What simple change would make a great difference defending private property rights? Of all the recurring problematic aspects I've noticed after listening to countless inquirers who seek assistance to solve their property rights problems, one factor stands out above all: the need to organize one's thoughts. This is also the saddest aspect of this project.
A great proportion of people who are beset with difficulties refuse to stop and try to set down exactly what is happening to them so that they can rationally convey the situation to a potential source of help. Instead, as a discussion seems to inevitably ensue over an easily conveyed, essential detail, the inquirer wanders off into a host of related and irrelevant grievances and thoughts from the perceived corruption of town officials to the United Nations. The defense of private property rights has a much greater chance when the individuals who are affected rationally apply themselves to understanding and conveying their situation.
A Common IssueLocal Siting of a Wind Farm and Electric
Many inquiries are arriving at PRFA in connection with property rights related to energy development, both from the development side and the local property owners who perceive negative impacts. This inquiry exemplifies those of many property owners who oppose energy development, as well as the widespread failure of people who face a variety of property rights issues to organize their thoughts.
1. Convey the facts.
The inquirer's report. The caller said that her area was threatened by industrial wind development, which included a transmission system. She repeated several times that the wind farm company was sneaking around, threatening and harassing property owners into signing leases for the transmission system. The town board had just gone against the landowners and agreed to bury the transmission line under the town highway.
The facts. The caller wanted help, but it was challenging obtaining information from her, if for no other reason than to ascertain whether a property rights issue was involved. This is a brief summary of the situation, extracted during a long interview.
Certain property owners had already signed contracts with a named wind power generating company for the construction of a wind farm on their land. The company was approaching other property owners to sign easements to construct and maintain the electric transmission line through their land to a nearby substation and reportedly telling the property owners that the route would be taken by eminent domain it they did not voluntarily convey the easements. Eight property owners, including the caller, of perhaps twenty, had refused to sell easements. It was unknown whether the wind farm company had the power of eminent domain or whether any other entity would exercise it on the behalf of the company.
Key. The situation description was finally extracted from the caller, focusing on a property rights question involving eminent domain by a power generating company for a transmission line to deliver electricity to a utility substation. The private company is not a utility. This raises a specific legal question that might be readily answered by researching the law pertaining to the power of utilities and other power generating companies to exert eminent domain in New York State. As this caller progressed, another determinative issue concerning public health was raised that would be far more complex and expensive to litigate. The caller's presentation obfuscated a situation that had two distinct aspects to it.
2. Convey the specific concern that you have and the exact
basis of the concern.
The inquirer's statement. The caller spoke about five years of harassment to get neighbors of the proposed wind farm and property owners along the route to sign leases for the transmission line. She was concerned about the use of eminent domain. She was also concerned about overly broad terms to the leases.
Only after being asked about the right-of-way and wind machine setbacks did she speak about what might have been her overriding concernthe potential negative human impact of the electromagnetic field from the turbines and transmission lines. The latter field, she said, would not be mitigated by burying the lines as planned.
She also noted that the owners along the proposed transmission line would not receive free electricity. In addition, she was concerned about an undefined second phase to the project, noting that the environmental impact statement for the project was approved by regulatory authorities without spelling out the full project scope including both phases. Unlike many other disputes involving wind towers, the caller did not raise the issue of aesthetics.
The specific concerns. Although there had been five years of activity in the area by the wind farm company to obtain easements, the concern about the use of eminent domain had not been traced down to ascertain the actual law governing the wind farm company. The caller had determined that the wind power developer was not a utility under state law, which related to the power to invoke eminent domain. The caller understood that there were no state wind farm siting requirements but did not know the details of where the siting law was currently held up in the state legislature after expiring. She did not know whether regulations under the federal Department of Energy facilitated eminent domain or other powers that could be exerted. Finding this information would have made her concerns about eminent domain specific.
The caller did not have information about whether any landowner had attempted to negotiate the agreement to specify the access route to maintain the transmission line. The caller had information that concluded that the safe or comfortable distance for electromagnetic effects and noise from the turbines was 1.5 times the turbine height of 800 ft. according to manufacturers and 3,000 ft. according to scientific sources, but the final environmental impact statement required only a 500-ft. setback from any neighbor's line. The caller did not have a sense of the measured level of electromagnet field that was known to trigger ill effects.
