Over the last few years, I have repeatedly advised land owners in right of way negotiations with power companies to throw out the companies’ forms. You can make sure that your needs are met only if you and your attorney prepare your own agreement and present it to the power company to sign.
Brad and Carol Castle’s experience with Allegheny on the TrAIL project makes clear how right I am about preparing your own agreement. The Castles would have been better off if they had done just a few things differently. Here are some suggestions:
- You should never allow the power company or its agents to record your signed agreement. Anyone can record a document at the County Clerk’s Office. The right of way agreement is as much your document as it is theirs. Do not allow the executed agreement to leave your custody until you are sure that it is safely recorded with your County Clerk. That way you can remove any land agent’s temptation to fraudulently substitute pages to help the power company.
- If the power company gets you to sign an option agreement, do not allow them to record a “memorandum of agreement.” Record the whole option agreement yourself so that your neighbors can see exactly what the power company is paying you. Money secrecy works in the power company’s favor because it divides neighbors from neighbors and lets land agents cut special deals. Open information about pricing helps all land owners by making them aware of what others have gotten. Divide and conquer is the power company’s strategy. Talk to your neighbors about power company offers. Don’t let these outsider corporations spread rumors and suspicion in your community.
- Your agreement should have specific penalties and damage formulas spelled out for damage to your gates, fences, buildings and other property. If any specific property must be removed or modified by the power company during clearing and construction, that property should be listed and the specific arrangements for repair, replacement or removal should be specifically detailed in the agreement. You could specify that the company would pay you double or triple the replacement value of certain property if you determined that the damage was wanton or malicious.
- You could require the company to post a bond or deposit sufficient money into an escrow account, so that you would be assured that money had been set aside to insure payment of damages you incur during construction. You could have joint control over the account, and would not release funds back to the company until all your damage claims were satisfied.
- You could specify in the agreement the location of log landings and access to logs throughout the clearing/construction, as well as how logs will be stacked and trimmed. You could specifically forbid the use of any logs from the site for jackleg soil bank stabilization or stream crossings. The agreement should specify damages and penalties for violating these commitments.
- All requirements you put in your agreement should include specific penalties for violation or non-compliance. You should not tie your hands by agreeing to power company “arbitration” schemes. This is your land and you will have to live with the consequences. There is nothing to “arbitrate.”
- Make the power company produce a complete written plan for clearing the right of way on your property, including the clearing and management commitments they have made to the WV PSC and the WV DEP. The company should also provide you with the written industry standards they use for right of way clearing. All of these documents should be included in your agreement and the agreement should state clearly the penalties for violations of these practices during clearing and construction.
Above all, you should not take anyone else’s advice, including mine, without having a long discussion with a good attorney about what you want and what you will agree to.
If the power company thinks you are being unreasonable, then you should never be afraid to take your concerns and your requirements to a jury of your peers in your own county. If the power company has a certificate of need from the WV PSC which allows them to condemn your property, let them take you to court. The WV Constitution states that all jurors in condemnation suits must be “freeholders.” That means that they must be owners of real estate, just like you.
If the power company takes you to court, you can present your reasonable requirements to the jury. Don’t be afraid to let them help you convince the power company that you are being reasonable by protecting your land and your family. Here is a clear explanation of the condemnation process by an experienced WV attorney.
Don’t get pushed around. And don’t trust anyone from the power company when they tell you they have secret formulas or “a standard agreement.”
Get a lawyer.
Have your lawyer write your own agreement.
If the power company won’t agree to your terms, don’t be afraid of a condemnation suit.
Maybe your neighbors and fellow land owners on your local jury, as well as the judge that you help elect, can get the power company to see the reasonableness of your position.
One last thought —
Power company land agents, power company contractors, power company employees and the condemnation process are all focused on money. Everyone, throughout the right of way process, will want you to stay focused on how much money you are getting, as though money solved all your problems.
As the Castles pointed out in their testimony, they never asked for Allegheny to build the TrAIL line on their property. No amount of money will ever compensate you for the aggravation and destruction caused by the clearing and construction of a major transmission project. The destruction will be permanent. It is much more important to protect your land and your family and your livelihood than it is to quibble about dollars and cents.
Don’t let the power company’s people distract you with money from the main goal of protecting your land. You are the only person who can do that. And it’s not about the money. It’s about putting enforceable protections in your right of way agreement.