H. B. 4048
(By Delegates Craig, Amores, Mahan, Morgan, Pethtel, Stemple,
Caputo, Armstead, Schadler, Hamilton and Azinger)
[Originating in the Committee on the Judiciary]
[January 18, 2006]
A BILL to amend and reenact §54-1-2 of the Code of West Virginia,
1931, as amended, and to amend said code by adding thereto a
new section, designated §54-2-1a, all relating to eminent
domain; defining "internal improvement"; limiting the use of
eminent domain for certain purposes; prohibiting the use of
eminent domain to convey property to certain owners; providing
for conditional resale of condemned property to prior owners
thereof, with exceptions thereto; and requiring good faith
purchase period and offer prior to initiation of condemnation
proceeding.
Be it enacted by the Legislature of West Virginia:
That §54-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted, and that said code be amended by adding
thereto a new section, designated §54-2-1a, all to read as follows:
§54-1-2. Public uses for which private property may be taken or
damaged.
The public uses for which private property may be taken or
damaged are as follows:
(a) For the construction, maintenance and operation of
railroad and traction lines (including extension, lateral and
branch lines, spurs, switches and sidetracks), canals, public
landings, wharves, bridges, public roads, streets, alleys, parks
and other works of internal improvement, for the public use;
(b) For the construction and maintenance of telegraph,
telephone, electric light, heat and power plants, systems, lines,
transmission lines, conduits, stations (including branch, spur and
service lines), when for public use;
(c) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities for manufacturing gas and
for transporting petroleum oil, natural gas, manufactured gas, and
all mixtures and combinations thereof, by means of pipes, pressure
stations or otherwise, (including the construction and operation of
telephone and telegraph lines for the service of such systems and
plants), and for underground storage areas and facilities, and the
operation and maintenance thereof, for the injection, storage and
removal of natural gas in subterranean oil and/or gas bearing
stratum, which, as shown by previous exploration of the stratum
sought to be condemned and within the limits of the reservoir
proposed to be utilized for such purposes, has ceased to produce or
has been proved to be nonproductive of oil and/or gas in substantial quantities, when for public use, the extent of the area
to be acquired for such purpose to be determined by the court on
the basis of reasonable need therefor. Nothing in this subsection
shall be construed to interfere with the power of the state and its
political subdivisions to enact and enforce ordinances and
regulations deemed necessary to protect the lives and property of
citizens from the effects of explosions of oil or gas;
(d) For constructing, maintaining and operating, water plants
and systems, including lines for transporting water by any
corporate body politic, or private corporation, for supplying water
to the inhabitants of any city, town, village or community, for
public use, including lands for pump stations, reservoirs,
cisterns, storage dams, and other means of storing, purifying and
transporting water, and the right to take and damage lands which
may be flooded by the impounded waters, and to appropriate any
spring, stream and the surrounding property necessary to protect,
preserve and maintain the purity of any such spring, stream,
reservoir, cistern and water impounded by means of any storage dam;
(e) For the purpose of constructing, maintaining and operating
sewer systems, lines and sewage disposal plants, to collect,
transport and dispose of sewage. When in the interest of the
public welfare and the preservation of the public health, the
construction of a sewer line to serve a single building or
institution shall be deemed a public use, and, for such purpose, the right of eminent domain, if within a municipal corporation, may
be exercised in the name of a municipal corporation, and if not
within a municipal corporation, in the name of the county court of
the county in which the property is located;
(f) For the reasonable use by an incorporated company engaged
in a public enterprise of which the state or any county or
municipality is the sole or a part owner;
(g) For courthouses and municipal buildings, parks, public
playgrounds, the location of public monuments, and all other public
buildings;
(h) For cemeteries, and the extension and enlargement of
existing cemeteries:
Provided, That no lands shall be taken for
cemetery purposes which lie within four hundred feet of a dwelling
house, unless to extend the boundaries of an existing cemetery, and
then only in such manner that the limits of the existing cemetery
shall not be extended nearer than four hundred feet of any dwelling
house distant four hundred feet or more from such cemetery, or
nearer than it was to any dwelling house which is within four
hundred feet thereof;
(I) For public schools, public libraries and public hospitals;
(j) For the construction and operation of booms (including
approaches, landings and ways necessary for such objects), when for
a public use;
(k) By the state of West Virginia for any and every other public use, object and purpose not herein specifically mentioned.
