Senate Bill No. 737
(By Senators Hunter, White and Sypolt)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §54-1-2 of the Code of West Virginia,
1931, as amended, relating to limiting the use of eminent
domain for certain electric transmission lines.
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 to read as follows:
ARTICLE 1. RIGHT OF EMINENT DOMAIN.
§54-1-2. Public uses for which private property may be taken or
damaged.
(a) The public uses for which private property may be taken or
damaged are as follows:
(1) 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;
(2) 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:
Provided, That the right of
eminent domain is not extended to electronic transmission companies
without retail customers within West Virginia;
(3) 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;
(4) 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;
(5) 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
commission of the county in which the property is located;
(6) 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;
(7) For courthouses and municipal buildings, parks, public
playgrounds, the location of public monuments, and all other public
buildings;
(8) 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;
(9) For public schools, public libraries and public hospitals;
(10) For the construction and operation of booms (including
approaches, landings and ways necessary for such objects), when for
a public use;
(11) By the State of West Virginia for any and every other
public use, object and purpose not herein specifically mentioned,
but in no event may "public use", for the purposes of this
subdivision, be construed to mean the exercise of eminent domain
primarily for private economic development.
For purposes of this subdivision, no private property may be
taken by the State of West Virginia or its political subdivisions
without the owner's consent when the primary purpose of the taking
is economic development that will ultimately result in ownership or
control of the property transferring to another private entity,
other than one having the power of eminent domain, whether by
purchase agreement, long-term lease agreement or any other
mechanism whereby ownership or control is effectively transferred:
Provided, That a municipal urban renewal authority may exercise a
right of eminent domain as to property only within an area
designated a slum area or blighted area under the provisions of
article eighteen, chapter sixteen of this code.
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.
(12) 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 (12) 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.
NOTE: The purpose of this bill is to limit the use of eminent
domain by electronic transmission companies who do not have
customers in West Virginia.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.