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Shadow Flicker release contract  

Author:  | Contracts, Health, Human rights, North Dakota, Property values, Siting

Jerry Lien
North Dakota Public Service Commission
April 16, 2010

Greetings Jerry,

I appreciate your attention to this matter of the effects of living next to wind turbines. As was discussed in our phone conversation, Next Era Energy is not offering to repair the damage or fix the problem of the noise and shadow flicker imposed on our home, business and property. They merely want to pay us to accept it. They say we can use the payment to fix the problem ourselves. In order to receive the payment, we must accept this contract as offered, which I have attached to this letter [below]. This contract, as you can see, is a release for the company to negatively affect us. Furthermore, this contract has more wording in it about keeping quiet about the whole issue than solving the problem. Also you can see that it will be binding on us and our property in any future issues.

$15,000 as a payment is not going to fix this problem. We did not ask for money from this company but requested a relief to the problem at hand. Scott Scovill from Next Era, suggested for us to buy trees with the money. Trees will not block the effects because they are not tall enough and may take up to twenty years before they would grow even fifty ft. tall. One solution we suggested was to turn the offending turbines off only during the time they cause shadows. That suggestion was answered by Scott bluntly saying “we’re not shutting them off”. Since then Scott or any other Next Era representative has not returned our phone calls.

Mary Ann and I cannot sign on to a contract of this nature. Our attorney advises against it as well. We are not willing to release to the company our property and enjoyment of our home so they can cause noise, shadow flicker, interference, diminishment of property value and the effects acknowledged in their contracts. We are now suffering from these problems as a result of the decision to allow this irresponsible siting of wind towers too close to our farm.

By reviewing the project you can see there are about four or five turbines to the east of our farm that are causing blinking shadows up to and hour and a half per day for at least 12 weeks of the year. The shadow effects across the windows of our offices are severely disruptive to our business.

How does the Public Service Commission plan to deal with our issue? Is this going to be allowed in every wind farm project in the future? Is it going to be allowed that a large out-of-state company negatively impact a local business? Are the residents of this state expected to sell – (quoted from the contract) “the ability to use or enjoy your property, nuisance, injury or harm to persons, anxiety, suffering, mental anguish and loss of ability to enjoy life”?

I would like a response to these questions.

It has been brought to my attention that Next Era representatives have been spreading a lie that we knew this wind farm project was planned before we purchased our property here in Griggs County. This is a false statement and can be proven. We were living on our farm when we were invited to the first meeting of this project.

I request that you make this contract and my letter part of the public record.

Jim Miller

[[[[ ]]]]


THIS RELEASE (“Release”) is made as of the _____ day of _____________, 2010 by and between Ashtabula Wind II LLC, a Delaware limited liability company (“Company”) and __________________________________, (“Owner”) (hereinafter collectively the “Parties”) upon the terms and conditions set forth below:


WHEREAS, Owner is the owner of a certain tract of land located in Griggs County, North Dakota legally described on the attached Exhibit A (“Property”) and incorporated herein; and

WHEREAS, Company owns and operates the Ashtabula Wind Energy Center (“Wind Farm”), a wind farm which is adjacent to the Property; and

WHEREAS, Owner notified Company that they are experiencing problems with shadow flicker at their residence on the Property.

NOW THEREFORE, in consideration of the mutual promises and agreements set forth herein, the Parties hereby agree, as follows:

The recitals are true and correct and are incorporated in this Release by reference.

Company shall pay to Owner the one-time amount of Fifteen Thousand Dollars ($15,000.00), payable on or before March 31, 2010, for any and all shadow flicker related to the Property, caused or alleged to be caused by the Wind Farm stemming from, related to or attendant to the operation of the Wind Farm by Company, its parent companies, affiliates, successors, assigns, related companies including but not limited to interference with glare, shadow flicker, diminishment of the value of the Property, the ability to use or enjoy the Property, nuisance, and any injury or harm to persons, including but not limited to anxiety, suffering, mental anguish, loss of the ability to enjoy life, or any other harm or wrong, tort, intentional or negligent conduct stemming from, related to or consequent to shadow flicker from the Wind Farm whether claimed or not claimed, including all claims that could have been brought, or which hereafter might be brought by Owner or any of their successors and assigns.

The matters settled and released pursuant to this Release include all matters, claims, causes of action, and disputes of any nature whatsoever within the authority of the Parties (including third-party claims, indemnity claims, contribution claims, direct and derivative claims, and any other claims held in any capacity) whether or not fully accrued, relating to or arising out of the interference on the Property. The foregoing matters described in paragraph 2 are referred to hereinafter in this Release as the “Released Matters.”

The Parties, each for itself and its directors, officers, agents, and/or representatives, hereby expressly and unconditionally release and discharge one another, and their respective directors, officers, agents, representatives, employees, agents, successors and/or assigns, from any and all obligation, liability or responsibility arising from or as a result of the Released Matters.

The execution of this Release shall not be construed as an admission by any Party as to the validity or invalidity of any other Party’s position with reference to the issues resolved in this Release and neither party shall, directly or indirectly, seek to take or advance any position before any court, agency, or administrative tribunal, predicated in whole or in part on any term or condition of this Release except in connection with an action to enforce this Release or the terms or conditions thereof. The fact of settlement, the amount, nature of terms of the Release, and this Release are to are to remain strictly, totally and completely confidential and any breach of the terms of this Release shall entitle the non-breaching Party to seek all equitable relief as well as monetary damages from Owner. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other party, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. Either Party, if approached, has the right to state “we had an issue and that the issue has been resolved to our satisfaction.”

The Release may not be modified or amended except by a written instrument signed by all the Parties hereto.

In the event of litigation arising out of or in connection with the enforcement of this Release or any dispute arising out of this Release, the prevailing party shall be entitled to recover all reasonable attorneys’ fees, costs and incidental expenses incurred in connection with such litigation proceeding, including all costs or fees incurred on appeal.

The provisions of this Release shall be governed by North Dakota law.

8. This Release shall be binding upon the predecessors, heirs, successors, and assigns of each Party.

EXECUTED on the dates appearing below their signatures by the Parties’ undersigned officers, duly authorized.

Ashtabula Wind II LLC,
a Delaware limited liability company

By: ________________________________________
Name: Dean R. Gosselin, Vice President
Date: ________________________________________

Owner: ________________________________________
Name: ________________________________________
Date: ___________________________________

This material is the work of the author(s) indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this material resides with the author(s). As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Queries e-mail.

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