the lessee's interest in the property. E. At the time of filing the complaint, or at any time after filing the complaint, the plaintiff may apply to the court for an order permitting the plaintiff to take possession of and use the property sought to be condemned for the purpose prayed for. F. The superior court may waive the requirements of subsection A, B, C or D of this section if the court determines that the plaintiff will suffer immediate and irreparable harm that outweighs the property owner's or lessee's interest. G. On filing the application, the court shall set a time for a hearing. Notice shall be served on the parties in interest by personal service within the state, or by publication if without the state, in any manner as the court directs. H. On the day of the hearing, if it appears that the use for which the property is sought to be condemned is a necessary use, the court shall receive evidence as to the probable damages to each owner, possessor or person having an interest in each parcel of land sought to be condemned and of any unpaid property taxes that have been levied, including penalties and interest, on the property sought to be condemned and may direct that on a deposit of money, on direct payment to each owner, possessor or person having an interest in each parcel, or if the condemnor is the state or a county, city, town or political subdivision of this state, on posting a bond in a form to be approved by the court, the plaintiff shall be let into the possession and full use of the parcels of land, as described in the order, for the purposes specified in the order. I. The plaintiff may deposit the money or bond with the clerk of the court or the state treasurer. The money or bond may be held for the use and benefit of each person having an interest in each parcel of land sought to be condemned, subject to final judgment after trial of the action, and may be held also as a fund to pay any further damages and costs recovered in the proceedings and any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, as well as all damages sustained by the defendant if for any cause the property is not finally taken for public use. The deposit of the money or bond shall not discharge the plaintiff from liability to maintain the fund in full, but it shall remain deposited for all accidents, defalcations or other contingencies, as between the parties to the proceedings, at the risk of the plaintiff, until the compensation or damage is finally settled by judicial determination, and the court awards such part of the money or bond as shall be determined to the defendant, or until the clerk or the state treasurer is ordered by the court to disburse it. The clerk of the court or the state treasurer is liable to the plaintiff for the deposit or bond if it is lost or abstracted. J. If the plaintiff elects to deposit the money or bond in the state treasury, the state treasurer shall receive the money or bond and return a receipt for the money or bond to the court, and the state treasurer shall safely keep the deposit in a special fund to be entered on the state treasurer's books as the condemnation fund. The state treasurer shall invest and divest monies in the condemnation fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. The state treasurer shall disburse the money deposited and, if necessary, convert the investments to cash for the purpose of making the disbursements or forfeit the bond as the court may direct pursuant to its judgment. After satisfaction of the judgment in a condemnation action and payment of any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, the excess, if any, of the deposit made regarding the action, including monies earned by the investment and reinvestment of the deposit, shall be returned by the state treasurer to the plaintiff by a warrant that the department of administration shall issue upon direction of the state treasurer after having received a certified copy of the judgment and without regard to provisions requiring the filing of a claim against the state. Any monies remaining in the condemnation fund at the end of the fiscal year do not revert to the state general fund. K. If the plaintiff elects to deposit the money or bond with the clerk of the court, the clerk shall receive the money or bond and return a receipt for the money or bond to the court, and the clerk is liable to the plaintiff if the money or bond is lost or abstracted. The clerk shall disburse the money or forfeit the bond as the court may direct pursuant to its judgment. Any money remaining in a deposit after the judgment of the court and all unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, have been fully paid shall be returned by the clerk to the plaintiff. L. On application by any party, the court may order that money deposited with the clerk of the court or the state treasurer be paid to any owner, possessor or person having an interest in any parcel. M. Subject to court approval, the parties may also stipulate any of the following with any owner, occupant or possessor of any parcel: 1. To the amount of money that the plaintiff may deposit with the clerk of the court or with the state treasurer for any owner, occupant or possessor of any parcel. 2. To the amount of direct payment to any owner, occupant or possessor of any parcel. 3. To the payment of money deposited with the clerk of the court or the state treasurer to any owner, occupant or possessor of any parcel. 