Committee hears bill to require electric utilities to pay landowners’ attorney fees in certain eminent‑domain appeals

The Senate Judiciary Committee held a hearing on Senate Bill 61, a measure that would make it mandatory for a court to award a landowner attorney fees when an electric public utility appeals an appraiser’s award in an eminent-domain action and a jury subsequently returns a verdict greater than the appraisers’ award.

Reviser (statutory briefing): "Senate Bill 61 relates to eminent domain law. The bill amends K.S.A. 26-509. Current law provides the court may award attorney fees when a condemning authority appeals and a jury returns a verdict for the landowner greater than the appraisers’ award. This bill would require the court to award attorney fees when the plaintiff is an electric public utility and either party appeals and the jury verdict exceeds the appraisers’ award."

Proponents representing landowner interests told the committee the bill responds to mounting transmission development and the financial strain on rural property owners who must defend appraisals. Wendy Grady, assistant general counsel and director of the legal foundation at the Kansas Farm Bureau, said the cost of retaining counsel can put landowners at a disadvantage. "From the initial offer ... there was a growth of 10 times in the amount that was originally offered to them," Grady said of one example. "Just to get through the phase of the appraisers’ award, it has cost our member almost $90,000 in attorney's fees." Grady and the Kansas Farm Bureau said they also would support an amendment to increase notice to landowners — for example, providing notice 60 days before a condemnation petition is filed and an additional notice 30 days before the petition is filed regarding offers and negotiations.

Aaron Popelka, vice president for government affairs at the Kansas Livestock Association, framed the bill as protecting family farms and ranches, saying farm and ranch land comprises a large share of Kansas acreage and that some transmission companies seeking eminent-domain authority operate to export power rather than serve local ratepayers.

Opponents included Dave Peck, director of project management for Evergy, speaking for Evergy and several transmission companies and municipal utilities. Peck said utilities make extensive efforts to negotiate easements and that condemnation is a last resort. He described internal controls at utilities that limit the use of eminent domain and said his company targets roughly 90% of easement acquisitions through negotiation without filing condemnation petitions. Peck cautioned that making fee awards mandatory for electric utilities could remove a deterrent to appeals and encourage additional litigation.

Committee members asked several recurring questions: whether mandatory awards would shift costs to utility ratepayers, why the bill singled out electric utilities rather than all entities with eminent-domain authority, and whether replacing the bill’s proposed "shall" with a judicially discretionary "may" for landowner appeals would reduce concerns about incentivizing appeals. Proponents said the measure targets electric transmission because of recent and anticipated transmission growth in the state; opponents said other entities also use eminent domain and urged caution.

No committee vote on Senate Bill 61 occurred at the hearing; the committee closed public testimony after proponents and opponents presented and questioners sought data. Committee staff and proponents agreed to gather additional factual information requested by senators, including frequency of appeals, typical attorney-fee amounts, and counts of condemnation actions statewide.

Votes or formal action were not taken on SB 61 at the hearing.