August 29, 2012

Wind energy farm accused of violating easement agreement

Sanilac County News | 2012-08-29

A Lexington man is suing a wind energy firm in Sanilac County Circuit Court, claiming the company violated the terms of the easement agreement for his Marion Township property.

Reginald E. VanSickle is suing Michigan Wind 2 LLC and Atwell Group LLC. He claims: breach of easement agreement; fraudulent misrepresentation; innocent misrepresentation; violation of the Michigan Consumer Protection Act; trespass; and nuisance.

“Exelon Generation’s policy is not to comment on pending litigation. However, I can confirm that Michigan Wind 2, LLC has received a copy of a lawsuit filed by a landowner and it is currently being reviewed. Michigan Wind 2, LLC and Exelon Generation value our relationship with the community and the landowners we partner. We would remain optimistic that any pending lawsuit is resolved in an amicable matter,” stated Robert A. Judge Sr., mid- Atlantic regional manager Power Communications.

Atwell Group Marketing Director Keligh Williams said, “we are not in a position to comment at this time”.

According to the lawsuit, VanSickle signed a wind park easement agreement granting Michigan Wind 2 easements to his property on Oct. 20, 2010, after telling Atwell’s agent he wanted specific exclusions. The agreement revised and eliminated easements for turbines, their towers, foundations, roads and bridges, and included language stating the easement was limited to underground transmission only. VanSickle also signed a memorandum of wind park easement agreement in which he forgot to mention the reference to roads and bridges. However the terms stated that if there were any differences between the memorandum and the agreement, the agreement prevails.

The lawsuit maintains the wind company and Atwell then recorded a memorandum which varied from the one he agreed to with the county register of deeds.

VanSickle stated that while he was out of state the following summer, an excavator contractor hired by the wind farm made a road across his farmland approximately 110 feet wide and 2,600 feet long.

When VanSickle checked the memorandum recorded with the county, he discovered it did not include the revisions he added in 2010. However, the copy the company sent him did include his revisions to the standard agreement.

The lawsuit claims Michigan Wind 2 has acknowledged that its August 2011 road installation was a violation of the agreement.

VanSickle claims he lost the full use of 89 acres of farmland, which has interfered with his ability to properly rotate his crops and farm on an east/west basis. In addition, he will have to spend a substantial amount of money to restore the area to farmland, as well as other damages.

He is asking the judge to declare the company’s version of the agreement and memorandum void and unenforceable. VanSickle also wants a judgement for all actual and treble damages, as well as costs, interest and attorney fees.

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