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House | March 25, 2015 | Committee Room | House Judiciary IV

Full MP3 Audio File

You're ready? Right. [xx] go ahead and cast the order and we'll have one day that we'll have from discussion today and want to make sure we get through it because I know, [xx] commence meeting at 11. Let me first thank and have Sergeant at Arms Carlton, Adams Martha, and Jeff for starting with today I think we have a couple of pages with us, pages, are you here, D. I. Hajj, thank you. Christian Jenkins and Nia[sp?] Jenkins, you guys are brothers and sisters back there. Glad to have you guys, thanks for Senators, you guys have a fun week. We've got two bills on the agenda today, I'm going to switch the order of them awaiting to get the PCS back last night on house bill 127 which we discussed last week, so we're going to start with house bill 12 on the guest in foster care, I'm buzzed in program and Representative Folavit is going to take care of the hosts. Thank you Mr. Chairman, Good morning co members of the committee. Ladies and gentlemen two years ago I brought before our body a pilot program. If you want to think of it, that provided an abashment for foster parents in Gaston County. The genesis of this was in dealing with a large part to a couple of events that were happening against the county relative to children and relating the foster parents, in my findings I felt somewhat concerned that, I'm not going to say it's everyday but there are occasions where it appeared that the folks working for DSS, the wonderful work day in and day out, but the foster parents as it was so to me were looked more as vendors. That bothered me for some reason because as many of you probably know foster parents and I know foster parents, they give a lot of love and a lot of time, a lot of dollars to help children become, just really good kids without the fact that they are growing up without their parents, so I thought the parents would have a little bit more representation. We came upon and created an abatchment that speaks at the table on behalf of foster parents. And they've been operating under this scenario for about the last 2 years now, and I'm simply here today to have it continue on, remove the title of pilot program and just become and everyday account in the county of Gaston. We work with county commission, they are in agreement, we work with DSS, from what I understand their was a concern there in the [xx] program were their was an extensive attorney fee, when some felt the attorney weren't really the only thing they were simply I don't know the term but I thinks it's safe on retainer for example, and so pretty much takes modify that a little bit to the point that they are paid when they're actually needed that type of work other nuts Mr. Chair I hope the committee can support this it's has been a two year program and I pretty much report good finding I've talked to the foster parents, and they seem to be very, very happy that they have this opportunity to have some speak on their behalf and I will end with this at no time, at no time and I've stressed this time and time again that their's an on judgment ever take the place of the primary door of doing the best that we humanly can for that child, so with that I'll take any questions. Thank you Representative I would love to have a motion to have the PCS properly before us. Thank you Representative Hugh, you also have a question. Alright and let me say that the motion Thank you for the second and all those in favor of the PCS property force please say aye. Aye Thank you. Representative Hagen. There were no DLTPs in this bill. Thanks Representative Hugh.

