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BILL AS PASSED BY HOUSE 2007-2008

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H.689

AN ACT RELATING TO UTILITY PRESCRIPTIVE RIGHTS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  30 V.S.A. § 111a is added to read:

§ 111a.  PREEXISTING UTILITY LINES

(a)  When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less that has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not (1) significantly alter the capabilities or capacity of the line or lines, (2) materially alter the degree of land use associated with the presence of the line or lines, and (3) authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title. 

(b)  When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the public service board and to the department of public service describing the property or right, and why the action is necessary.  The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) above.  The board shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the supreme court may by rule provide for service of process in civil actions, including by publication. 

(c)  Upon the filing of the petition with the board and department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the board, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.

(d)  The board shall fix the time and the place for hearing.

(e)  If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the board to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.

(f)  A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking.  The stipulation shall be filed with the board.  The board shall issue an order on necessity within 45 days upon receiving the stipulation.

(g)  A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments.  The stipulation shall include the following:

(1)  a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and

(2)  an explanation of the legal and property rights affected.

(h)  If a hearing is required, the board shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing.  The board shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.

(i)  Following a determination of necessity pursuant to subsection (f) or (h) of this section, the board shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.

(j)  There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the board and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property.  Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the board shall determine compensation pursuant to subdivision 112(3) of this title.

(k)(1)  When the board renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within thirty days thereafter, a certified copy of such judgment.  If the judgment is in favor of the petitioner, the board, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned.  The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk’s office of the town or towns in which such property is located, within thirty days after such copies are received by him.

(2)  Upon the payment or deposit of the amounts awarded by the board, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings.  However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the supreme court is complied with.

(l)  Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section.  An appeal or review relating to an action under this section shall be to the supreme court pursuant to section 12 of this title.

(m)  The presumptions arising under subsections (a) and (j) of this sections shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a).  These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.

(n)  Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us