Are wind lease easements enforceable in a court of law? What if you had children that were experiencing problems as a result of living in close proximity to wind turbines?
Imposing these conditions upon a child because a parent has agreed to cooperate for financial considerations may be tantamount to child abuse.
If the developers do not inform lease holders of the potential consequences would the wind developers be culpable ?
Read the excerpts from the Acciona easement that I have posted. Acciona's easement denies the leaseholder the right to bring any complaint, suit or action or intervene in any investigation or inquiry. Additionally, there is an easement for noise and setbacks etc...
Is this enforceable?
Windpower Facility Effects Easement. AND the Waiver of Setback and Setback Easement.
The Windpower Facility Effects Easement.
ii) Windpower Facility Effects Easement...Grantor hereby grants Grantee a perpetual easement (the “Windpower Facility Effects Easement “)
[A perpetual easement is that type of easement, which is to last without any limitation of time. It is a right, which a person has on the property of another person, which to an extent is permanent. ]
for any audio, visual, view, light , noise, vibration, air turbulence, wake, electromagnetic or other effect of any kind or nature whatsoever resulting , directly or indirectly from the construction instillation, maintenance or operation of Wind Power Facilities in the vicinity of the property; to generate and maintain audible noise levels on and above Property wherever originating at any or all times of day or night; and to cast shadows and reflect glare onto the property, whether intermittent(flicker) or constant , from Windpower Facilities wherever located, and agrees not to bring any complaint , suit or action or intervene in any investigation or inquiry by any person or entity with respect thereto.
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Waiver of Setback and Setback Easement
(iii) Waiver of Setback and Setback Easement. Grantor hereby grants Grantee a perpetual easement (the “Setback Easement”) pursuant to which Grantor consents to Grantee is siting of Windpower Facilities at any location upon property near the Property and by which, to the fullest extent applicable and permitted by law, this means that Grantor waives enforcement of any and all setback requirements related to the siting of Windpower facilities upon property in the Vicinity of the Property , including Setback Requirements applicable to the Windpower Facilities from lot lines, residents and other improvements, consents to setbacks for the Windpower Facilities being less than required by such Setback Requirement and agrees not to bring any complaint, suit or action or intervene in any investigation or inquiry by any person or entity with respect thereto.
Grantor agrees to use commercially reasonable efforts to assist , cooperate and participate in any proceeding and petition prepared by grantee in connection with any modification or variance to an existing siting or Setback Requirement.
Further, if so requested by Grantee, Grantor shall, without demanding additional consideration therefor,
(i) Execute (and if appropriate cause to be acknowledged) any setback waiver, setback elimination or other document or instrument reasonably requested by Grantee in connection therewith.
Without limiting the generality of the foregoing, this agreement shall be deemed a “setback agreement” For the purposes of the Town of Cape Vincent Wind energy facility law.
links below to Acciona wind lease and easement
lease agreements.
lease easement
8 comments:
According to all the laws I've found no one has the power of eminent domain to land not leased to these people. According to the Jefferson County and State Attorney, no one has the power to take any land by force. That was one tactic they used to trick people into signing saying they would just do it by eminent domain. Do the towns even have that power in this situation? Or do the crooked corporations just figure they'll do what they please and force owners to court over land theft? If they had that power, why would they obtain leases and attempt to buy a town board? I can't forgive those who signed leases for their stupidity, and I especially can't forgive thise who sold their position as board members. May they all rot in hell. Their wind leases are enforceable for at least five years, and they stand to lose a lot more if they default. If they even try to sell, the corporations still own the lease and it remains in the owner's name even after the property is sold.
Also, the corporation must be given first right of purchase. If you read ACCIONA's prospectus, they are heavily involved in "aquiring" land. They go so far as to consider an easement as a real estate transaction where transfer of ownership is simply assumed by them. People who signed those leases are absolutely beyond morons. They must have looked at the demographics and laughed when they read the part about education. How ironic that CBC is right across the border. A far more educational country than one where the Beverly Hillbillies, or maybe Jerry Springer, was the favorite program for drop outs, as here in the US.,pathetic.
I'm sure the answer to your question is it's a done deal. These contracts are similar from wind company to wind company. They've used them for years in many different locales in the U.S. I think any lease holder who tries to get out of a lease once these things are up is peeing into the wind to try and have it removed.
Another version of the question for the town is should the town's wind ordinance allow people to forgo setback and noise protections for cash by negotiating an easement with the wind company? The answer might be yes for two consenting adults, but what about if they have a family? If a parent cares less about impacts, doesn't know anything about them, but only sees the benefits of some quick cash, should the town allow their children to be threatened by ignorant parents when developing their wind ordinance? Big question and I wonder if it will get due consideration.
Under circumstances of children suffering the consequences of bad wind decisions, who is responsible? The wind companies, the parents or the town?
They would have a “shared responsibility” under the law. The town should increase its liability insurance
I guess all this depends on your perspective. If you have the opportunity for a big pay day, then you can rationalize and justify some vague, cloudy threat to your kids. If you are a neighbor who will not receive any due compensation and you have some young children, you should be raising hell over the issue of turbine noise. But, can you imagine the T.I. School Board setting the example when they tried to install a turbine on school property. The small turbine that was considered for the school may have had minimal impacts, but it set a terrible example for the community - turbines and kids go together.
P.S. Any one who says turbines aren't noisy because I've sat under one at Maple Ridge is an idiot. Try sitting under one at night when the noise wolf comes out to howl. Then think of saying good night to your kids and them asking you to stop the noisy mommy. This isn't a joke, it's a real life situation.
This agreement basically says, "we own you for as long as we seem fit."
If a company is going to ass-rape me, get me drunk first. At least by me lunch.
"There ain't no such thing as a free lunch"
I know a family at Maple Ridge whose child askes to have the furnace turned up at night so the furnace will mask the turbine noise so they can get some sleep.
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