EMINENT DOMAIN AND WIND DEVELOPMENT IN NEW YORK
An article appeared in North American Windpower in January of 2006 (Marketplace, p. 28) entitled "Eminent Domain And Wind Development In New York", authored by Steven D. Wilson of the law firm of Read and Laniado (www.readlaniado.com). The eminent domain article appeared on their website, but has since been removed.
(Back copies of North American Windpower can be ordered here: http://www.nawindpower.com/naw/nawpage.phtml?page=story-index06)
Read and Laniado, LLP is a member of the American Wind Energy Association and the attorneys for Reunion Power.
Among Mr. Wilson's conclusions in the article:
"To incorporate under the same provisions as have New York's
investor-owned utilities, an entity need only satisfy the statutory definition
and carry on the functions of a gas or electric corporation. The statute
defines gas and electric corporations broadly, requiring only that the
corporation is organized to generate and supply electricity for public
use.
Accordingly, it appears that a private wind developer could satisfy
the definition of an electric corporation and, thus, could incorporate as such. This grants the private developer the power of eminent domain."
Don't think it can happen?
November 2005 comment in the McPherson Sentinel by Rose Bacon, member of the Governor's Energy Task Force and a rancher in the Flint Hills:
"If you lease, chances are one or more of your neighbors is going to have to deal with eminent domain. Now these are private, wind development companies, however, once they sell that power to a power purchaser, they can go to the energy commission and as in Butler County, in two weeks and a little bit of paper work...they had the power of eminent domain to go across adjacent landowners' property with power lines, with trenches, with no public hearing."
"Landowners in the Flint Hills should beware that the Kansas Corporation Commission (KCC) granted a private Scottish owned corporation the right to use eminent domain powers to condemn property in Butler County in order to construct and operate an industrial wind power project. Elk River Wind Farm, LLC was given this eminent domain power without so much as a public hearing (Docket No. 05-ERWE-499-COC). In fact, the only ones that even received notice of Elk River’s application were other utilities. No notice was given to effected property owners.
"The entire process was quietly accomplished in less than three weeks and gives Elk River the power to dig trenches, make roads, install transmission lines and take an ownership interest in the property of unwilling landowners in order to construct their private turbine development. Documents that reveal which properties will be condemned are curiously stamped “Confidential” in the KCC file and are currently not available for public view. However, neighboring landowners have recently received notice that their property will be taken.
"For more than two years we have heard wind energy developers and proponents promise that they had no intention of using eminent domain to take our private property. Well, the Elk River project proves otherwise. Their formula for success is simple – all a developer needs is a county that allows industrial-scale turbines and one willing landowner to put everyone else’s property rights at risk. Thirty years ago, many folks opposed the federal government’s desire to take private property for a prairie park – today those same folks should be fighting against foreign corporation’s desire to take our private property for an industrial park."
Simon McGee, Kansas City, MO. 2/22/05
Noble has claimed that they don't have the power of eminent domain and wouldn't use it if they did. As you can see from the above, it makes no difference what they claim. It takes very little time and effort for them to get that power. If their multi-million dollar wind project is in jeopardy because they can't get land access for power lines, what do you suppose they'll do??
"... wind generation and related facilities."
Some of us could be living with power lines on our property whether we choose to or not. If you haven't read the Excerpts of The Lincoln Township Moratorium, click here to see Scott Srnka's story and the stray voltage problems he had in his formerly award winning dairy herd. It's been well documented in the press. Scott's neighbors had problems as well. The wind developers like to blow this story off by saying that Scott had stray voltage problems before the wind farm went online. This is true. It apparently wasn't much of a problem because he had an award winning dairy herd. The problem got so much worse after the wind farm went up, it would defy belief if there weren't so many witnesses.
Scott's neighbors also had stray voltage problems after the turbines went online, at least one of whom wasn't allowed to speak about it because he had a lease agreement with the wind developer. On November 9, 2000, Russ Allen filed suit against the developer, WPS. He alleged WPS negligently permitted stray voltage to harm his cows and that its distribution system was a nuisance. A jury trial took place from May 19 through June 12, 2003. The jury determined that stray voltage from WPS's distribution system caused harm to Allen's dairy farm, that WPS was negligent in its distribution of electricity, and that WPS's negligence caused the harm. It awarded Allen $750,000 in economic damages and $1,000,000 for annoyance, inconvenience and loss of use and enjoyment of his property. Two other neighbors sued and settled out of court and Scott Srnka was in negotiations with WPS at last report.
We received a letter on March 13, 2006 from a 35 year veteran of the electric power industry who owns land in Wethersfield. His letter was copied to the town attorney and stated that our concerns about stray voltage are based in fact. He helped clean up stray voltage problems in the Rochester Gas & Electric franchise area and confirmed that stray voltage exists where long power lines serve rural homes and farms. He expressed his doubt that the developer's ground grids would be adequate to dissipate the lightning strikes that the turbines are sure to attract, which could cause serious damage to nearby properties, and that erecting turbines in Wethersfield would not be in the best interests of the residents here. He recommended a minimum setback of 3/4 mile.