4. For the release of any bond on payment to any owner, occupant or possessor of any parcel. N. A person in interest for whom a deposit has been made pursuant to stipulation for the person's withdrawal is entitled to interest on the amount that the person is allowed to withdraw from the date the order for immediate possession is signed by the court pursuant to subsection C of this section until the date of withdrawal. This person is also entitled to interest on that portion of the final judgment, exclusive of costs allowed by the court, that exceeds the amount that is deposited for the person's withdrawal from the date the order for immediate possession is signed by the court until the judgment is paid. If the amount that is withdrawn by any defendant exceeds the amount of the final judgment awarded the defendant inclusive of costs allowed by the court and any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property sought to be condemned, the defendant withdrawing the funds immediately shall repay to the plaintiff the excess, with legal interest from the date of withdrawal to the date of repayment, except that the amount that is necessary to pay any unpaid property taxes that were levied as of the date of the order for immediate possession, including penalties and interest, on the property shall be paid to the county treasurer of the county in which the property sought to be condemned is located. O. Any stipulation that is made or any evidence that is introduced pursuant to this section shall not be introduced in evidence or used to the prejudice of any party in interest on the trial of the action. 12-1117. Complaint The complaint shall set forth: 1. The name of the person asserting the public use for which the property is sought, as plaintiff. 2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, as defendants. 3. A statement of the right of plaintiff. 4. If a right of way for a road, ditch, canal or other purpose is sought, the location and general route, accompanied with a map thereof. 5. A description of each piece of land sought to be taken, and whether the land includes the whole or only a part of an entire parcel or tract. 12-1118. Joint or separate actions; consolidation A. All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the election of plaintiff, but the court may consolidate or separate them for convenience of the parties. B. When application for condemnation of a right of way for sewage disposal, or to obtain water, is made on behalf of a settlement, village or an unincorporated town, the board of supervisors of the county may be the plaintiff. 12-1119. Summons; contents; service A. The clerk shall issue a summons containing: 1. The names of the parties. 2. A general description of the whole property. 3. A statement of the public use for which it is sought. 4. A reference to the complaint for descriptions of the respective parcels. 5. Notice to defendants to appear and show cause why the property described should not be condemned as prayed for in the complaint. B. The summons in all other particulars shall be as provided in civil actions, and shall be served in like manner. 12-1120. Right to defend action All persons occupying, or having or claiming an interest in any of the property described in the complaint, or in the damages for the taking thereof, though not named, may appear, plead and defend in respect to his property or interest, or that claimed by him, as if named in the complaint. 12-1121. Powers of court; precedence A. The court may determine and regulate the place and manner of making connections and crossings or of enjoying the common use mentioned in paragraph 14 of section 12-1111. It shall hear and determine all adverse or conflicting claims to the property sought to be condemned and the claim of damages therefor, and shall determine the respective rights of different parties seeking condemnation of the same property. B. The court in which any action brought under articles 2 and 3 of this chapter is pending shall, at the request of any party, give the action precedence over other civil actions. 12-1122. Ascertainment and assessment of value, damages and benefits A. The court or jury shall ascertain and assess: 1. The value of the property sought to be condemned and all improvements on the property pertaining to the realty, and of each and every separate estate or interest in the property, and if it consists of different parcels, the value of each parcel and each estate or interest in the parcel separately. 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages that will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff. 3. How much the portion not sought to be condemned and each estate or interest in the portion will be benefited separately, if at all, by construction of the improvement proposed by the plaintiff. If the benefit is equal to the damages assessed under paragraph 2 of this subsection, the owner of the parcel shall be allowed no compensation except for the value of the portion taken, but if the benefit is less than the damages so assessed, the benefit shall be deducted from the damages, and the remainder shall be the only damages allowed in addition to the value. 