NEWPORT CITY – The owner of land leased for the Lowell wind project is seeking to counter-sue Don and Shirley Nelson over their claim to part of the property.
The Nelsons say they own a piece of the ridgeline where two turbines and a key section of ridgeline road is located for the wind project.
The retired Lowell farmers sued Green Mountain Power last fall, seeking to have a Superior Court judge grant them rights to the property in an attempt to block construction of the access road, ridgeline road and turbine sites. This spring, the Nelsons asked the presiding judge for permission to also sue Wileman and his companies.
Last week, Moose Mountain Forestry, which owns the ridgeline property, and Moose Mountain Wind, which leased the property to GMP, filed a response and counterclaim, which the judge has yet to allow.
Moose Mountain Wind and Forestry ask that the judge dismiss the Nelsons’ claim and find that the Nelsons and their guests trespassed on the property and interfered with a business relationship with GMP.
The counterclaim also calls the Nelsons’ lawsuit a nuisance and their claims a slander against Moose Mountain’s title to the land. The counterclaim also says the Nelsons acted in bad faith, after knowingly signing an agreement that established property lines 10 years ago.
Moose Mountain is asking for compensatory and punitive damages.
The Nelsons say GMP, Moose Mountain Forestry and GMP’s drilling and blasting contractor trespassed, caused a nuisance, intentionally inflicted emotional distress and should be liable for ultra hazardous conduct.
They asked the court to declare that they own the ridgeline property in dispute and claim compensatory and punitive damages of their own and attorneys’ fees.
If they win the lawsuit, the Nelsons would own an area that is the key access for GMP to most of the wind project site – right where the access road meets the crane path. They would also own the sites of turbines six and seven in the middle of the 21-turbine project.
The case won’t make it to trial until the fall of 2013.
GMP took the Nelsons to court last fall when the Nelsons allowed and encouraged friends to protest the ridgeline construction from their mountainside property.
The judge issued a preliminary injunction in favor of GMP, despite the Nelsons’ counter-suit, that gave GMP authority to blast near the Nelson property line.
The Nelsons, at hearings in Superior Court in Newport City, presented evidence to show why they believe they own the property at the top of the access road.
The Nelsons’ attorney says that “Moose (Mountain) misrepresented to GMP the location of its common boundary with the Nelsons … and GMP misrepresented to the Public Service Board the location of that same boundary.”
The Nelsons’ motion states that Moose Mountain Forestry and Wileman knew that GMP wanted the ridgeline for the wind project. Moose Mountain, according to the motion, had a surveyor move the proper boundary line “well to the east” of where it should be “in violation of the Nelson property rights and in wilful disregard of accepted principles of surveying and created a false appearance that Moose owned more land in that area than it did.”
Attorneys say Moose Mountain Wind, which owns the easement rights to the Moose Mountain Forestry land, deny allegations by the Nelsons that they allowed trespassing on Nelson property and take on the Nelsons over a property deal they cut with Wileman 10 years ago.
Wileman had the ridgeline property surveyed in 2002. The boundary line between a part of the Nelson property and the Wileman property “could not be determined based on evidence then able to be located on the ground to the complete satisfaction of the Blais Surveying Company,” according to the counterclaim by Wileman’s companies.
On or about May 23, 2002, Wileman and the Nelsons “executed an agreement as to the location of the property line” between their properties in that area.
The resulting survey was recorded June 6, 2002 in the Lowell land records.
“The Nelsons have never challenged this agreement or the location of the agreed-upon line,” according to the counterclaim against the Nelsons.
In a survey done in March of this year, the corner of the line was found to be closer to the Nelson property than originally estimated, the counterclaim states.
In the meantime, Wileman through his companies, leased the land to GMP for the wind project in May 2008. The Nelsons knew about the plans, participating in the hearings over the project before the Vermont Public Service Board, Wileman’s attorney notes.
It wasn’t until after GMP received its certificate of public good in May 2011 and began construction in September 2011 that the Nelsons filed a lawsuit against GMP over the boundary line.
The Nelsons did not file a claim against Wileman and his companies until April of this year.
Wileman’s attorney asks for declaratory judgment.
“Declaratory judgment is appropriate here because it will terminate the controversy between the Nelsons and (Moose Mountain) Forestry and Wind and remove uncertainty.
“This controversy between the Nelsons and Forestry and Wind involves the threat to injury to Forestry and Wind’s protected property rights.”
The judge, Martin Maley, has to allow these counter-suits.
The case is expected to go to trial in the fall of 2013. GMP expects to have the turbines operating before the end of this year.
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