Tue April 3, 2012
Northern Pass May Face Right of Way Legal Battle
Much of the battle over the Northern Pass hydro-electric project has focused on cutting a new route through the forests of the North Country.
Northern Pass intends to use 140 miles of existing right of way for much of the remainder of the project.
That may not be as easy as it sounds.
NHPR's Chris Jensen reports.
It takes maybe five minutes – including crossing a large brook on a narrow board – for Kris Pastoriza to reach the right-of-way that cuts through her wooded land in Easton.
Running down middle of the right-of-way are electric towers Pastoriza guesses are about 55 feet tall.
Her land is part of the Northern Pass plan to use about 140 miles of existing rights-of-way to carry electricity south.
Many of those agreements have been in existence for decades.
Pastoriza says she isn’t sure exactly how tall the new towers would be.
NorthernPasshas said “the most common structure height” along such rights-of-way in this area will be 80 to 95 feet tall.
Pastoriza never liked the current towers, but suddenly they’re looking better.
“In comparison with what’s coming they look mild and woodsy.”
About 40 miles south – below the Notches – in Holderness Mike Marino and Lee Ann Moulder stand in the living room of the dream retirement home they built high on the side of a hill.
“We have, I would say, a 180-degree view looking over, that would be to the west, looking over the town of Plymouth, it is in the valley, the Baker River Valley.”
Down below, hidden by the trees, is a right-of-way on their land.
If Northern Pass goes through Marino figures the new towers will poke up above the trees destroying the view and – he worries – the property value.
“I am not a lawyer, but I know what is right and what is wrong.”
Pastoriza says the language on her deed is so broad it seems to allow anything.
She points to the word “tower.”
“A tower at the time they did the document was a 55-foot wooden pole. Because they are permitted for towers does that mean they can put a 120-130 foot metal grid tower? Does it mean if years later they come up with a 1,000-foot tower they can do that?”
The statements from Northern Pass suggest using the existing-right-of-way over those 140 miles is a done deal.
Martin Murray, a Northern Pass spokesman, declined to say how many landowners there are along that 140 miles.
But some land owners both above and below the notches say they’re ready for a legal fight.
Bob Baker is a lawyer who lives in Columbia and is working with groups opposing Northern Pass.
“I would say that the odds of multiple legal fights are pretty good.”
It is possible individual landowners may have higher-powered company.
The Society for the Protection of New Hampshire Forests has a right-of-way across its land at The Rocks Estate in Bethlehem and it has been studying the legal angles.
A legal challenge is likely to center around the wording of the deeds in which landowners gave PSNH the right-of-way apparently in return for a one-time payment.
Marcus Hurn, a professor at the UNH School of Law, says those who wish to challenge Northern Pass are likely to have a tough time.
“I’d be pretty concerned if I were trying to represent the landowners.”
Hurn says there are two pertinent New Hampshire Supreme Court cases.
A 1933 decision involved a right-of-way granted before the Civil War in Laconia for wagons.
In what is called the rule of reason, the Supreme Court concluded if it was reasonable to make a deal allowing the passage of wagons it was reasonable to allow the passage of motor vehicles later.
“It has been very clear in this state for almost a century that you can’t freeze rights-of-way rights technologically.”
That means Northern Pass could argue the new power lines on much taller towers are a logical evolution and should be allowed.
The second case occurred in 1990 and involved landowners objecting to an additional power line.
“The court said unless you can show that this is going to somehow significantly burden the landowner in some new and different way then a utility easement is a utility easement and the utility gets to use it.”
The key there is the idea of a new and different burden.
The Supreme Court also noted it didn’t want anyone to think its decision meant such easements would allow “unlimited expansion.”
The court noted the ruling might have gone in favor of the landowner if some special downside was proven such as “adverse health effects from the increased voltage.”
That could open a door for Northern Pass opponents who have voiced concerns about high voltage lines causing health problems.
The question of whether an electromagnetic field – such as from high-voltage power lines – can cause cancer in children has been studied for decades without a consensus.
But some researchers say it is a complex issue and caution is warranted until a conclusion is reached.
Professor Hurn says if he was arguing Northern Pass’ case here’s how he would do it:
“The one in favor of the utility companies would be these are easements that are several hundred feet wide, the New Hampshire law is clear, the technology is not frozen in time, the reasonable economic development of the utilities’ rights involves modernization and there is nothing in the easement that restricts them from using higher towers if that is the state of the art.”
How about for the landowners?
“On the other side I would be digging up for physical burdens. The higher tower may not be that big a deal but getting the equipment in there might be. And, I would at least try and see if there was a significant impact on property values.”
Martin Murray, the spokesman for PSNH and Northern Pass, declined to discuss the legal aspects of the rights-of-way or details of the existing agreements.
Any legal challenges are unlikely to be filed until – and if – Northern Pass is approved by various state and federal agencies.