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Property owner disputes AMED easement

Powell disagrees that encroachment is minimal

Lakemont property owner Roy Powell measures the easement claimed by a three-phase power line feeding new AMED headquarters, seen behind him. Mirror photo by Patrick Waksmunski

The Lakemont property owner who is contesting an easement that AMED has taken for a power line the organization needed for its new headquarters building doesn’t agree the encroachment was “minimal,” as stated previously by AMED Executive Director Gary Watters.

It’s true that Penelec only added a crossbar and two wires to an existing pole on the back — or alley — edge of Roy Powell’s property on the 800 block of Shand Avenue, so the company could bring three-phase power to AMED’s new building.

But the easement necessitated by those wires calls for property owners “not to construct, place, maintain or use structures of any kind, or plant shrubs or trees within 25 feet” of the wires, and it calls for Penelec to trim away all vegetation within that 25 feet, while prohibiting any change in ground elevation beneath the wires — all of which has led Powell to hire an attorney, who has appealed the eminent domain condemnation to Commonwealth Court.

Neighbors on Powell’s block who signed easements for the line already have sheds or pools that are grandfathered in, but “I may not be finished,” Powell said.

“It just limits what I can do,” he said. “No matter what happens in the future, I want to do what I want with the property.”

While his effort “is not about the money,” the easement could reduce the value of his commercially zoned lot if the opportunity arises to sell it for development, he conceded.

“I don’t want my property messed with,” he said. “It (the limitation) is not minimal.”

He would have preferred for AMED to have taken the more expensive course of burying the lines, or of bringing them to its building from another direction, he said.

“They’re bullies,” he said. “They go in and take what they want.”

Citing the ongoing litigation, AMED officials, including Watters, solicitor Dan Stants and board members, declined to comment at a recent board meeting, other than Stants’ observation that Powell lost his case against the condemnation in Blair County Court.

Powell’s legal team is challenging the right of AMED, a municipal authority that operates under the Municipal Authorities Act, to exercise eminent domain for transmission lines.

Based on the state’s Title 1, the interpretation of eminent domain laws is “subject to strict construction,” and the Municipal Authorities Act doesn’t explicitly grant authorities the power to condemn property for transmission lines, although it allows for condemnations for public buildings and power plants, Powell’s lawyers, Michael Faherty and Anthony Corby, argue.

Moreover, even if AMED were a public utility, it would be barred statutorily from condemning land within 100 meters of a dwelling by the state’s corporation law, and Powell’s house is much closer to the power line than that, his lawyers argue.

That statutory prohibition may indicate the reason AMED sought the easement instead of Penelec. AMED plans to give the easement to Penelec eventually because Penelec is permitted to place transmission lines so close, according to Powell’s lawyers.

“It is Penelec’s responsibility to secure any property rights required for the transmission of electricity and AMED’s condemnation is an attempt to subvert the law of this Commonwealth,” they wrote in one of two briefs submitted to Commonwealth Court. “AMED is trying to do something that Penelec itself is unable to do.”

Penelec disagrees in principle that AMED’s seeking the easement is irregular.

“Any party that requests a service line extension where new right-of-way is necessary must both secure the easement and pay any associated costs,” Penelec spokesman Todd Meyers wrote in an email, speaking not of the Powell case, but generally. “The responsibility falls to the customer requesting the electric service.”

As an authority, with condemnatory powers matching those of the municipalities that created it — Altoona and Logan Township — AMED can take property for a transmission line by implication, because it makes no sense to allow authorities to condemn for a public building but not for easements necessary to bring power to the building, Stants argued in a brief filed with Commonwealth Court.

Third class cities can condemn property for the erection of electric power and light plants and public buildings, and “it necessarily follows that this power would grant authority to condemn for the purpose of erecting transmission lines,” he stated.

Because AMED isn’t a public utility corporation, the prohibition against those corporations placing transmission lines within 100 meters of a dwelling is irrelevant, Stants wrote.

AMED didn’t offer compensation when it first asked for the easement, Powell said.

It didn’t offer compensation when it asked a second time, he said.

It offered $100 the third time it asked, he said.

The wires were actually strung in mid-November.

“They’re trespassing,” Powell said.

He has called the police, but the police have said “nobody owns the air,” Powell said.

Powell disagrees with that assessment.

Power line easements preclude building permanent structures or planting trees or tall shrubs because “we don’t want anything encroaching on our electrical clearances to safely operate power lines or obstruct our ability to access the lines for maintenance or repairs,” Meyers wrote, again speaking generally.

In Blair County Court, Judge Timothy Sullivan overruled Powell’s preliminary objections to the taking, finding the easement for a power line needed for its new building “is a proper exercise of AMED’s power to condemn,” and that the prohibition against stringing a transmission line within 100 meters of a dwelling — Powell’s house is about 10 meters away — doesn’t apply, because AMED isn’t a public utility corporation.

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