Appeals court reverses Rutherford power-line ruling

The N.C. Court of Appeals has sent back for trial a Rutherford County electric cooperative’s attempt to run a power line across a conservationist’s land.

Rutherford Electric Membership Corp. moved to condemn land in 2013 that is part of the 5,300-acre Box Creek Wilderness, owned by Cary video game developer Tim Sweeney.

Sweeney, who owns thousands of acres across North Carolina, fought back. His lawyers argued that Rutherford ignored alternative routes for the line.

A trial was set to begin a year ago on whether Rutherford Electric has the right, and the need, to build the line. But a Superior Court judge abruptly dismissed the utility’s petition.

The Box Creek land lies in both Rutherford and McDowell counties. Judge Hugh Lewis ruled that the electric co-op had filed a condemnation petition only in Rutherford County.

The appeals court unanimously reversed that order Tuesday and sent the case back to Superior Court.

The ruling said Lewis should have allowed the cooperative to amend its petition and present the part of its case related to the Rutherford County portion of the land.

“We’re pleased that the matter has been sent back for trial, and we’re prepared for trial,” said Charlotte attorney Edward Poe, who represents Rutherford Electric.

Sweeney said he’s considering whether to ask the N.C. Supreme Court to review the appeals court ruling.

Sweeney said he has offered to reimburse Rutherford for the cost of easements it has purchased if it agrees to run the line around his property. He said he has also offered an alternative route that crosses only the northwestern edge of Box Creek.

“As much as I hate to see any damage to the natural area, this would be much preferable to REMC’s condemned route, which cuts through the heart of wilderness for 2.5 miles,” Sweeney said by email.

Box Creek has been designated a state Significant Natural Heritage Area for its rare plant communities and unbroken topography. The power line would cut a corridor 100 feet wide.

The case is unusual because the power of electric providers to condemn land has long been part of state law. Most litigation is about the price to be paid landowners, experts say, not whether condemnations should be allowed.

Compensation is a separate issue in the Box Creek case. A court-appointed panel from Rutherford County has placed the fair market value of the easement at $71,686. Sweeney contends the line would devalue his land by $10.6 million.

In a separate petition, Rutherford Electric is also trying to condemn Sweeney land that is entirely in McDowell County.