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Condemnation of mountain land poised for trial

RUTHERFORDTON A rare, epic struggle between a wealthy conservationist and the rural electric cooperative that condemned a swath of his property landed before a judge in Rutherford County on Monday.

Cary video game developer Tim Sweeney is trying to stop Rutherford Electric Membership Corp. from stringing a 12-mile power line across his unbroken 5,300 acres of forest. The issue before the court is whether the co-op acted arbitrarily and capriciously – essentially, whether it has viable options other than crossing Sweeney’s land.

But Superior Court Judge Hugh Lewis delayed the trial’s opening Monday to weigh overnight a motion to dismiss the case.

Sweeney’s lawyers contend the Rutherford County court clerk didn’t have authority to appoint a panel to assess the fair market value of the 100-foot-wide corridor Rutherford Electric wants because part of the land is in neighboring McDowell County.

All three commissioners – a lawyer, a real estate broker and an appraiser – are from Rutherford County. They agreed the strip of land is worth $71,686.

A lawyer for Sweeney, who contends his property would lose $10.6 million in value if the power line goes through, argued that was a fatal flaw in Rutherford’s condemnation. Forrest Ferrell, himself a former Superior Court judge for 24 years, said state law doesn’t say that a single utility condemnation can cover more than one county.

“They should have brought it in two counties,” Ferrell told the judge. “Why they didn’t, I don’t know.”

Rutherford Electric’s lawyers counter that different sections of the law say condemnations by railroads and the N.C. Department of Transportation may cover more than one county. That makes clear, they said, that legislators intended for condemnations to cover multiple counties.

Sweeney’s land-holding entity, 130 of Chatham LLC, is “adamantly opposed to this power line,” said Bobby Sullivan, a Charlotte lawyer who represents the cooperative. “They also understand the law is not in its favor, the facts are not in its favor, and they’re trying to throw up roadblocks to stop it.”

Several appellant rulings support that view, Sullivan said. Separate proceedings in both Rutherford and McDowell counties would likely come up with different market values for the land, he said.

Lewis, who wondered aloud how to resolve apparent conflicts in the statutes, said he would rule on the motion Tuesday morning. If he denies the dismissal motion, opening arguments would begin in what’s expected to be at least a weeklong trial.

No matter the result, the case is expected to be appealed. The amount of compensation for Sweeney’s land, if it’s taken, would be a separate issue.

Both sides have hired publicists and top-shelf lawyers. Rutherford Electric is represented by Charlotte’s Parker Poe law firm. Sweeney, who has vowed to spend what it takes to keep the line off his land, has Asheville environmental attorney Billy Clarke and Steve Levitas, a former deputy state environment secretary, in addition to Ferrell.

Rutherford believes state condemnation law, which dates to the late 19th century, is clear in giving utilities the authority to take land for a public purpose. The co-op says the line is needed by 2015 or brownouts are likely in the rural Dysartsville community. Sweeney’s side says power use there is actually declining.

Sweeney’s forces insist cheaper routes are available, including one that follows an existing utility corridor. They have also organized public hikes of the 3,300-acre Box Creek Wilderness, which has been recognized for harboring some of the rarest plant communities in the state and is at the heart of the disputed territory.

His biologists are scheduled to testify that the power line would serve as entry route for invasive species and fragment a forest that has survived intact. Sweeney bought much of his 12,000 acres in the area at fire-sale prices after the recession killed development plans.

Rutherford Electric says its studies show the line would do no environmental damage, but has floated an alternative on the western edge of Sweeney’s land. Sweeney has rejected that option.

Sweeney’s lawyers wrote Rutherford’s directors last month, saying they could be liable for damages if it’s shown the cooperative misused money on the line. In recent days, color brochures mailed to the cooperative’s 67,000 members suggested they were “paying for a bad idea” by crossing Sweeney’s land.

Rutherford has filed a second condemnation petition to run the line through 595 acres Sweeney owns in neighboring McDowell County. It will be combined with the first condemnation for this week’s trial.

Henderson: 704-358-5051; Twitter: @bhender
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