2013 Kentucky Revised Statutes CHAPTER 350 - SURFACE COAL MINING 350.280 Easements of necessity to abate certain dangerous violations and for appraisal purposes when access to property denied -- When effective -- Appraisal and calculation of damages -- Independent appraisal by property owner or legal occupant -- Payment of damages -- Payment of entry fee for appraisal purposes.
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350.280 Easements of necessity to abate certain dangerous violations and for
appraisal purposes when access to property denied -- When effective -Appraisal and calculation of damages -- Independent appraisal by
property owner or legal occupant -- Payment of damages -- Payment of
entry fee for appraisal purposes.
(1)
(a)
(b)
(c)
As used in this section, "he or she" includes "person" as defined in KRS
350.010.
If a permittee or operator has been issued a notice or order directing
abatement of a violation on the basis of an imminent danger to health and
safety of the public or significant imminent environmental harm, and the
notice or order requires access to property for which the permittee or
operator does not have the legal right of entry necessary in order to abate
that violation, and the owner or legal occupant of that property has
refused access, an easement of necessity is recognized on behalf of the
permittee or operator for the limited purpose of abating that violation. The
easement of necessity becomes effective, and the permittee or operator
is authorized to enter the property to undertake immediate action to abate
the violation if he or she concurrently:
1.
Provides to the property owner or legal occupant a copy of the
cabinet's order and a plan of action reasonably calculated to result in
abatement of the violation, repair of the damage, and restoration of
the property, and provides proof of liability insurance and workers'
compensation insurance covering any accidents or injuries occurring
on the property during the remedial work;
2.
Provides to the property owner or legal occupant and cabinet an
affidavit that he or she has been denied access to the property; and
3.
Provides to the property owner or legal occupant a statement that
he or she, the permittee or operator, will diligently pursue abatement
of the violation, and will obtain an appraisal completed by a real
estate appraiser certified under KRS Chapter 324A of the damages
to the property, including loss of use, that have resulted from the
violation, that the appraisal will be completed and provided to the
property owner or legal occupant within three (3) days of abatement
of the violation by the operator or permittee, and that he or she will
pay the property owner or legal occupant the amount of the
damages in the permittee or operator's appraisal at that time.
Following the effective date of the easement of necessity, the following
procedure shall be followed with respect to the appraisal of the damages:
1.
The permittee or operator shall have a certified appraiser on the site
and have his or her appraisal completed and submitted to the
property owner or legal occupant within three (3) days of abatement
of the violation by the operator or permittee;
2.
The property owner or legal occupant shall accept or reject this
appraisal in writing within seven (7) days of receipt of the completed
appraisal;
3.
If the property owner or legal occupant rejects this appraisal, he or
(2)
(3)
she may hire a real estate appraiser certified under KRS Chapter
324A to appraise the damages, including loss of use, that have
resulted from the violation, and this such appraisal shall be
completed and provided to the permittee or operator within thirty
(30) days of receipt of the permittee's or operator's completed
appraisal. Upon receipt of the invoice the permittee or operator shall
pay for the property owner or legal occupant's appraisal up to the
amount he or she paid for his or her own appraisal; and
4.
If the property owner or legal occupant accepts the permittee's or
operator's appraisal, the permittee or operator shall promptly pay the
property owner or legal occupant the amount of the damages
reflected therein.
(d) If the property owner or legal occupant has an appraisal done, and if,
based on his or her appraisal and the permittee's or operator's appraisal,
an agreement is not reached on the appraised damages, the permittee or
operator shall pay the property owner or legal occupant the amount of the
permittee's or operator's appraisal damages, and if the property owner or
legal occupant's appraisal damages are for more than the permittee's or
operator's, the permittee or operator shall pay the difference to the circuit
clerk, in the county in which the majority of the property lies, to be placed
in an interest-bearing account in a bank until final resolution of the matter
by agreement or court or jury judgment. If the property owner or legal
occupant is granted award of some or all of the difference, he or she shall
also receive the interest on that portion of the difference.
