§ 459.12. Modification of conditions.
(a) General rule. When a term or condition of this chapter cannot be met, an applicant may request, in writing, that the district office modify that term or condition if it is not required by law, under the following:
(1) The applicant has done all that can reasonably be done to comply with the term or condition.
(2) The proposed modification satisfies the intent of the term or condition to be modified.
(3) The proposed modification represents the minimum feasible deviation from the term or condition to be modified.
(4) The reason for the requested modification is infeasibility of meeting the exact terms or conditions of this chapter rather than mere economic benefit to the applicant.
(b) Modification granted. If a requested modification is granted, the permit will specify the allowable modification. A permit issued under authority of this section shall be signed only by the district engineer or higher Departmental authority. The granting of a modification will be predicated on the applicants complying with the following:
(1) Unless the applicant is excused in writing, executing a hold harmless and indemnity agreement acceptable to the Department, under § 459.7(11) (relating to general conditions).
(2) Unless the applicant is excused in writing, obtaining bonds satisfactory to the Department to guarantee highway restoration and maintenance costs, under § 459.7(16).
(3) Unless the applicant is excused in writing, obtaining public liability insurance for personal injury and property damage on behalf of the Department, its officers, agents and employes, in a form and amount acceptable to the Department, for the life of the facility.
(4) Permit conditions, which may include use restrictions, special traffic control devices or safety features.
(c) Restrictions. A municipality authorized to issue permits for the Department may not modify a term or condition of this chapter without obtaining written authorization from the district engineer. If the modification is granted by the district engineer, the municipality shall require the applicant to provide security or satisfy other conditions required by the district engineer. The municipality shall indemnify and hold harmless the Department for negligence by the municipality in issuing the permit.
(d) Third parties. The modification of a term or condition by the district engineer does not create rights in a third party, nor does a waiver act as a modification of the common law duty of the applicant to relocate its facilities upon demand by the Department to another location within the right-of-way at the sole cost of the applicant.
The provisions of this § 459.12 issued under sections 411, 420 and 702 of the State Highway Law (36 P. S. § § 670-411, 670-420 and 670-702).
The provisions of this § 459.12 adopted January 20, 1989, effective March 22, 1989, 19 Pa.B. 241.
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