Key. This caller's situation became confused by the way she presented information, focusing primarily on what was said to be harassment of property owners along the proposed transmission route. The potential use of eminent domain, which could be a property rights issue within the purview of PRFA, almost appeared secondary. The primary issue, which took a significant amount of investigative questioning to unearth, was a potential public health issue, the effect of an electromagnetic field (EMF) from a transmission line, which is an area beyond the knowledge and experience of PRFA.
If the caller had simply stated that she represents a group of landowners along a proposed transmission line who were concerned about the EMF and were afraid that the wind power generating company would impose the transmission line by eminent domain, the person receiving the inquiry would have immediately had an overview of the situation. Then the remaining pieces of the situation would have had a logical context and the process of assisting the caller would have been facilitated.
3. The history of events.
The background according to the caller. Except for the five years of harassment to obtain leases and the town's decision recently to allow the transmission line to be buried along the town highway, the caller did not convey any history of the development of the wind tower project. The caller had begun acquiring legal information important to the issue, such as that the town had only a limited right to grant utility easements along its highways.
The actual history. The history would include the chronology from the point of view of the affected property owners, such as the acquisition of the site locations, right-of-way easements, and when, perhaps judging from legal filings or other projects, eminent domain might be instigated. The chronology would also include the exact status of environmental review, and the related affairs of the corporation, such as any reports on its investments such as other wind projects, possible government grants and credits, and the project's envisioned completion date. The date of filing of an "Article 78" lawsuit (a New York State legal reference to a type of civil action) mentioned by the caller, and its chronology and significance should have been revealed.
Key. Without this immediate historic background, especially the status of any lawsuit, the party from whom the caller was requesting help could not evaluate the potential for legal recourse.
4. What you and your organization have done.
What the caller said was done. The caller had gone house-to-house to trace down the company's quest for the transmission line leases. It was apparent that the group working with the caller had been reading about the effects of electromagnetic fields. The non-cooperating property owners had engaged a lawyer to sue the company, using a cause of action related to eminent domain. The caller was obviously seeking help outside the community.
Complete information. The caller should have described the basis for the eminent domain lawsuit and how it was being organized. The caller should have conveyed information about the group's participation in the environmental review process.
Key. As noted above, if the caller had divulged the status of the group's eminent domain litigation, it would have been clear to the person receiving the inquiry what legal assistance might be sought.
5. What you and your organization would like to do.
The caller's information about goals. The broad outline of the caller's goals was clear, namely, to prevent the use of eminent domain and to stop the wind farm project. It was unclear whether the caller and the group had any specific goals to limit the impact of the project if it could not be stopped. The caller asked for names of possibly affordable, recommended attorneys to take their eminent domain litigation.
What the caller and her organization actually wanted to do. At the caller's repeated urging, she received from this writer the names of highly recommended lawyers who might consider taking on the group's eminent domain litigation. But rather than inquiring about engaging the attorney, when a representative of the caller's group contacted one of the attorneys, she instead asked for pro bono legal representation, referencing this writer.
Key. One of the occasional features of inquiries to PRFA that prove negative is lack of good faith. The lack of forthrightness in this inquiry discredited the caller and made it unlikely that the group could be trusted.
6. Factual information about what resources you have and
Resources mentioned by the caller. The caller mentioned a group of landowners, a lawyer that they had engaged, and that they had two allies on the town board. She said that she sought a recommendation of an attorney for legal services.
Factual information about the caller's resources and what was sought. Such information would have included their financial organization, their work with the legislature, their continuing work with the town board, the status of their lawsuit, and the parameters of their search for an additional attorney.
Key. Knowing the financial capacity of the group to pursue a lawsuit and, as discussed above, being aware of their current commitment to an attorney for specific legal action would have enabled the person receiving the inquiry to evaluate more fully what type of help could be sought. A discussion of the group's use of other resources, such as the legislature, might have opened up the discussion to strategize about other areas of effective action.
If the caller had used the six-point summary method outlined in this "Position Brief," keeping the summary to well less than two pages, the situation faced by the property owners and their request for help would have been clearly communicated. It is possible that strategic benefits would have resulted. The group's confused communication and concealed agenda to obtain free legal assistance precluded their receiving property rights-related assistance that might have been possible.