4. If the property sought to be condemned is for a railroad, the cost of good and sufficient fences along the line of the railroad, and the cost of cattle guards where fences may cross the line of the railroad. B. As far as practicable, compensation shall be assessed for each source of damage separately. C. Value shall be determined by ascertaining the most probable price estimated in terms of cash in United States dollars or comparable market financial arrangements that the property would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all of the uses and purposes to which it was adapted and for which it was capable. D. For the purpose of assessing compensation and damages with respect to property sought to be condemned by this state for transportation purposes, in addition to subsections A and B of this section, the court or a jury shall assess compensation and damages pursuant to sections 28-7091 and 28-7097. 12-1123. Accrual of right to compensation and damages; limitation A. For the purpose of assessing compensation and damages, the right to compensation and damages shall be deemed to accrue at the date of the summons, and its actual value at that date shall be the measure of compensation and damages. B. If there is an order for immediate possession before the final judgment, the compensation and damages awarded shall draw interest from the date the order is entered by the court. If the defendant is allowed to withdraw money deposited by the plaintiff pursuant to section 12-1116, subsection M, the defendant is entitled to interest on the money that the defendant is allowed to withdraw from the date the order for immediate possession is signed by the court until the date of the withdrawal. C. No improvements placed upon the property subsequent to the date of service of the summons shall be included in the assessment of compensation or damages. D. If an order is made letting plaintiff into possession before the recording of the final order of condemnation, the plaintiff shall record the order in the office of the county recorder of the county or counties in which the property is located and on the recording so much of the defendant's property as is affected by the order shall immediately be granted tax exempt status for future tax rolls and any unpaid property taxes that have been levied, including penalties and interest, on the property shall be paid to the county treasurer in the county in which the property is located pursuant to section 12-1116. 12-1124. Payment of compensation; effect of failure to pay Payment of compensation and damages may be made to a defendant or defendants entitled thereto, or the money may be deposited in court and distributed to the defendant or defendants entitled thereto. At the time the money is paid or deposited, all unpaid property taxes which were levied as of the date of the order for immediate possession, including penalties and interest, that are due on the property condemned shall be paid to the county treasurer in the county in which the condemned property is located. If the money is not so paid or deposited, the defendant or defendants or the county treasurer may have execution as in civil actions, and if the money cannot be collected on execution, the court, upon a showing to that effect, shall set aside and annul the entire proceedings, and restore possession of the property to defendant or defendants, if possession has been taken by plaintiff. 12-1125. Payment of damages in proceedings by railroad A. If the property sought to be condemned is for a railroad, plaintiff shall, within thirty days after final judgment, pay the sum assessed, but may, before payment, elect to build fences and cattle guards. If plaintiff so elects, he shall execute and deliver to defendant a bond, with sureties to be approved by the court, in double the assessed cost thereof conditioned that plaintiff will build the fences and cattle guards within eighteen months from the time the railroad is built on the land taken, and if bond is given, plaintiff shall not be required to pay the cost of the fences and cattle guards to defendant. B. In an action on the bond reasonable attorney's fees, in addition to all damages, may be recovered. 12-1126. Final order of condemnation; recording; vesting of property A. When the final judgment has been satisfied and all unpaid property taxes which were levied as of the date of the order for immediate possession, including penalties and interest, on the property that is the subject of the condemnation action have been paid, the court shall make a final order of condemnation, describing the property condemned and the purposes of the condemnation. B. A copy of the order shall be recorded in the office of the county recorder of the county or counties in which the property is located, and thereupon the property described shall vest in plaintiff for the purposes therein specified. 12-1127. Possession by plaintiff after judgment or pending appeal; receipt of payment as abandonment; custody of money paid into court; costs of new trial A. At any time after judgment is entered, or pending an appeal from the judgment to the supreme court, when plaintiff has paid into court for defendant or defendants the full amount of the judgment, and such other amounts as required by the court as a fund to pay further damages and costs which may be recovered in the proceedings, as well as all damages that may be sustained by defendant or defendants if for any cause the property is not finally taken for public use, the superior court in which the action was tried may, upon notice of not less than ten days, authorize plaintiff, if already in possession, to continue therein, or if not, then to take possession of and use the property until final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against