2/16/2014 Northern Pass May Face Right of Way Legal Battle | New Hampshire Public Radio

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North Country 5:07 PM TUE APRIL 3, 2012

Northern Pass May Face Right of Way Legal

Battle
By CHRIS JENSEN (/PEOPLE/CHRIS-JENSEN)

(http://mediad.publicbroadcasting.net/p/nhpr/files/Pastoriza%202%20%28Medium%29.JPG)
Kris Pastoriza of Enlarge image (http://mediad.publicbroadcasting.net/p/nhpr/f iles/Pastoriza%202%20%28Medium%29.JPG)
Easton
Credit Photo: Chris Jensen

Listen 5:59

(http://cpa.ds.npr.org/nhpr/audio/2012/04/nht040312cj1.mp3)
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.

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2/16/2014 Northern Pass May Face Right of Way Legal Battle | New Hampshire Public Radio
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.

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2/16/2014 Northern Pass May Face Right of Way Legal Battle | New Hampshire Public Radio
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.

They lost.

“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.

TAGS: Northern Pass (/term /northern-pass) legal (/term /legal) Law (/term /law)
right of way (/term /right-way ) electricity (/term /electricity )

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2/16/2014 Northern Pass May Face Right of Way Legal Battle | New Hampshire Public Radio

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Orange=StoptheNorthernPass • 2 years ago

The fact that these towers would require a significant extension of the ROW is
also a major concern for landowners, and one that should not be included in the
original ROW. The original ROW's were much smaller and out of view of most
landowners at the time that they were granted. However, taller towers adjacent
to the existing ones will require much more land being taken, thus forcing the
towers and their lines much closer to the homes, and will require the clear
cutting of many of the trees hiding those old lines. That is more than enough
change that is not technology modernization, but is, in fact, a totally
unnecessary land grab for private gain for a foreign for-profit company.

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Webmaster • 2 years ago

electric power companies have to upgrade capacity or the customers will risk a
degradation in service. The New England transmission grid is outdated and
maxed out now. the system needs to be upgraded. Next time you look at your
electric bill and see rising prices it is not only increasing fuel costs. It is the
costs added by having to fight lawsuits by stupid people. Accept the need to
upgrade capacity, or disconnect from the grid and live in a hole.

note: moderator edited one line in comment to comply with our guidelines:
"Write with civility and respect. If you can’t be polite, don’t post it. Disagree
without being disagreeable." Full guidelines at http://info.nhpr.org/node/1566...
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donttakemyhome Webmaster • 2 years ago

And what if this "upgrade" as you so call, takes away your home? The
one place that keeps you grounded in life. I am a Senior in highschool,
this project would take away my home, where I grew up, gained my
freedom, learned life lessons, had many firsts. You could never pay me
enough to get rid of my home. Im sure that you too would pay increases
if it affected something personal to you. Stop being so selfish and
worrying about your electric bill when there is a bigger picture for the life
of others. You put you and your family in families like mine shoes, there
are alternatives to fixing the problem, the northern pass isnt the solution.
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