Representative Richardson. county of that part or will it be a cost to the foster parents? The [xx] services? [xx] this cost is more about accounting Representative Morgan do you have a question? [xx] [xx] Representative Blackwell? [xx] represent [xx]. In other words this program doesn't represent [xx]. That is correct Mr. Chairman, if I also might answer, and at no time would there be an intent in any bill to hide any [xx] and unless specifically noticed on a bill. That's good to know Any further discussion? If not, I will take a motion from Representative Hagan [xx] [xx] I have motion before you, all those in favor say Aye Aye, any oppose? alright, thank you. The next bill we have before us is article 127 which we had for discussion only last week and you should be getting passed out. I think we sent the PCS out last night. I think that an amendment is also being passed out, but I would love to have a motion that [xx] PCS paper report all those in favor please say I I Alright the PCS is [xx] into force. Do you want to [xx]. I'm going to have [xx] who's going to explain the PCS Can I get [xx] Okay. Got it Committee, thank you for letting us be here, Representative Jackson, and I guess Representative [xx] you'd be here anyway. So, after the meeting the other day, I did have a good long meeting with Chief Deputy for VOT Nick Petersons is here, and also the representatives from legal municipalities, who I don't see, but I don't have my glasses on if she's here, and the PCS which I'll explain resulted from some of those disgressions [xx] their concerns, and then I received more suggestions from the IP yesterday about 5 o'clock and it just [xx] in time to get the PCS, and I want to explain it together because, although I'm certainly not saying the DEP is neutral or flexible I think they do like their number and I'd like to explain [xx] the PCS just to say see what we've done. first of all, in Section one if you remember the nature of damages the initial blow would have had if use 40a which the city county Duke Energy measure damages for DOT. DOT has suggested that we take all that out, and make a one would change in their initial damages which is in the amendment which I hope that some of the upper and encrypted program may well be able to do that. So what it does, is that it takes the word with to make it without so that when property is taken there's no possibility that they'll get 20 acres for zero dollars so that actual change was suggested by DOT. Then in section two, pay interest until the judgement is payed we still have that in the bill, DOT still has administrative issues with that. If they can come up later in the process, this bill does go to appropriations. If they can come up with a acceptable warning on that, I would be glad to look at it I mean the principal is the people. Actually I think it's constitutionally required under federal constitution that you have to pay interest on judgements for this but the mechanism is not agreed to. so that is not changed. Section three, we make through changes and if you look at the amendment it includes both the PCS change and the new amendment. If you recall this is the one circumstance where property

owner can get a fees remember they are never made whole so this just makes them the possibility of making themselves less unwhole, but the criteria was 25% depots between the initial deposit and the boarding, the Jody boarding closet. Okay, you got that? While the force change, [xx] at a quite proportion. You may early on in a condemnation show us where we're in error in our instructions and provide that to us. And we made this tried to make an additional deposit and if the additional deposit made the landowner get to get that money. so the first change is to say that in deciding whether there is a 25% discrepancy, we will also include additional deposits made at least six months before trial. In other words, if the property owner has access to the money well before trial that 25% won't apply to that part. The final concern that they raised was that before they go to trial they really need to know what your position is. We may not have thought of certain things, so we've added a sentence, and this is new in the amendment, proposed amendment line 26 - 30, that basically tells that the judge, in deciding what is a reasonable attorney's fees, shall consider the extent to which the party has provided the other party, this goes both ways, in advance of the trial the written appraisal reports of those witnesses testifying at trial. In other words, this would keep DOT from being sandbagged, or the land owner from being sandbagged by the DOT with some new theory that they hadn't thought about. Does that would like to weigh all actual reasonable voice please. Mr chairman. Representative Tuar, would it be appropriate to go ahead and have the amendment run this week. I appreciate that, let's fining. I have put enforcement, I want the motion to have, it is important to have the amendment for the force ahead of events say I. I. Any oppose? In image property before us. And the final thing the amendment does is strike section four from the bill that related to partial control of access in discussing this with my experts they decided it's sort of a destruction from the bill because, despite the fact that DOT may not be imported in it correctly that has couple of 2 to 3 years, the law is still what it is, and that we are all entitled to compensation for control of access it just hadn't [xx] that's what the amendment would do, and I hope you all support me with the amendment and the bill. Mr. Chairman? Representative [xx] what  motion? Move the amendment bill. Okay. Any discussion about the amendment for Yes, Representative [xx] [xx] yes sir! Right! [xx] Yes I'll give it a an example enough, sure case I had two years ago, although it's not a road case but it's a sure case. [xx] so 23 acres for my client. Okay, if that had been a DOT my client would have gotten zero, because the jury decided that the other 80 acres, made up of, just as able as you had before, so you have the phenomenon whether the jury was right, I think the jury was completely wrong. But the jury speaks, but without that word it allowed else the State of North Carolina to take property and pay nothing. Representative Tigger Fall.   [xx] right correct, just what we state. Chairman Rocker. Question from Representative Stein on the same section. Representative [xx] [xx] Without the amendment your PCS with the same damages will be extravanded[sp?] in 48 days, [xx], 64. I think it's still one of those governed [xx] Right. Well for [xx] county