plaintiff on account thereof. B. The defendant or defendants who are entitled to the money paid into court upon any judgment may demand and receive the money at any time thereafter upon an order of the court. The court shall, upon application, order the money so paid into court delivered to the party entitled thereto upon his filing either a satisfaction of the judgment or a receipt for the money, and an abandonment of all defenses to the action or proceeding except as to the amount of damages to which he may be entitled if a new trial is granted. Such payment shall be deemed an abandonment of all defenses, except the party's claim for greater compensation. C. The money paid into court on final judgment may be placed by order of court in the custody of the clerk or state treasurer to be held or disbursed upon order of court, and plaintiff and such officers shall be subject to the same responsibility, liabilities and restrictions with respect thereto as provided in this article when money is paid into court by plaintiff upon application for possession before trial. D. When a new trial is granted upon application of a defendant, and he fails upon the trial to obtain greater compensation than was allowed upon the first trial, the costs of the new trial shall be taxed against him. 12-1128. Costs and jury fees A. Costs may be allowed or not, and if allowed may be apportioned between the parties on the same or adverse sides, in the discretion of the court. B. The jury fee may be assessed or not against the plaintiff, in the discretion of the court. If jury fees are so assessed, they shall be calculated in the same manner and amounts as in other civil actions and the plaintiff shall pay such fee to the clerk of the court for transmittal to the county treasurer who shall dispose such monies in the same manner as the disposition of other jury fees. C. In an action for condemnation of property by or on behalf of an educational, reformatory or penal institution of the state, if the board or officers having charge of the institution, prior to commencement of the action or proceeding, tender to the owner of the property such sum of money as the board or officers deem the reasonable value of the property, and the owner refuses to accept it and transfer the property, then all costs and expenses of the action or proceeding shall be taxed against the owner unless the sum of money assessed in the judgment as the value of the property and compensation to be paid therefor is greater than the amount so tendered. 12-1129. Dismissal of condemnation action; litigation expenses A. If a plaintiff causes a condemnation action under this article to be dismissed without prejudice before payment of the compensation and damages awarded the defendant by the court or jury, the plaintiff shall not initiate any eminent domain proceeding with respect to the same property for the same or a related project for at least two years after the date of the verdict or judgment. B. The court having jurisdiction of a condemnation action under this article shall award the owner with any right to, title to or interest in the property that is the subject of the action an amount that will reimburse the owner for the owner's reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceeding if either of the following occurs: 1. The final judgment is that the plaintiff cannot acquire the real property by condemnation. 2. The proceeding is abandoned on a motion by the plaintiff. C. If the proceeding is dismissed on a motion by the plaintiff because the parties have agreed to settle the matter out of court, both parties shall pay their own costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees unless otherwise specified by the parties in the settlement agreement. 12-1130. Fees and expenses; appraisal; relocation benefits; applicability A. In a proposed condemnation action if an owner-occupant of a residential property disagrees with the offer and appraisal, the owner-occupant may obtain a second appraisal from an appraiser who is on the approved list that is maintained by the governmental entity and the governmental entity shall pay for the second appraisal. B. Before filing an eminent domain action, the governmental entity shall provide to the owner-occupant all appraisals of the property that the governmental entity obtains. C. Any governmental entity that acquires owner-occupied residential property by condemnation or threat of condemnation shall provide the owner-occupant with a determination of relocation benefits in an amount that allows the owner-occupant to purchase a comparable replacement dwelling as provided under applicable relocation law. D. In a condemnation action to acquire owner-occupied residential property, the court may award fees and other expenses to any party other than this state or a city, town or county or any other political subdivision of this state. In making the determination, the court may consider the amount of the difference between the final offer and the compensation awarded, the percentage of the difference between the final offer and the award and any other factors the court deems appropriate. For the purposes of this subsection, "fees and other expenses" means the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project that the court finds to be directly related to and necessary for the presentation of the party's case and reasonable and necessary attorney fees. E. This section does not apply to actions for acquisition of property for public safety, transportation, flood control or utility purposes. 