By the United States of America for each and every legitimate
public use, need and purpose of the government of the United
States, within the purview, and subject to the provisions of
chapter one of this code;
(l) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities, for the transportation by
common carrier as a public utility of coal and its derivatives and
all mixtures and combinations thereof with any substance by means
of pipes, pressure stations or otherwise (including the
construction and operation of telephone and telegraph lines for the
service of such systems and plants), for public use:
Provided,
That the common carrier engages in some intrastate activity in this
state, if there is any reasonable demand therefor:
Provided,
however, That in addition to all other requisites by federal or
state constitutions, statute or common law required for the taking
of private property for public use, a further prerequisite and
condition precedent to the exercise of such taking of or damage to
private property for public use as in this subsection hereinabove
provided, is that the public service commission of this state, in
an appropriate hearing and proceeding on due notice to all
interested persons, firms or corporations, in accordance with the
procedure now or hereafter established by statute and the
regulations thereunder, shall have found that such pipeline transportation of coal and its derivatives and all mixtures and
combinations thereof is required for the public convenience and
necessity, and that the public service commission of this state
shall not extend a certificate of convenience and necessity or make
such finding of public convenience and necessity unless, in
addition to the other facts required to support such findings, it
shall have been established by the applicant therefor that the
patents and other similar rights under which the applicant proposes
to construct, maintain or operate such pipeline, plants, systems
and storage facilities shall be and shall remain equally available,
insofar as said subsequent applicant may determine such
availability, upon fair and reasonable terms, to other bona fide
applicants seeking a certificate of convenience and necessity and
finding of fact for any other pipeline in West Virginia; for the
purpose of making the findings hereinbefore set forth the public
service commission shall have and exercise jurisdiction, and that
the aforesaid findings in this proviso above set forth shall be
subject to judicial review as in other public service commission
proceedings.
It is the intention of the Legislature in amending this
section by the addition of subdivision (1) as set forth above to
extend the right of eminent domain to coal pipelines for public
use; to provide for regulation of such coal pipelines by the public
service commission of this state or the interstate commerce commission of the United States of America, or both; to assure that
such rights shall be extended only to public utilities or common
carriers as distinguished from private carriers or contract
carriers; to make patents covering the same equally available to
others on fair and reasonable terms; and to prevent monopolistic
use of coal pipelines by any users thereof which would result in
any appreciable economic detriment to others similarly situated by
reasons of any such monopoly.
(m) For the purposes of the use of eminent domain, the term
"internal improvement" means only public uses authorized by
subsections (a), (b), (c), (d), (e), (h) and (l) of this section.
(n) Notwithstanding any other provision of law, eminent domain
may not be used to condemn property for:
(1) Private retail, office, commercial, industrial or
residential development, or for enhancement of tax revenue; or
(2) To purchase property for a purpose that results in a
transfer in fee of the property to a person, nongovernmental
entity, corporation or other business entity to fulfill the purpose
of the use of eminent domain.
(o) Property condemned by use of eminent domain if not used
for the purpose or purposes for which it was condemned or for some
other public use by the condemning party or its successor or assign
within ten years, shall be offered by the condemning party or its
successor or assign for resale to the person or persons from whom the property was condemned, who shall have the right to purchase
the property at the price originally paid for the property. This
right of purchase expires ninety days following receipt of notice
of right to purchase: Provided, That the provisions of this
subsection do not apply to the use of eminent domain to acquire
contiguous properties for the purpose of construction of a road,
utility service, or other similar use that requires acquiring
contiguous properties or rights of ways to those properties to
connect the infrastructure being provided, but does include the
acquisition by eminent domain of any property that is not essential
to providing that road or service.
§54-2-1a. Notice; good faith purchase.
Prior to initiation of any condemnation proceeding, the
applicant must notify all parties subject to a petition for
condemnation provided in section two of this article, and attempt
to enter into negotiations for purchase of the property with the
owner or owners, or if less than a fee estate is being condemned,
the owners of any estate subject to condemnation. The applicant
shall make a fair market value offer in good faith for the purchase
of the property or estate subject to the condemnation prior to
initiation of the condemnation proceeding.
NOTE: The purpose of this bill is to place limits on the use
of eminent domain; prohibiting the use of eminent domain for
certain purposes; providing that persons from which property is
taken have the right of first refusal if subsequently sold;
excepting property in blight or slum areas from these limitations; and requiring a good faith attempt to purchase prior to imitation
of a condemnation proceeding.
Email
Webmaster | © 2024 West Virginia Legislature **
