Section 495.6. Terms

(a) Rental. In determining the annual rental to be paid by the lessee, the Department will take into account all relevant factors, including the character and nature of the lessee and proposed sublessees, the rental customarily charged for other rental properties in the vicinity used for similar purposes, and any public purpose to be served or advanced by the intended use of the real property.

(b) Federal, State, and local statutes and regulations. Leases will be subject to applicable Federal, State and local statutes, ordinances, regulations, comprehensive planning, and zoning; and the lessee and sublessees shall be responsible for compliance therewith and for payment of costs of compliance including but not limited to, preparation of required environmental statements and providing notice of opportunity for and holding of public hearings.

(c) Exempt from claims. The lessee and a sublessee will be required to hold the Department and its employes harmless from claims which may accrue on account of the use of the real property by the lessee or sublessee and shall be required to purchase insurance against injury to persons and damage to property in an amount as the Department deems reasonably necessary.

(d) Improvements to property. Upon termination of the lease, the lessee and sublessees shall, at the option of the Department, abandon improvements they may have made to the real property or restore the premises to their previous condition. The Department may require the posting of a bond, in an amount as the Department deems necessary, to insure compliance with this and other terms of the lease.

(e) Termination. Leases and subleases shall be subject to the Secretary’s right of termination upon prior written notice to the lessee and sublessees when, in the opinion of the Secretary, the real property subject to the lease is required to improve safety or flow of traffic.

(1) Upon such termination the Department will pay damages to the lessee and sublessees as may be provided in the lease; or, absent a damages provision in the lease, the Department will pay damages as the Secretary determines to be reasonable under the circumstances, taking into account relevant factors, including the initial cost of the improvements located on the real property and repairs and replacements thereof, the age of improvements, the replacement cost thereof, and the cost of removal of improvements by the lessee or sublessees. Neither the lessee nor sublessees shall be entitled to damages on account of termination other than those provided in this paragraph.

(2) Upon termination by the Secretary under this subsection, the Department will use its best efforts to provide the lessee and sublessees with other leased premises on real property held by the Department in which they may relocate their improvements and upon which they may continue to conduct the activities or businesses which were carried on at the former site prior to termination.

(f) Use of premises. Use of premises shall be subject to the following conditions:

(1) If the Department has only an aerial easement, no lease may be entered into under this chapter.

(2) If the Department has an easement for highway purposes, only highway-related uses may be made of the leased premises, for example, public parking with or without charge, unless the lessee or sublessee is the owner of the underlying fee, in which case paragraph (3) applies.

(3) If the Department holds title in fee simple, any use may be made of the leased premises which the Department determines to be consistent with the public interest and not inconsistent with the Department’s use of its facilities.

(g) Repossession. The Department will be entitled to repossess the premises upon violation by the lessee or sublessee of a term of the lease.

The provisions of this § 495.6 adopted May 9, 1975, effective May 10, 1975, 5 Pa.B. 1230; amended November 10, 1978, effective November 11, 1978, 8 Pa.B. 3095; amended August 15, 1980, effective August 16, 1980, 10 Pa.B. 3392; amended September 23, 1983, effective September 24, 1983, 13 Pa.B. 2983; readopted August 5, 1988, effective August 6, 1988, 18 Pa.B. 3434. Immediately preceding text appears at serial pages (113707) to (113709).

Notation

Notes of Decisions

Acquisition of fee underlying previously acquired easement for purposes of leasing to public authority for construction of a parking garage was an acquisition of land for a ‘‘transportation purpose,’’ where said action was integral part of highway project. Miller v. Department of Transportation, 498 A.2d 1370 (Pa. Cmwlth. 1985).

The fact that 67 Pa. Code § 495.6(f) characterizes ‘‘public parking’’ as a ‘‘highway related use’’ supports the conclusion that for purposes of section 2003(e)(i) of The Administrative Code of 1929 (71 P. S. § 513), ‘‘transportation purposes’’ includes transportation related activities such as construction and operation of a parking garage. Miller v. Department of Transportation, 498 A.2d 1370 (Pa. Cmwlth. 1985).

Lease of property to a third party for use as a surface parking lot is a use specifically permitted by 67 Pa. Code § 495.6(f) and does not constitute abandonment of the easement which had been acquired by the Department. Miller v. Department of Transportation, 498 A.2d 1370 (Pa. Cmwlth. 1985).

Department of Transportation was not required to offer property for public sale under section 2003(e) of The Administrative Code of 1929 (71 P. S. § 513) (where Secretary determines land not needed for transportation purposes), since proposed lease to Philadelphia Parking Authority for construction of parking garage is characterized as a ‘‘highway related use’’ under 67 Pa. Code § 495.6(f) and such characterization would be inconsistent with a determination under section 2003(e) that the land was not needed for transportation purposes. E-Z Parks, Inc. v. Larson, 498 A.2d 1364 (Pa. Cmwlth. 1985); affirmed 503 A.2d 931 (Pa. 1986).