12-1131. Property may be taken only for public use consistent with this article (Caution: 1998 Prop. 105 applies) Eminent domain may be exercised only if the use of eminent domain is authorized by this state, whether by statute or otherwise, and for a public use as defined by this article. 12-1132. Burden of proof (Caution: 1998 Prop. 105 applies) A. In all eminent domain actions the judiciary shall comply with the state constitution's mandate that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public. B. In any eminent domain action for the purpose of slum clearance and redevelopment, this state or a political subdivision of this state shall establish by clear and convincing evidence that each parcel is necessary to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of structures that are beyond repair or unfit for human habitation or use, or to acquire abandoned property and that no reasonable alternative to condemnation exists. 12-1133. Just compensation; slum clearance and redevelopment (Caution: 1998 Prop. 105 applies) In any eminent domain action for the purpose of slum clearance and redevelopment, if private property consisting of an individual's principal residence is taken, the occupants shall be provided a comparable replacement dwelling that is decent, safe, and sanitary as defined in the state and federal relocation laws, section 11-961 et seq. and 42 USC 4601 et seq., and the regulations promulgated thereunder. At the owner's election, if monetary compensation is desired in lieu of a replacement dwelling, the amount of just compensation that is made and determined for that taking shall not be less than the sum of money that would be necessary to purchase a comparable replacement dwelling that is decent, safe, and sanitary as defined in the state and federal relocation laws and regulations. 12-1134. Diminution in value; just compensation (Caution: 1998 Prop. 105 applies) A. If the existing rights to use, divide, sell or possess private real property are reduced by the enactment or applicability of any land use law enacted after the date the property is transferred to the owner and such action reduces the fair market value of the property the owner is entitled to just compensation from this state or the political subdivision of this state that enacted the land use law. B. This section does not apply to land use laws that: 1. Limit or prohibit a use or division of real property for the protection of the public's health and safety, including rules and regulations relating to fire and building codes, health and sanitation, transportation or traffic control, solid or hazardous waste, and pollution control; 2. Limit or prohibit the use or division of real property commonly and historically recognized as a public nuisance under common law; 3. Are required by federal law; 4. Limit or prohibit the use or division of a property for the purpose of housing sex offenders, selling illegal drugs, liquor control, or pornography, obscenity, nude or topless dancing, and other adult oriented businesses if the land use laws are consistent with the constitutions of this state and the United States; 5. Establish locations for utility facilities; 6. Do not directly regulate an owner's land; or 7. Were enacted before the effective date of this section. C. This state or the political subdivision of this state that enacted the land use law has the burden of demonstrating that the land use law is exempt pursuant to subsection B. D. The owner shall not be required to first submit a land use application to remove, modify, vary or otherwise alter the application of the land use law to the owner's property as a prerequisite to demanding or receiving just compensation pursuant to this section. E. If a land use law continues to apply to private real property more than ninety days after the owner of the property makes a written demand in a specific amount for just compensation to this state or the political subdivision of this state that enacted the land use law, the owner has a cause of action for just compensation in a court in the county in which the property is located, unless this state or political subdivision of this state and the owner reach an agreement on the amount of just compensation to be paid, or unless this state or political subdivision of this state amends, repeals, or issues to the landowner a binding waiver of enforcement of the land use law on the owner's specific parcel. F. Any demand for landowner relief or any waiver that is granted in lieu of compensation runs with the land. G. An action for just compensation based on diminution in value must be made or forever barred within three years of the effective date of the land use law, or of the first date the reduction of the existing rights to use, divide, sell or possess property applies to the owner's parcel, whichever is later. H. The remedy created by this section is in addition to any other remedy that is provided by the laws and constitution of this state or the United States and is not intended to modify or replace any other remedy. I. Nothing in this section prohibits this state or any political subdivision of this state from reaching an agreement with a private property owner to waive a claim for diminution in value regarding any proposed action by this state or a political subdivision of this state or action requested by the property owner. 