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Velco Poles March On Bringing Landowners Problems With Them

Tuesday December 5, 2006

By Dale Piper

    The long-standing court battle between Harley Grice of New Haven and VELCO was recently decided in favor of VELCO, allowing the power cooperative virtually unlimited access to the Grice lands at any time for the purpose of installing and maintaining poles for their Reliability Project.  Their claim to eminent domain, in securing additional right-of-way property, was upheld as well.  Eminent domain has been an issue throughout the project, as the poles carry fiber optic cables in addition to those carrying electricity.  Virtually all deeds and agreements pertaining to VELCO's rights-of-way specify the transmission of electricity, including communication via electricity, with no mention of fiber optics.  Those lines are strung by VELCO for profit as opposed to electricity for the public good.

    This is one point that VELCO  refuses to discuss with property owners, saying “We do not discuss [fiber optic] usage with parties who do not have a legitimate interest in such information.”  

    Many of the same issues have now surfaced with Werner's Tree Farm, on Painter Road in Middlebury.  VELCO is, up to this point, claiming the right to access the tree farm property in any way that they choose in order to install poles that will link those on the Grice property to those already installed south of Painter Road.  Aggravating the situation is the timing.  Werner's Tree Farm began their season this past weekend and will be busy right through Christmas Eve.  However, with the Grice decision still warm, VELCO intends to begin work right away, which could very possibly wreak havoc with the Christmas tree business.   

    Dave and Cheryl Werner have retained attorney Jim Dumont to represent them in their dealings with VELCO, as did Harley Grice.  Primarily at issue is the question of where and when the power company can access the Werner land in order to install the poles and power lines.  The Werners' deed to the land and a subsequent signed agreement with VELCO, specifies an access route, spelled out in detail, which will cause the least damage to the property while still providing ample access.  It furthermore specifies VELCO's financial responsibility should damage be caused by their activities outside the stipulated right-of-way.  During the current exchange between the Werners' attorney and VELCO the power company has been denying their obligation to abide by the agreements and refusing any compensation for damage, despite the existing legal documents.  In 1985 another document was drawn up granting the Werners permission to plant trees within the right of way, providing that they not be over ten feet in height and not be closer than twelve feet from existing poles for routine maintenance.  The Werners have abided by this agreement.  In a letter to Dumont, Thomas Wies, Vice President and General Counsel for VELCO, says, “With respect to access to the Werners' property, the easement deed gives the Werners the right to designate access routes, but only if the routes are “practicable and acceptable” to VELCO.  Otherwise we have the right to travel across that property by all “convenient and reasonable approaches.”  Thus far, no routes proposed by the Werners have been acceptable, despite the fact that they have offered to cut selected trees to make the approaches more workable.

    At issue as well is the impact the line construction crew's activity will have on the tree farm's 2006 season.  According to VELCO's correspondence the company's best window of opportunity for the work that needs to be done coincides exactly with the farm's only selling season.  As a result, the Werners' have decided to suspend tree tagging this year, since there is no way of knowing which trees will be damaged or destroyed.  Normal customer traffic and activity might also be negatively impacted, as there are likely to be trucks, cranes and other large equipment anywhere on the property while customers are choosing, cutting and removing their trees.  From past experience, it seems likely that the only driveway in and out of the farm may be torn up, muddy and possibly blocked completely by power company vehicles.  Such conditions have existed before, and despite promises to the contrary, the power company never came back to repair anything.  

    The financial impact to the Werners could be devastating, as they were unable to replant this past spring, missing one year's rotation, not knowing what plantings were likely to be destroyed.  Through Dumont, they also proposed that they close completely this year and asked VELCO to reimburse them for the season's normal receipts, thus avoiding the need to haggle over specifics.  This VELCO also refused.

    At issue as well is the fact that the Werners own a number of horses, which must be moved during the construction process, as helicopters are used.  The helicopters fly extremely low and scare the horses quite badly.  According to Cheryl Werner, “One of our daughters was thrown from her show horse right in the road when a helicopter flew right over them.”  Fortunately, she was not hurt, but that isn't to say there will not be injuries to people or horses before the work is completed.  This will entail another sizeable expense on the part of the family.  VELCO has also refused this expense.

    Inconsistencies have occurred throughout the company's dealings with the Werners.  At various times, VELCO representatives have verbally agreed to monetary compensation and mutually satisfactory access routes, only to be contradicted by the next person the Werners spoke with.  As Dave Werner said, “We agreed to things with a handshake.  This is how I do business.  Apparently they don't.”  Even with advance knowledge of the company's specific plans early in the process they could have set a number of trees aside to be cut, thus avoiding their destruction and loss.  But the company refused to do that, stating in correspondence that they didn't know why the Werners were asking, so no answer was forthcoming.

    Dave and Cheryl Werner have three specific goals in mind in sharing this situation with the public.  According to Cheryl, “We want a voice. We want our concerns heard and taken seriously.”  Secondly, they want property owners to the north of Middlebury to know what their experience has been and what those property owners might encounter.  And third, they don't want their customers to be discouraged.  Werner's Tree Farm has many loyal customers and Dave and Cheryl want them to know that everything possible is being done to make their visit to the farm a good one.

    As of press time, Kerrick Johnson, spokesman for VELCO, stated that the power cooperative will not be using the Werner driveway for access.  However, before they can finalize the route that they will use, approval must be granted by Vermont's Division for Historic preservation, to ensure that no sites of local cultural significance are disturbed, and also by the Army Corps of Engineers, because of adjacent wetlands.  VELCO is also in the process of submitting a proposal, through attorney Dumont, for monetary compensation for any trees that might have to be cut.  VELCO also plans to donate such trees to charity or if they are not suitable they will be mulched.  Johnson feels that the agreements should be acceptable to the Werners.  In any event, the Werners plan to conduct their business as they have done in the past, with the exception of tree tagging, and hope their loyal customers will understand.

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