(e) If the property owner or legal occupant does not accept or reject the
permittee's or operator's appraisal and offer of funds for damages within
the time specified in subparagraph 2. of paragraph (c) of this subsection,
the appraisal and offer shall be deemed accepted.
(f) The appraiser shall calculate the damages to the property, including loss
of use, that have resulted from the violation which the owner or the legal
occupant shall be entitled to under this subsection as the difference
between the fair market value of the property before the violation and
after the abatement of the violation, plus the reasonable rental value of
the property during the period of time between the effective date of the
easement of necessity and the date of the abatement of the violation.
If a permittee or operator has been issued a notice or order directing
abatement of a violation other than one described in subsection (1) of this
section, and the notice or order requires access to property for which the
permittee or operator does not have the legal right of entry necessary in order
to abate that violation, and the owner or legal occupant of that property has
refused access, an easement of necessity is recognized on behalf of the
permittee or operator, for the limited purpose of allowing a real estate appraiser
certified under KRS Chapter 324A, chosen by the permittee or operator, to
enter upon the property to which the owner or legal occupant has refused
access in order for the appraiser to appraise the damages, including loss of
use, that likely will result from the violation.
(a) The easement for the limited purpose of allowing the appraisal under
(4)
subsection (2) of this section shall be recognized and take effect when the
operator or permittee:
1.
Provides to the property owner or legal occupant a copy of the
cabinet's order;
2.
Provides to the property owner or legal occupant and cabinet a plan
of remedial measures to abate the violation;
3.
Provides to the property owner or legal occupant and cabinet an
affidavit that he or she has been denied access to the property; and
4.
Provides to the property owner or legal occupant a statement that
he or she, the permittee or operator, will within seven (7) days of
entry of the appraiser obtain an appraisal of the damages to the
property including loss of use, that likely will result from the violation,
and that upon completion of the appraisal he or she will provide the
appraisal to the property owner or legal occupant and pay the
property owner or legal occupant an entry fee. The entry fee shall be
calculated as one-half (1/2) of the amount of the appraisal or the
sum of five hundred dollars ($500), whichever is greater, for the
privilege to enter the property and conduct the appraisal.
(b) Upon payment of the entry fee by the permittee or operator, an easement
of necessity shall be recognized on behalf of the permittee or operator for
the limited purposes of abating the violation and the operator or permittee
shall be authorized to enter the property to undertake immediate action to
abate the violation, provided that the landowner has been provided a plan
of action reasonably calculated to result in abatement of the violation,
repair of the damage, and restoration of the property, and the permittee or
operator provides proof of liability insurance and workers' compensation
insurance covering any accidents or injuries occurring on the property
during the remedial work.
(c) Following the effective date of the easement of necessity to abate the
violation, the procedures set forth in subsection (1)(c) to (f) of this section
shall apply. The entry fee shall be deducted from any subsequent
payment deemed due the property owner or legal occupant as a result of
the post-abatement appraisal or appraisals. If the entry fee exceeds the
amount of all appraisals, the property owner or legal occupant shall be
entitled to retain the entry fee in its entirety.
Nothing contained in this section shall affect any person's right to bring a civil
action for damages, including punitive and compensatory damages, or other
appropriate relief.
Effective:July 13, 2004
History: Amended 2004 Ky. Acts ch. 159, sec. 1, effective July 13, 2004. -Amended 2002 Ky. Acts ch. 284, sec. 1, effective April 9, 2002. -- Created 2000
Ky. Acts ch. 267, sec. 1, effective July 14, 2000.
Legislative Research Commission Note (7/13/2004). Although Ky. Acts ch. 159,
sec. 1(2), contains language concerning "real estate appraiser certified under
KRS Chapter 324," it is clear from the context that citing to KRS Chapter 324,
rather than to KRS Chapter 324A, was a manifest clerical or typographical error,
and it has been corrected in codification under KRS 7.136(1)(h).
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