12-1135. Attorney fees and costs (Caution: 1998 Prop. 105 applies) A. A property owner is not liable to this state or any political subdivision of this state for attorney fees or costs in any eminent domain action or in any action for diminution in value. B. A property owner shall be awarded reasonable attorney fees, costs and expenses in every eminent domain action in which the taking is found to be not for a public use. C. In any eminent domain action for the purpose of slum clearance and redevelopment, a property owner shall be awarded reasonable attorney fees in every case in which the final amount offered by the municipality was less than the amount ascertained by a jury or the court if a jury is waived by the property owner. D. A prevailing plaintiff in an action for just compensation that is based on diminution in value pursuant to section 12-1134 may be awarded costs, expenses and reasonable attorney fees. 12-1136. Definitions (Caution: 1998 Prop. 105 applies) In this article, unless the context otherwise requires: 1. "Fair market value" means the most likely price estimated in terms of money which the land would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it is adapted and for which it is capable. 2. "Just compensation" for purposes of an action for diminution in value means the sum of money that is equal to the reduction in fair market value of the property resulting from the enactment of the land use law as of the date of enactment of the land use law. 3. "Land use law" means any statute, rule, ordinance, resolution or law enacted by this state or a political subdivision of this state that regulates the use or division of land or any interest in land or that regulates accepted farming or forestry practices. 4. "Owner" means the holder of fee title to the subject real property. 5. "Public use": (a) Means any of the following: (i) The possession, occupation, and enjoyment of the land by the general public, or by public agencies; (ii) The use of land for the creation or functioning of utilities; (iii) The acquisition of property to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of a structure that is beyond repair or unfit for human habitation or use; or (iv) The acquisition of abandoned property. (b) Does not include the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health. 6. "Taken" and "taking" mean the transfer of ownership or use from a private property owner to this state or a political subdivision of this state or to any person other than this state or a political subdivision of this state. 12-1137. Applicability (Caution: 1998 Prop. 105 applies) If a conflict between this article and any other law arises, this article controls. 12-1138. Severability (Caution: 1998 Prop. 105 applies) If any provision of this act or its application to any person or circumstance is held invalid that invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. 12-1139. Property right claims; malicious delay; expedited review; definition A. A plaintiff that files a complaint in superior court that asserts a malicious delay claim pursuant to sections 9-500.54 or 11-269.31 for a single-family residential application is entitled to expedited judicial review of the claim. B. Within ten calendar days after the service of the complaint, the court shall set an initial case management conference with the parties to establish an expedited schedule for discovery, briefing and hearings. C. Unless otherwise ordered for good cause, all fact discovery in the action shall be completed as expeditiously as possible after the initial case conference. D. The court shall consider and rule on all motions for summary judgment or other dispositive motions as soon as practicable. E. The court shall set a trial or final hearing date as soon as practicable after the case management conference, absent a finding of good cause. F. An appeal to the court of appeals from a superior court judgment in an action described in subsection A of this section is entitled to a scheduling preference on the appellate docket, and the court of appeals shall expedite briefing schedules and oral argument consistent with the interests of justice unless the court finds for good cause that expedited review is not feasible. G. A party may petition for special action relief in the court of appeals or supreme court and such actions shall receive expedited processing. H. For the purposes of this section: 1. "Application" means any of the following for single-family residential development: (a) A site plan. (b) A development plan. (c) A land division. (d) A lot line adjustment. (e) A lot tie. (f) A preliminary or final plat. (g) A plat amendment. (h) A building permit. 12-1141. Definitions In this article, unless the context otherwise requires: 1. "Authorized corporation" means a corporation or association engaged or about to engage in a public works project, as defined in this article, for a public use, but the construction of the public works project and its conduct thereafter by the corporation or association is subject to regulation or supervision by a federal agency, as defined in this article, or a state public body, as defined in this article, whether by virtue of an agreement, provision of law or otherwise. 2. "Court" means the court in which jurisdiction over proceedings under this article is vested by the provisions of section 12-1142. 3. "Federal agency" means the United States, the federal emergency administration of public works or any other agency or instrumentality, corporate or otherwise, of the United States. 