2023 Arizona Revised Statutes › Title 9 - Cities and Towns › § 9-518 - Compensation for taking public utility; procedure for determining

9-518.
Compensation for taking public utility;  procedure for determining
A. Whenever the fair valuation of the plant and property of a public utility has not for any reason been determined by any other method provided by law,  or where no other method is provided,  the city or town may,  subject to the provisions of this section,  by the exercise of the right of eminent domain institute an action pursuant to article 2,  chapter 8,  of title 12,  and the court or jury shall,  in the manner hereinafter provided,  ascertain and assess the compensation to be paid for the taking of the plant and property of the public utility.
B. The court or jury shall ascertain the compensation to be paid for the taking of the plant and property of the public utility,  which shall include the fair and equitable value of such plant and property,  including its value as a going concern,  and the actual and consequential damages,  if any,  sustained by the public utility by reason of the severance from the other plant and property of the public utility of the plant and property to be taken. Compensation and damages shall be fixed as of the date of the commencement of the trial at which such compensation and damages are finally determined.
C. Any party of the action may appeal to the supreme court in the same manner as is provided for appeals in other civil actions by filing a notice of appeal with the superior court within thirty days from the entry of the judgment or order appealed from and posting a bond for costs. Any such appeal to the supreme court shall be preferred and shall be heard and determined in preference to other civil matters,  except election actions,  habeas corpus,  quo warranto,  mandamus,  injunction and other extraordinary writs to state officers and inferior courts of which the supreme court has original jurisdiction.
D. Within six months after the date when the judgment has become final following an appeal,  or within six months after the expiration of the time allowed by this section for appeal if no appeal is taken,  the city or town shall pay into court the amount fixed by the judgment for the use of the public utility and such other persons as the judgment may provide. The public utility and such other persons as the judgment may provide who are entitled to the money paid into court may demand and receive the money at any time after its deposit upon filing a satisfaction of the judgment or a receipt for the money. If the city or town fails or refuses to pay the amount of the judgment into court within such period of six months,  the court shall vacate the judgment and enter judgment dismissing the complaint and taxing costs in favor of the defendants in the action,  including in such event a reasonable allowance for engineering costs and expert witness fees.
E. Within thirty days after the date when the judgment becomes final following an appeal,  or within thirty days after the expiration of the time allowed for appeal if no appeal is taken,  the public utility shall file with the court a report,  verified under oath,  of the amounts actually expended by it for additions,  betterments,  improvements and extensions which it has been required to make between the date of the commencement of trial and the date of such report,  together with an estimated forecast of the amounts it will be required to make for the public convenience and necessity during the ensuing six months. Thereafter,  and until the expiration of the time provided for the payment by the city or town of the amount of the judgment into court,  the public utility shall every thirty days file with the court a verified supplemental report of the amounts it has actually expended for such purposes since the date of the initial report. Such reports may be considered by the court in determining the amount of the deposit to be made or bond to be posted by the city or town as provided by subsection F,  and may be considered at the trial provided by subsection I but shall not be conclusive of the amount to be ascertained as the compensation to be paid by the city or town for such additions,  betterments,  improvements and extensions.
F. Upon payment of the amount of the judgment into court within the time provided,  the city or town shall make application to the court for an order permitting it to take possession of,  and use and operate the plant and property of the public utility,  including the additions,  betterments,  improvements and extensions for the public convenience and necessity which the public utility has been or will be required to make between the date of the commencement of the trial and the date of taking possession thereof by the city or town. Upon filing the application a time shall be fixed by the court for a hearing to determine the probable fair and equitable value of such additions,  betterments,  improvements and extensions,  and written notice of such hearing shall be given to the public utility and other defendants,  if any,  at least ten days prior to the date fixed,  by service of a copy of such notice in such manner as the court directs. On the day fixed for the hearing,  the court shall determine the probable value of the additions,  betterments,  improvements and extensions which the public utility has been required to make since the date of the commencement of the trial,  and shall direct that upon deposit of money,  or the posting of a bond with good and sufficient sureties,  in the amount so determined,  the city or town shall be let into the possession and full use of the plant and property of the public utility described in the judgment,  together with the additions,  betterments,  improvements and extensions made since the date of commencement of the trial. Upon deposit of the money or the posting of a bond in the required amount,  the city or town may go into the possession and full use of the plant and property of the public utility,  described in the judgment,  together with the additions,  betterments,  improvements and extensions referred to in the order of the court. No appeal may be taken from an order of the court determining the amount of the deposit to be made or the bond to be posted by the city or town.
G. The parties may stipulate as to the amount of the deposit or of the bond in lieu of the deposit;  but such stipulation or evidence of such deposit or of the bond shall not be introduced in evidence or used to the prejudice of any party to the action.
H. At the hearing to fix the probable value of the additions,  betterments,  improvements and extensions,  the court shall direct the parties to file such supplemental pleadings as the court may deem necessary to set forth the claims of the public utility with respect to such value and the response of the city or town thereto,  shall fix the time within which such pleadings should be filed,  and shall set the matter for trial before the court or a jury for the purpose of ascertaining the compensation to be paid for the additions,  betterments,  improvements and extensions required to be made by the public utility between the date of commencement of the trial and the date the city or town is let into possession of the public utility's plant and property.
I. The court or jury shall ascertain the compensation to be paid for additions,  betterments,  improvements and extensions,  which shall be the fair and equitable value thereof as of the date the city or town took possession of the public utility plant and property,  and the amount so determined shall draw interest at the legal rate from such date. In fixing such value such additions,  betterments,  improvements and extensions shall not be considered or treated as being severed from the plant and property included in the judgment theretofore entered. Such additions,  betterments,  improvements or extensions shall be deemed to have been made for the public convenience and necessity,  if such additions,  betterments,  improvements or extensions are found by the court to have been reasonably necessary and prudently made as incidental capital expense in the ordinary and usual conduct of a public utility business,  or if the additions,  betterments,  improvements or extensions were ordered to be made by the corporation commission. Upon such value being determined a supplemental judgment shall be entered therefor,  from which any party to the action may appeal to the supreme court in the same manner and within the same time as is provided for appeals from the judgment in the action,  except that any asserted grounds for appeal shall be limited to those arising in the proceeding to fix the compensation to be paid for the betterments,  additions,  improvements and extensions.
J. Within ninety days after the date said supplemental judgment has become final following an appeal,  or within ninety days after the expiration of the time allowed for appeal if no appeal is taken,  the city or town shall pay into court all amounts fixed by the supplemental judgment for the use of the public utility and such other persons as the supplemental judgment shall provide,  less any amount theretofore deposited with the court if such amount be less than the supplemental judgment. If the city or town shall have posted a bond,  all amounts provided by the supplemental judgment shall be paid into court and the bond exonerated. The public utility and such other persons as the supplemental judgment may provide may demand and receive from the money deposited the amount of the supplemental judgment with interest and costs,  if any.
K. If the complaint of the city or town is dismissed as provided by subsection D,  no action in court to acquire or take the same plant and property of the public utility,  or any portion thereof,  shall be instituted by the city or town within three years after such dismissal.
L. All proceedings and trials provided by this section shall be preferred and shall be heard and determined in preference to other civil matters,  except election actions.
M. The provisions of this section for ascertaining and assessing compensation for the taking of the plant and property of a public utility and the obtaining of possession and use of such property by a city or town are intended to be remedial.