or [xx] now instead of going by that, the new amendment reached the current section of the place the changes as result of the fact, as a result of your amendment, we' ll then damages be determined differently or DOT then produce energy or [xx] county or others and if so what is the differences it's mapping and now be about the same. This accomplishes what we were doing, and to do before, that in the most straight forward way and without messing up 40 as many words. What's the principle laws simplicity is there, they kind of low, it's a the simplest solution is usually the best, yes, so that's why originally we had a concluded solution to it and DOT is this particular changes at the suggestion of Mr. Tenason. And I agree with him, that's a simpler, straight forward way doing it. Alright. Any further discussion of the amendment, right here, none, all those in favor for sitting say I I Any opponents [xx]. We can now discuss the thought, and I thought that we may have some public members, I don't know what the body would prefer to averse from many members of the public there will be help or not, and give me a little hand here if you'd like to here from the public fast, or we rather discuss first and then we add a couple files. Well, let's just discuss and then I will call on the members of the public after we have some discussions. If it anything discussion [xx] to your speak on the bill and please tell your name for the record so we can take in. Thank you. My name is Nick Tennyson. I'm Chief Deputy Executive, NCDOT. And as an this broadcast I appreciate the use of microphone for those asking questions it makes it a lot easie, when we are listening, as representative Stern has described, we suggest the changes that we thought will make the statue easier to execute if it's passed, but we still have the underlying disagreements over the need for this change to give you some figures 3100 actions were initiated to acquire property about 16.5% of those had to go to a formal condemnation proceeding, 17 of those ended up in trial. we believe that especially during that period between the condemnation action and the actual trial, we've got plenty of capability to resolve the disputes and those who settle do so with the advantages that they would not have achieved if we were as dedicated to hard balling people and low balling people as appears to be the assumption. The department is interested in achieving what the law has in mind the basic law which is provision of public services with awareness that the two parties involved, the private land owner and the people of North Carolina's interest both have to be considered so when we offered the change of the without, with without in that first clause it was to preserve the judicial record that built up over time and not have to shift to a new chapter in the law and to make sure that we offered a suggestion that would meet the underlying purpose that Representative Storman  and the others sponsors of the bill had but again without conceding the assumption because again speaking of the overall philosophy from our perspective. If the public is making a substantial investment whether it's the delivery of a sewer line that now serves the property or whether it's a very expensive transportation facility that now serves the property that results in the remainder of property being more valuable than the total track o us in the precondition and we think that's a reasonable thing to take into account and we

think that therefore the state investments should be recognized but again that's said without attempting to express an opinion that would go back on anything that we may have said or Mr. Stomp because it is a consistent position we've taken. Likewise, our concern over change on the attorneys fees is a question of whether we're going to go from 16.5% of the persons having to go through a formal trial to substantially greater number as a result of attorneys being able to [xx] public record, because it's out there if who we have offered a property to, [xx] are asked to but the property Toney is being able to find those documents, seek clients otherwise they will not be able to condense to enter into a risk situation with would be [xx] and there is no risk that the state is going to pay my fees so that underlying concern it's what motivates me to be here today again we really appreciate the time that the representatives have put in with us in meetings to discuss the technical details and look forward to continue in that relationship, next, thanks [xx] any questions for [xx] a point on representative's stand, sure. Understand that Miss [xx]  brings in some interesting points do you see this number one as a job build for attorney, number two do I expect to see, do I expect to see tv commercial saying hey do you think DOD treated you wrong then call 1800. Thank you Mr. Chairman. Its a valid concern what people understand or maybe don't understand is that every nickel that BOP pays out to support their case, or their position doesn't come from some  mystical rain cloud of money, or money tree, it comes from taxpayers as well. Right I agree with that and I'm a supporter of a dish out, I'm a supporter of additional bonds of highway construction. I just want landowners to be treated fairly in my opinion as a person who is [xx] date is the cases filed after July one of 16 so this actually will take effect about attorneys fees like in 17, or 18 and 19 OK and in which time I hope to be long retired at my advanced age, but in my opinion this actually cuts down on the need for attorneys, see the attorneys they'll get paid any way because the ones who do this almost always do it based upon the difference between the initial deposit, and the final settlement, so they'll have that anyway they can make that same advertisement today, this just is the need category of cases were they've been as amended so we're talking about the full deposit not just the initial deposit were they've really been low balled, and land owners are never made whole in a condemnation case by definition. This just reduces the size of the hole as we plus last week, it reduces the size of the hole and fewer land owners will have the need to go to an attorney under this bill. Representative Adams. Thank you please I'm sorry I've got to remind you please turn your green button on. Yeah I'm also interested in the land owners involved in condemnations, and I'm looking at the brief on page two tropical pages talks about being entitled compensation to the taking of, or injury to their easements of access, and I'm familiar with the placement of accessing units of how extensive that prevent access and property of but there's another problem that I've observed over the years and that it's the placement of medium device that restrict the businesses access to write find out and sometimes those are excessive I can

