“We want answers”

Anti-power line rally draws large crowd

Lazaro Aleman
ECB Publishing, Inc.

About one hundred people crowded the annex of the United Methodist Church in Waukeenah last week to hear an imminent domain attorney tell them how they might fight the high-voltage power line that Gulf Power is proposing to run across the county.
The residents, whose properties and sometimes very houses along the Waukeenah Highway and Tram Road stand to be impacted by the proposed 161-kilovolt transmission line, wanted answers about their rights vis-a-vis the power company. Equally important, they wanted basic information about the project, which they said Gulf Powers wasn't providing.
Attorney Michael Tomkiewicz, of Gray Robinson Attorneys in Tallahassee, didn't disappoint them on Thursday evening, April 25, sharing his expertise on eminent domain and regaling them with stories of his various battles with the power company.
First, however, the residents heard from Deborah Craig, a Waukeenah resident and Leon County Commission aide, and Jefferson County Commissioner Stephen Walker.
Craig related recent votes by the City of Tallahassee and Leon County commissions, which essentially put NextEra Energy on notice that the two government entities want more information and transparency relative to the project. NextEra Energy is the parent company of Florida Power and Light and Gulf Power.
Craig's basic message to the group was that “the issue would be decided in the court of
public opinion.” She encouraged the residents to flood NextEra officials with emails, two of whose addresses she provided.
Walker, meanwhile, told the group that he would be bringing up the issue before the Jefferson County Commission on Thursday evening, May 2. He suggested that NextEra's External Affairs Director Timothy Bryant would be at the meeting, which begins at 6 p.m. in the courthouse annex off Water Street.
Tomkiewicz, in his turn, explained how eminent domain works and how property owners could best protect their interests in the eventuality of a quick taking. Eminent domain is the power granted to government agencies, utility companies, private corporations and others to take property for the public good upon compensation to the owner.
Tomkiewicz said that in an order for an entity to take land they had to meet three requirements. The taking authority, he said, must prove that the action served a public purpose, that it met the legal necessity, and that the property owner was being fully compensated.
He said the first one was out in terms of challenging Gulf Power's takings, as utilities serve a public purpose. And the third didn't really kick in until after the taking, when the valuation of the land was determined in court, he said.
“Legal necessity is where it's at,” Tomkiewicz told the audience.
“Utilities have large discretion to choose the route they want,” he said. “To stop them from a legal perspective, you have to prove that they abused their discretion in selecting the route.”
In other words, what alternative routes had been considered? Had the environmental impacts of the selected route been considered? What were the justifications for the route chosen?
So far, Tomkiewicz said, Gulf Power wasn't providing any answers.
“Gulf Power's response is we can't tell you about the project because we're still evaluating things,” he said.
Yet, while supposedly evaluating routes, Gulf Power personnel were approaching residents and trying to gain easement along Tram Road, he said.
“If you're considering alternative routes, why are you acquiring right-of-way,” Tomkiewicz said. “It's a very curious thing.”
Unfortunately, he said, utilities companies had the power to do quick takes and argue the valuation of land in court afterwards. And unlike other entities that enjoyed eminent domain, they tended to operate in secrecy, he said.
In fact, Tomkiewicz said, many property owners hadn't learned about the transmission line until Gulf Power personnel had approached them about gaining easements across their lands. And others had only learned about the project because they had become curious about what surveyors were doing in their neighborhoods and had asked questions, he said.
“We have to get the power company to the point where it will have to answer the questions,” Tomkiewicz said, adding that this would occur during the court phase, when the valuation of the land was being determined and the property owners' attorneys got a chance to depose Gulf Power's people.
Until then, he said, it should be “all out war.” The more noise people made, the more difficult it would make it for Gulf Power, he said. Power companies, he said, looked only at the bottom line when deciding how to route a line from point A to B.
“You have to tell them it will become expensive,” he said. “You have to talk to them in their own language. Make it expensive for them. The more attorneys you hire, the metrics change.”
He told the the residents that they were fortunate to live in Florida, one of only three states that protected property owners' rights in eminent domain proceedings. In Florida, he said, unlike in most other states, property owners got full compensation for their lands, not just compensation.
In Florida, moreover, the property owners didn't have to pay for their attorneys.
“Florida law says the fees for the attorneys and experts come from the condemning entities,” Tomkiewicz said. “Our benefit as attorneys is calculated based on what we get for you. The more money we get for the taking, the more money we get for ourselves.”
Utility companies, he said, believed in paying solely for the easement, not the impact on the rest of the land. But when the matter went to court, he said, the attorneys for the property owners would have experts do analyses and appraisers that took into account the total impact on the remainder of the property, including the removal of trees and buffers, market depreciation, potential health risks from the transmission line and other factors.
“Because when you factor in the market fear, the potential of leukemia and other damage into the analysis, the impact on your property can be 20 to 65 percent higher,” Tomkiewicz said.
He cautioned property owners not to sign leases without doing the due diligence, reminding them that once the power company gained the easement, it could conceivably install even higher voltage lines later and the property owner would have no say in the matter.
“The terms of the lease are very important,” Tomkiewicz said.
He left the audience with a final thought.
“The more lawyers you hire and the metrics change,” he said. “And you don't pay me. I front all the cost and I get paid by the condemning authority. My advice to you is to get a lawyer.”