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Journal of the House

________________

FRIDAY, APRIL 11, 2008

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Reverend Michael Rake of good News Baptist Church, Northfield, VT.

Bill Referred to Committee on Ways and Means

S. 233

Senate bill, entitled

An act relating to temporary officiants for marriages and civil unions;

     Appearing on the Calendar, affecting the revenue of the state, under the rule, was referred to the committee on Ways and Means.

Joint Resolution Adopted in Concurrence

J.R.S. 62

Joint resolution, entitled

Joint resolution relating to weekend adjournment;

     By Senator Shumlin,

Resolved by the Senate and House of Representatives:

That when the two Houses adjourn on Friday, April 11, 2008, it be to meet again no later than Tuesday, April 15, 2008.

Was taken up read and adopted in concurrence.

Committee Relieved of Consideration

and Bill Committed to Other Committee

S. 344

Rep. Head of South Burlington moved that the committee on General, Housing and Military Affairs be relieved of Senate bill, entitled

An act relating to internet and mail order sales of tobacco products;

And that the bill be committed to the committee on Human Services, which was agreed to.

Committee Relieved of Consideration

and House Resolution Placed on Calendar for Notice

H.R. 33

Rep. Wright of Burlington moved that the Committee on General, Housing and Military Affairs be relieved of House resolution entitled

House resolution expressing strong opposition to and urging effective and immediate congressional action to stop human rights violations by the government of the People’s Republic of china’s human rights violations in the geographic area known as Tibet;

Which was agreed to.  Thereupon, under the rule, the bill was placed on the Calendar for notice tomorrow.

Bill Amended; Third Reading Ordered

H. 689

Rep. Shand of Weathersfield, for the committee on Commerce, to which had been referred House bill, entitled

An act relating to utility prescriptive rights;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  TITLE

This act may 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 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 utilities to continue to provide reliable service. 

(6)  It is likely that such necessary rebuilding will be delayed if the 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 rebuilding 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 utilities to hold easements over rights‑of‑way where utility lines have already been built. 

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 currently existing utility line, that has not been abandoned, was in place on July 1, 2008, 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 the replacement of the existing utility facilities with equivalent facilities in the usual course of business.

(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, 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 property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines and the replacement of the existing utility facilities with equivalent facilities in the usual course of business.  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)  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.  Where a property owner acquired the property with the utility line already in place, there is a rebuttable presumption that the diminution in value was reflected in the terms of acquiring the property.

(k)  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 possession of the condemned property under subsection (i) of this section,  the 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. 

(l)  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.

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

The bill, having appeared on the Calendar one day for notice, was taken up and read the second time.

Thereupon, Rep. Shand of Weathersfield asked and was granted leave of the House to withdraw the report of the committee on Commerce.

Pending the question, Shall the bill be read the third time? Rep. Jewett of Ripton moved to amend the bill as follows:

     By striking all after the enacting clause and inserting in lieu thereof the following:

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.

Which was agreed to and third reading of the bill was ordered.

Bill Amended, Read Third Time and Passed

H. 755

House bill, entitled

An act relating to economic development of the forestry and forest products industries;

Was taken up and pending third reading of the bill, Rep. Bray of New Haven moved to amend the bill as follows:

First: In Sec. 2, in §2721 (c), by striking the word “and” at the end of subdivision (3); striking the period and inserting “; and” at the end of subdivision (4); and adding a new subdivision (5) to read:

(5) a listing of individuals, trade associations and other persons or entities consulted in preparation of the report.

     Second:  In Sec. 3, in the first sentence, by striking the words “in consultation with the Vermont sustainable jobs fund, the Vermont Woodlands Association, the Associated Industries of Vermont, and the Vermont Loggers Association” and inserting in lieu thereof the following: “in consultation with Vermont timber harvesters, foresters, and forest products manufacturers, their respective trade associations; the Vermont Sustainable Jobs Fund; and others

Which was agreed to.  Thereupon, the bill was read the third time and passed.

Third Reading; Bill Passed in Concurrence

with Proposal of Amendment

S. 146

Senate bill, entitled

An act relating to advertising and producing musical performance;

Was taken up, read the third time and passed in concurrence with proposal of amendment.

 

 

Bill Amended; Third Reading Ordered

H. 736

Rep. Browning of Arlington, for the committee on Corrections and Institutions, to which had been referred House bill, entitled

An act relating to children of incarcerated parents;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  CORRECTIONS OVERSIGHT COMMITTEE; CHILDREN OF INCARCERATED PARENTS; REPORT

(a)  During the summer and fall of 2008, the corrections oversight committee shall spend at least one meeting investigating issues regarding minor children of incarcerated parents.  The investigation shall include:

(1)  A report from the commissioner of corrections on data on the prevalence of inmates who are parents of minor children.

(2)  Identification of mail, telephone, and visiting policies that promote appropriate family contact.

(3)  Current practices and appropriate training for law enforcement officers regarding behavior and protocols when arresting parents who are responsible for or might be responsible for minor children.

(4)  A report from the secretary of human services on how to provide appropriate support and assistance to the children of incarcerated parents.                                                                                                                                     

(b)  The committee shall make recommendations regarding:

(1)  Ways to increase and improve appropriate contact between minor children and their incarcerated parents.

(2)  Data to be collected to enable the general assembly to understand the impact of incarceration of parents on minor children and to help policy makers access resources and formulate solutions.  The committee shall also make recommendations on how the data will be collected.

(3)  Appropriate training for law enforcement officers regarding behavior and protocols when arresting parents who are responsible for or might be responsible for minor children.

(4)  Cost estimates of resources needed to make recommended changes.