think of examples where this was done the business was ultimately terminated and the effect of the gradient divider is negligible, so I'd like to see a that could be addressed as well. This bill does not address that, but it illustrates, why the land owners almost never make completely whole because that's a regular [xx] taking that can have a huge impact on a business, but is non comprehensible. And if I thought we had the horses to include that in that I don't have a cross memo on that about to see what that would do but that should be done, whether in this bill or another bill I just Upload. I make that comment understanding the it's probably beyond the scope for this bill but my message to DOT is that if you misbehave and you abuse your powers, these are the sort of replies you're going to get. I've seen abuses in the past and I hate to do the some of things that the peers we're going to have to do Further discussion. Representative Johnson. Miss Tennyson's recognized. We feel pretty confident that this doesn't fully protect the tax payers. Nick Tennyson, NCDOT the opinion that I've expressed is that we will have more litigation as a result and I am basing that on my assumptions about human nature and the preciseness of being able to say that somebody else is going to be taking care of the fees. the fundamental challenge that we've got here is that we are restricted to making a fair market offer, fair market value, and in this case there is not necessarily either a willing buyer or a willing seller that we're talking about because we're building the roads because we need to build the road the seller isn't necessarily desiring to sell it and so we start out with a fair market value that does not represent what ultimately people may judge to be damages that are due one of their fellow citizens for condemnation. Follow up. And I'm not here to try to paint noise landing obviously I'm not going to forget that. What I'm concerned about is making sure there is someone of amount, never going to be equal, never, but sometimes [xx] and we don't want this to be a piggy bank I think so much [xx] thirties[sp?], to make money on the backs of citizens of North Carolina. I would say that I agree with representative Stan, that my hope especially this in life of the changes we've made in talking to DOT would actually help discourage mitigation and when we game, we look at this language in the amendment, we say when concerning with what are traits this are reasonable judge considering to the support please provide the other party in advance of the trial the written appraisal reports of those witnesses testifying at the trial. We try to put in information to make sure there is good dialogue on the front end trying to get that deposit number, [xx] reasonable and hopefully it is good discussion that's going to prevent litigation, that would be, I think I speak for the sponsors of the bill in saying that. Representative [xx] take this economy and on this note what we come down here for or at least what I came down here for was really not to protect rights and mistakes of people, but protect people's rights from the state. One of the most fundamental rights we have is stability on [xx] and that we stimulate growth in life has been one of the most fundamental primary rights to this country when we started, and so what I believe this bill does is push the [xx] are we serious about this project well think about this before we go because there are some hoops we've got to jump off to make sure we protect home owners from [xx] land owners. [xx] provided to protect the lifes available its the right time Mr. [xx] I'd like to pull[sp?] the motion Any further discussion? Alright, [xx] Representative [xx] you're recognized. I move for a favourable PCS perhaps

the 127 as demanded, rolled into another PCS in central progression wow, very impressive you hear the [xx] any further discussion. [xx] Okay let me turn to that [xx] all those in favor of the motion, please say I I Any opposed. The Is have it and the vote is passed and referred to We are adjourned. What this about