Section 57.91. Disclosure of eminent domain power of electric utilities

(a) A public utility may not, by its officers, employes, attorneys or agents, communicate in any manner, for the purpose of negotiating for the acquisition of a transmission line right-of-way, with a property owner or with a property owner’s representative, until at least 15 days after receipt by the property owner or the property owner’s representative of the notice required in this section. Communication with a property owner or with a property owner’s representative for the purpose of locating the owner of record or for the purpose of securing permission to survey the owner’s land is not prohibited and need not be preceded by this notice.

(b) A public utility shall cause the following notice, with the appropriate information inserted where blanks appear, to be sent by registered or certified mail, return receipt requested or to be delivered in person to each property owner or property owner’s representative with whom the utility anticipates negotiating for the purchase of transmission line rights-of-way; the notice shall be legibly printed or typewritten on paper 8 1/2 inches wide and 11 inches long:

NOTICE

The Pennsylvania Public Utility Commission requires that

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(utility name) give you the following information:

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(utility name) is presently planning to construct

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(brief description of project, in language understandable by an ordinary person, to include the voltage of the line, height, number and type of supporting structures to be used, and location and width of right-of-way required. If the physical dimensions of the line have not yet been determined or are subject to change, that fact should be clearly and fully stated.)Since the route presently under consideration could affect your property at

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(property owner’s address), a representative of the utility will contact you in the near future to discuss the utility’s plans as they may affect your property. In order to better prepare you for these discus sions and to avoid possible misunderstandings, we want to take this opportunity to inform you of your legal rights and the legal rights and duties of

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(utility name) with regard to this project. You have the right to have legal counsel represent you in these negotiations. You do not have to sign any agreement without the advice of counsel. If you do not know an attorney you may contact your local bar association. MUST YOU ACCEPT ANY OFFER MADE BY THE UTILITY FOR YOUR PROPERTY?

No. You may refuse to accept it. However, the utility has the power to take property by eminent domain, subject to the approval of the Public Utility Commission, for the construction of transmission lines if the utility is unable to negotiate an agreement to buy a right-of-way. If your property is condemned, you must be paid ‘‘just compensation.’’ ‘‘Just compensation’’ has been defined by the courts in Pennsylvania as the difference between the fair market value of your property before condemnation, unaffected by the condemnation, and the fair market value of your remaining property after condemnation, as affected by the condemnation. CAN THE UTILITY CONDEMN YOUR HOUSE?

No. The company cannot condemn your house or a reasonable ‘‘curtilage’’ around your house. Generally, curtilage includes the land or buildings within 300 feet of your house which are used for your domestic purposes. However, the 300-foot limit does not automatically extend beyond the homeowner’s property line. DO YOU HAVE A RIGHT TO A PUBLIC HEARING WHEN THE UTILITY SEEKS TO CONDEMN YOUR PROPERTY?

Yes. When an electric utility seeks to have your property condemned, the utility must first apply to the Pennsylvania Public Utility Commission for a certificate finding the condemnation to be necessary or proper for the service, accommodation, convenience, or safety of the public. The Commission will then hold a public hearing. As the landowner whose property may be condemned, you are a party to the proceeding and may retain counsel, present evidence, and/or testify yourself in opposition to the application for a certification. If you wish to testify at the public hearing, you should make your intention known by letter to Secretary, Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, Pennsylvania 17120.

If the Commission approves the utility’s application for a certificate finding the condemnation in the public interest, then the utility may proceed before the local Court of Common Pleas to condemn your land. If the Commission denies the utility’s application, the utility cannot condemn your land. If you retain an attorney to represent you before the Commission, you must do so at your own expense.

The Commission will not decide how much money you should receive if your land is condemned. The only issue the Commission will decide is whether the condemnation serves the public interest. If the Commission approves the utility’s application for condemnation, the amount of money to which you are entitled will be determined by a local Board of View or the Court of Common Pleas. However, you may at any time make an agreement with the utility as to the amount of damages you are to be paid.

NOTICE

The Pennsylvania Public Utility Commission requires that (company name) give you the following information on the RIGHT-OF-WAY MAINTENANCE PRACTICES for the (name of project):

The methods currently used by (name of company) are set forth in (title and description of applicable specification), which will be made available to you for your inspection upon request. If you wish further information concerning right-of-way maintenance methods, you may contact (name, address and telephone number of company representative). You may discuss with this person, either before or during negotiation of the right-of-way agreement, these methods and any other questions you may have about right-of-way maintenance.

Once a utility has constructed an electric transmission line on a right-of-way across your land, the utility must maintain the right-of-way free of tall-growing trees and brush which might impair the reliability of electric service, the safety of the line, and access to the line or its towers. The utility or its contractors may remove and control tall-growing trees and brush by several methods: handcutting of trees, limbs, and brush; mechanical cutting with chain saws or motorized cutting machines; application of herbicides, either from the ground or from a helicopter. The utility must confine its maintenance activities to the approved right-of-way across your land, except where tall-growing trees or brush or their root systems grow into the right-of-way from adjoining land and constitute a threat to the electric transmission line and its structures.

If you believe that the maintenance method(s) used by the company would raise problems with your use of your land adjacent to the right-of-way, it is your responsibility as the landowner to bring this to the attention of the utility before you sign the right-of-way agreement.

The utility company has the responsibility to maintain its rights-of-way, and regular maintenance must occur. Although you as the landowner cannot determine whether or not maintenance will occur, your right-of-way agreement may specify certain conditions on the performance of the maintenance program which are important to you. These conditions can be part of the negotiations between you and the utility company for your land, since a right-of-way agreement is a legal contract between a landowner and a utility company. It is important for you to understand also that the maintenance methods used by the utility company may change over time as the costs of maintenance or the methods of performing maintenance change. You may want to specify in your right-of-way agreement that the utility company inform you of changes in its maintenance methods or in the maintenance schedule for your land.

The provisions of the right-of-way agreement are enforceable in the local Court of Common Pleas. The right-of-way agreement cannot be enforced by the Pennsylvania Public Utility Commission. Any claims for damage resulting from improper maintenance of the right-of-way must be settled with the utility, its contractors, or in the local Court of Common Pleas at your own expense. The Commission cannot award damages for violations of the right-of-way agreement.

The provisions of this § 57.91 adopted May 19, 1978, effective May 20, 1978, 8 Pa.B. 1403; amended April 25, 1980, effective April 26, 1980, 10 Pa.B. 1666. Immediately preceding text appears at serial page (37399).

Notation

Cross References

This section cited in 52 Pa. Code § 69.3102 (relating to public notice filing requirements).