(5)  Appropriate support and assistance to the children of incarcerated parents using existing resources, programs, and staff of the agency of human services.

(c)  The committee shall report its findings and recommendations on or before January 15, 2009. 

Sec. 2.  2 V.S.A. § 801(d) is amended to read:

(d)  When the general assembly is in session, the committee shall meet at the call of the chair.  The committee may meet four six times during adjournment, and may meet more often subject to approval of the speaker of

Rep. Acinapura of Brandon, for the committee on Appropriations, recommends the bill ought to pass when amended as recommended by the committee on Corrections and Institutions and when further amended as follows:

First:  In Sec. 1(a) by striking the words “spend at least one meeting investigating” and inserting in lieu thereof “investigate

Second:  In Sec. 1(a)(1) before the period by inserting “including the number of inmates who are primary caregivers of minor children

Third:  In Sec. 1(c) following the word “recommendations” by inserting “to the general assembly

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committees on Corrections and Institutions and Appropriations agreed to and third reading ordered.

Action on Bill Postponed

H. 894

House bill, entitled

An act relating to approval of amendments to the charter of the town of Windsor;

Was taken up and pending the reading of the report of the committee on Government Operations, on motion of Rep. Sweaney of Windsor, action on the bill was postponed until Tuesday, April 15, 2008.

Senate Proposal of Amendment Concurred in

H. 616

     The Senate proposed to the House to amend House bill, entitled

     An act relating to farm-fresh milk;

     By adding two new sections, to be Secs. 2 and 3, to read as follows:

Sec. 2.  6 V.S.A. § 2672(26) and (27) are added to read:

(26)  “Vermont fresh milk” means milk consisting entirely of fresh milk produced in Vermont.

(27)  “Northeastern fresh milk” means milk consisting entirely of fresh milk produced in Delaware, Maryland, New Jersey, Pennsylvania, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, or Maine.

Sec. 3.  6 V.S.A. § 2680 is added to read:

§ 2680.  LABELING MILK AS FRESH

Milk shall not be labeled as “fresh milk,” “Vermont fresh milk,” or “northeastern fresh milk” unless the milk meets the definitions in section 2672 of this chapter.

and by renumbering the remaining section to be numerically correct

and that upon passage the title be amended to read:  “AN ACT RELATING TO FARM‑FRESH RAW MILK”

     Which proposal of amendment was considered and concurred in.

Message from the Senate No. 53

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

     I am directed to inform the House that the Senate has considered a bill originating in the House of the following title:

H. 775.  An act relating to low-profit limited liability companies.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the House is requested.

     The Senate has on its part adopted Senate concurrent resolutions of the following titles:

     S.C.R. 42.  Senate concurrent resolution recognizing Vermont Uniform Law Commissioner Carl Lisman for his continuing assistance to the general assembly.

     S.C.R. 43.  Senate concurrent resolution congratulating the Bethany Church-United Church of Christ of Montpelier on its bicentennial anniversary.

     S.C.R. 44.  Senate concurrent resolution honoring Margaret Trautz for her exemplary career contributions to the advancement of public policy in the areas of education, health and social welfare..

     S.C.R. 45.  Senate concurrent resolution congratulating Elwin Cross on being named the 2008 Northeast Kingdom Chamber of Commerce Citizen of the Year.

     The Senate has on its part adopted concurrent resolutions originating in the House of the following titles:

     H.C.R. 265.  House concurrent resolution congratulating Sam’s Outdoor Outfitters on the retailer’s 75th anniversary.

     H.C.R. 266.  House concurrent resolution honoring Kermit and Margret Richardson for their dedication as citizen public servants in the town of Orange.

     H.C.R. 267.  House concurrent resolution congratulating the Basin Harbor Club on its receipt of a 2008 Vermont Centennial Business Award.

     H.C.R. 268.  House concurrent resolution congratulating the 2008 Windsor High School Yellow Jackets Division II boys’ basketball championship team.

Adjournment

At ten o’clock and thirty-five minutes in the forenoon, on motion of Rep. Adams of Hartland, the House adjourned until 10:00 a.m. on Monday, April 14, 2008.

Concurrent Resolutions Adopted

     The following concurrent resolutions, having been placed on the Consent Calendar on the preceding legislative day, and no member having requested floor consideration  as provided by the Joint Rules of the Senate and House of Representatives, are hereby adopted in concurrence.

H.C.R. 265

House concurrent resolution congratulating Sam’s Outdoor Outfitters on the retailer’s 75th anniversary

H.C.R. 266

House concurrent resolution honoring Kermit and Margaret Richardson for their dedication as citizen public servants in the town of Orange

H.C.R. 267

House concurrent resolution congratulating the Basin Harbor Club on its receipt of a 2008 Vermont Centennial Business Award

 

 

H.C.R. 268

House concurrent resolution congratulating the 2008 Windsor High School Yellow Jackets Division II boys’ basketball championship team

S.C.R. 42.

Senate concurrent resolution recognizing Vermont Uniform Law Commissioner Carl Lisman for his continuing assistance to the general assembly.

S.C.R. 43.

Senate concurrent resolution congratulating the Bethany Church-United Church of Christ of Montpelier on its bicentennial anniversary.

S.C.R. 44. 

Senate concurrent resolution honoring Margaret Trautz for her exemplary career contributions to the advancement of public policy in the areas of education, health and social welfare.

     [The full text of the concurrent resolutions appeared in the Senate and House Calendar Addendum on the preceding legislative day and will appear in the volume of the Public Acts and Resolves of the 2008, sixty-ninth  Adjourned session]

 



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