|BILL AS INTRODUCED||2007-2008|
Introduced by Representatives Kitzmiller of Montpelier and Shand of Weathersfield
Subject: Public service; regulation of corporations; utilities; easements; prescriptive rights
Statement of purpose: This bill proposes to develop a process under which a utility may obtain the right to an easement for maintaining utility poles, wires, and other apparatus where such poles, wires, and other apparatus have been constructed and are in place.
AN ACT RELATING TO UTILITY PRESCRIPTIVE RIGHTS
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. TITLE
This act shall be referred to as the Utility Prescriptive Rights Act of 2008.
Sec. 2. LEGISLATIVE FINDINGS
The general assembly finds:
(1) There are currently many instances where the distribution utilities in Vermont maintain and operate utility lines in rights-of-way without having any record of an easement or other right to occupy such rights-of-way.
(2) In some instances, the easement was not obtained when the line was initially constructed; in other instances, the easement document was lost or never recorded in the land records.
(3) Such utility lines often existed in their current location without written easements for many years, even decades.
(4) Vermont law generally recognizes that one may obtain property rights, including easements and rights-of-way, by adverse possession after 15 years of open, notorious, and hostile possession of the property; however, a single Vermont statute creates an exception to that doctrine for utility line easements.
(5) Many of the utility lines which lack easements are old and will need to be rebuilt in order for the distribution utilities to continue to provide reliable service.
(6) It is likely that such necessary upgrades will be delayed if the distribution utilities must go through individual and costly public service board condemnation proceedings in order to obtain easements where none exists today.
(7) Where a line is already in place, it is poor public policy to allow a landowner to impede necessary upgrades of the line, and impose expense on remaining customers, by forcing the utility to commence a condemnation proceeding to obtain an easement.
(8) There is clearly a need for distribution utilities to hold easements over rights-of-way where utility lines have already been built.
(9) Given the physical visibility of lines, a property owner who acquired property by any means over which a utility line had been constructed, gained the economic benefit of any diminution in the property’s value caused by the existence of the utility line. Therefore, in any proceeding to determine just compensation, the public service board may conclude, in the absence of evidence to the contrary, that the property owner has already been compensated for any diminution in value caused by the existence of the utility line.
Sec. 3. 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 utility line is in place as of July 1, 2008, there is a rebuttable presumption that the condemnation of the property right is necessary in order that the petitioner may render service to the public.
(b) When a corporation seeks to condemn property or establish an easement or other right over property where a utility line is in place as of
July 1, 2008, 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 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. Parties served or appearing in the proceeding shall file an answer within 20 days of receiving the petition in accordance with the Vermont Rules of Civil Procedure. The corporation may seek and the board may grant a default judgment order on necessity and compensation with respect to any party who fails to file an answer.
(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, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information and continuing operation and maintenance of any lines in place.
(d) The board shall fix the time and the place for hearing, which shall be held at the board absent good cause shown.
(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 the necessity requires the taking of the land and rights as set forth in the petition.
(i) At any point, including upon filing the petition, the petitioner may move for an order of immediate possession. If the board determines that the taking is necessary, it may hold a hearing and shall determine an amount the petitioner must post in the form of a bond or other method of payment in an amount sufficient to pay the sum that may ultimately be awarded as compensation and damages for the taking. Upon depositing such sum as the board requires, the board shall authorize the petitioner to use and enjoy such property or right during the pendency and until the final conclusion of such proceeding. Title to the condemned property or right shall automatically vest with the petitioner.
(j) Following a determination of necessity pursuant to subsection (h) of this section, the board shall appoint a time and place in the county where the land is situated for examining the premises and provide an opportunity for a hearing, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.
(k) Damages resulting from 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. Where a property owner acquired the property with the utility line already in place, the board may presume that the diminution in value was reflected in the terms of acquiring the property.
(l) Within 45 days after the hearing, the board shall fix the compensation to be paid to each person from whom land or rights are taken, and the petitioner shall file and record within 30 days the order in the office of the clerk of the town where the land is situated, and shall deliver to each person or persons a copy of that portion of the order directly affecting the person or persons and shall pay or tender the award to each person entitled which may be accepted, retained, and disposed of to his or her own use without prejudice to the person’s right of appeal. If the petitioner took early possession of the condemned property under subsection (j) of this section and deposited an amount of money with the board, the board or petitioner shall tender the amount of the board’s award to the persons affected by the taking. The petitioner shall tender any additional payment required by the board’s final compensation order, and shall receive back from the board any funds exceeding the amount of the award.
(m) Section 112 of this title does not apply to petitions filed under 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.
Sec. 4. REPEAL
30 V.S.A. § 2519 is repealed.
The Vermont General Assembly
115 State Street