4. "Plaintiff" means the person by whom proceedings for acquisition of real property, as defined in this article, are instituted pursuant to the provisions of section 12-1142. 5. "Public works project" means a work or undertaking which is financed in whole or in part by a federal agency, as defined in this article, or by a state public body, as defined in this article. 6. "Real property," "property" or "land" means all lands, including improvements and fixtures thereon, lands under water, all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal or equitable, in lands or water, and all rights, interests, privileges, easements, encumbrances and franchises relating thereto, including terms for years and liens of judgment, mortgage or otherwise. 7. "State public body" means the state or a county, city, town, municipal corporation, authority or any other subdivision, agency or instrumentality thereof, corporate or otherwise. 12-1142. Agencies qualified to institute proceedings; jurisdiction of court; right of plaintiff to enter upon land A. A federal agency, state public body or authorized corporation may institute condemnation proceedings under this article for acquisition of real property necessary for a public works project. The proceedings may be instituted in the superior court in a county in which any part of the real property or the proposed public works project is located, and they shall be entitled to precedence over other civil actions. B. The plaintiff may enter upon the real property proposed to be acquired for the purpose of making a survey thereof, or posting any notice thereon required by this article. The survey and posting of notice shall be done in such manner as will cause the least possible inconvenience to the owners of the property. 12-1143. Complaint A proceeding under this article may be instituted by filing a complaint which shall be sufficient if it sets forth: 1. The name of plaintiff. 2. A description of the property, sufficient for identification thereof, to which there may be attached a plat or map thereof. 3. A statement that the acquisition of the property by plaintiff is necessary for a public works project and a brief general description of the public works project. 4. A statement that the action is instituted under this article. 5. An appropriate prayer for relief. 12-1144. Inclusion of separate parcels in single action Any number of parcels of land, whether owned by the same or different persons and whether contiguous or not, may be included and condemned in one action, if the parcels are to be used for a single public works project. 12-1145. Notice of proceedings; effect of filing notice A. Notice of the action shall be given by one publication in a newspaper having a general circulation in each county in which any part of the property sought to be condemned is located. The notice shall be published at least twenty and not more than thirty days prior to the date set for the hearing on the validity of the proceedings. The notice shall be in substantially the following form: "TO WHOM IT MAY CONCERN: Notice is hereby given that _______________ (here insert name of plaintiff) has filed a complaint in the above court under the laws relating to the condemnation of real property for public works projects to acquire by condemnation for _________________ (here give brief general description of the public works project for which the land is sought to be acquired), the following described land: (Here describe the land sufficiently for identification thereof. The description may be by a plat or map.) Notice is further given that on ____________ (here insert date of hearing, which must be at least twenty days and not more than thirty days after the date of publication) there will be a hearing in this court, at the opening thereof, for the following purposes: 1. To determine the validity of the action and the right of plaintiff, if it so elects, to take title to and possession of such property prior to final judgment, as authorized by section 12-1155, and any persons having an interest in or lien upon the above described property shall be deemed to have waived their rights thereafter to object to the court's decision with respect to such issue, unless prior to that date they have filed in writing with the clerk of the court their objection thereto. 2. To consider the appointment of a special master to determine the compensation to be awarded for such property and the persons entitled thereto, unless written demand for a jury is filed with the court before the date of hearing, in which event the compensation to be awarded to the person filing such demand shall be ascertained by jury trial and not by special master. 3. Fixing the date and place at which the special master will hear and determine the compensation to be paid for such property and the person entitled thereto. Notice is further given that all claims or demands for compensation because of the taking and condemnation of such property shall be filed with the above court before _____________ (here insert a date fifteen days after the date above specified for the court hearing), or the compensation will be deemed waived. Dated the _________________ day of ___________________ _______________________ Clerk of the court" B. Notice of the action shall also be given: 1. By posting a copy of the notice in conspicuous places on the real property sought to be condemned. 