Vermont Electric Power Corp. has asked for a new trial to settle a dispute with landowners over the construction of a mountaintop radio tower.
Felix Kniazev and Olga Julinska abandoned their home in Wells after Vermont Electric Power Corp., also known as VELCO, constructed a communications tower on their mountaintop property. Early this month, a Rutland Superior Court jury awarded the landowners $1 million – the property’s total appraised value in 2011 – for property diminution resulting from construction of the new tower.
Vermont’s electric transmission line company has now filed a motion to the Rutland Superior Court seeking a new trial or an amended judgment in this case, arguing the jury partly penalized VELCO for expanding an easement they already owned implicitly. This implicit easement includes “secondary rights” to temporary construction space and transmission line clearance that should not have been included in the fine, the company contends.
“I would say the main issue in the case is whether or how much our expansion of our existing easement actually reduces the value of the landowners’ house and land,” said VELCO Vice President Kerrick Johnson.
VELCO wanted to replace an existing radio tower used for communication between electricity utility crews maintaining the state’s power grid. VELCO and the landowners were unable to settle on the price for additional easements necessary for construction of a new tower and have been litigating since.
In 2011, VELCO filed for condemnation before the quasi-judicial Public Service Board, a procedure authorizing private entities to force the sale of a landowner’s private property, in order to expand the easement around the tower and widen a road. The board later ordered VELCO to pay the landowners $25,750 to cover the changes in the property resulting from the condemnation.
The jury should have put a value on the impact of the easements secured through the condemnation of the property, the company argues, not the impact of the existing easement owned by VELCO.
“By condemning additional rights, VELCO did not forfeit the rights it already owned,” VELCO’s motion states. “Instead, the jury was given the impossible task of attempting to answer this obscure legal question under instructions incorrectly suggesting that every right in the Condemnation Easement was new.”
The landowners disagree.
Julinska said VELCO has filed similar motions distinguishing the rights owned under the existing easement from those secured through condemnation. The judge denied these motions. Julinska expects a similar ruling on the current motion.
“If you sign a lease, it does say that you can throw trash out the window,” Julinska said in an interview Monday. “That’s kind of how they look at it. If it’s not written in there expressly then it is allowed.”
If the judge denies a new trial, then it’s likely VELCO will appeal to the state’s highest court of appeals.
“I would be extremely surprised if we do not file an appeal with the Vermont Supreme Court,” Johnson said. “I think it is all but inevitable.”
After the new motion is settled, VELCO will have 30 days to decide whether to appeal to the Supreme Court, a case that could set a national precedent.
“If it goes to an appeal, it becomes a national case. If they lose this appeal, I think it is going to have very serious consequences,” Julinska said. “If they go to the Supreme Court and lose, this case is going to help a lot of people around the country.”
The former easement around the 72-foot tower was a 24 by 24 square foot area. VELCO argues this existing easement included “secondary rights,” such as a temporary 60 by 60-foot easement around the new 80-foot tower, a temporary 40 by 60-foot construction easement and a 10-foot wide and tall airspace easement for transmission lines.
The condemnation included a 10-foot wide right-of-way and an expanded 40 by 40-foot easement around the tower.
“It chops up the property in different directions,” Julinska said. “What we are saying is that they basically took over the property.”
In its court filing, VELCO argues the property would remain nearly the same before and after the construction of the new tower with radio frequency emitting antennas. But the landowners are concerned that the new tower would emit an unregulated amount of radio frequency.
An Act 250 permit for the previous tower required that no new antennas could be installed on the tower, Julinska said. The new easement around the tower, however, does not limit the number of antennas on the tower or the amount of information they would transmit, she said.
“Basically, those who claim that before and after is not much different, that’s just garbage, frankly,” she said.
The couple’s home, which they purchased in 2007 for $390,000, is situated on 10.5 acres of land that includes a less than one-acre easement around the radio tower.
VELCO wanted to use this land because the alternative was to construct two costly towers on two separate mountains with comparably less transmission quality, Johnson said. He said he does not know exactly how much the case will cost the company that has built more than $1 billion worth of transmission lines in the state.
“However much it is, it’s probably a lot less than the alternative,” Johnson said.