2. By filing a copy of the notice in the office of the clerk of the court in which such proceedings are pending. 3. By filing, in the same manner as lis pendens is filed, a copy of the notice in the office of the county recorder in each county in which any part of the real property is located. C. The publication, posting and filing shall constitute legal and sufficient notice of the action to all persons having any interest in or lien upon the property described in the notice. Filing of the notice in the office of the county recorder shall be constructive notice of the proceedings to all persons who subsequently acquired an interest in or lien upon the property, and plaintiff shall take all property condemned under this article free of the claims of such persons. 12-1146. Waiver of certain rights by persons in interest; determination of issues; judgment on issues; appointment of guardian ad litem A. All persons who have not filed written objections with the court prior to the time of the hearing specified in the notice prescribed by section 12-1145, shall be deemed to have waived the right to file objections as to the sufficiency and validity of the complaint, the action and the relief sought thereby, and of the right of plaintiff to take title and possession prior to final judgment, as authorized by section 12-1155. All persons who have not filed with the clerk of the court prior to the date of hearing specified in the notice prescribed in section 12-1145, written demand for trial by jury as to the amount of compensation to be awarded shall be deemed to have waived the right. B. The court, at the time specified in the notice, after hearing and determining all issues of fact and law raised by the objections which have been filed, shall enter a final judgment with respect to such issues, and thereafter there shall remain for determination only the amount of the compensation to be paid and the persons entitled thereto. C. If an infant or other person under legal disability does not appear in the proceedings by his duly authorized legal representative, the court shall appoint a guardian ad litem to represent such person's interest in the proceedings before the special master appointed as provided by section 12-1147. 12-1147. Special master; duties; qualifications; compensation; oath; limitation upon powers A. The court, at the time of the hearing, shall appoint a special master to fix the amount of damages and compensation for the taking and condemnation of the property described in the complaint, to determine the persons entitled thereto and to report such facts to the court. B. The special master shall be a disinterested person not related to anyone having an interest in or lien upon the property sought to be condemned. The compensation of the special master shall not exceed fifteen dollars per day plus travel and subsistence expenses. C. The special master immediately after appointment shall subscribe to an oath that to the best of his ability he will truly find and return the compensation for the taking and condemnation of the property and the persons entitled thereto. D. This section and the succeeding sections of this article pertaining to the appointment, duties and powers of, and proceedings before, a special master shall not apply to any person who has filed a written demand for trial by jury as to the amount of compensation. The rights of such person as to the amount of compensation shall be determined by jury trial and not by the special master. 12-1148. Notice of hearing by special master A. Immediately after being appointed and taking the oath, the special master shall send notice by registered mail to all persons who have appeared in the action, or to their attorneys of record, and to all others having any interest in or lien upon the real property sought to be condemned, as shown by the records of the office of the county recorder, and to guardians ad litem appointed pursuant to the provisions of section 12-1146. The notice shall be addressed to such persons at their respective last known addresses and shall be substantially in the following form: "IN THE COURT FOR THE OF TO WHOM IT MAY CONCERN: Notice is hereby given that (here insert name of plaintiff) has filed a complaint in the above court to acquire by condemnation under the laws relating to the condemnation of real property for public works projects for (here give a brief general description of the public works project for which the land is sought to be acquired), the following described land: (Here describe the land sufficiently for the identification thereof. The description may be by a plat or map). All persons having an interest in or lien upon the above described property, for which compensation will be demanded, are hereby notified that all claims or demands for compensation by reason of the taking and condemnation of such property shall be filed in writing with said court before (here insert date at least fifteen days after the date set for the court hearing in the notice specified in section 12-1145), and shall be deemed waived unless so filed, and that on a hearing will be held by the special master at (insert time and place fixed by the court for such hearing) with respect to the amount of compensation to be paid for the property sought to be condemned, and the persons entitled thereto. Dated day of Special master appointed by the court." B. The special master shall also cause a copy of the notice to be posted in conspicuous pla