Marcia A. Brown Attorney at Law
Environmental Law § Utility Law
September 9, 2019
VIA ELECTRONIC AND MAIL DELIVERY Pamela G. Monroe, Administrator N.H. Site Evaluation Committee 21 South Fruit Street, Suite 10 Concord, NH 03301
Re: Docket No. 2015-04 Seacoast Reliability Project Motions for Enforcement and Reopen Record
Dear Administrator Monroe:
Enclosed please find for filing, Ms. Donna Heald’s emergency motion for enforcement at 220 Longmarsh Road and motion to reopen the record.
This filing is also being distributed to the electronic service list for this proceeding. Thank you in advance for your assistance with this filing.
Very Truly Yours,
Marcia A. Brown
cc: Electronic Service List for Docket No. 2015-04.
20 Noble Street § Somersworth, NH 03878-2621 603-219-4911 § [email protected] § www.nhbrownlaw.com STATE OF NEW HAMPSHIRE SITE EVALUTION COMMITTEE
Docket No. 2015-04
Seacoast Reliability Project (Application of Public Service Company of New Hampshire d/b/a Eversource Energy for a Certificate of Site and Facility for Construction of New 115k Transmission Line from Madbury Substation to Portsmouth Substation)
MOTION FOR ENFORCEMENT AT 220 LONGMARSH ROAD AND MOTION TO REOPEN RECORD
Donna Heald, an intervenor in the above proceeding hereby moves the Site Evaluation
Committee (“Subcommittee”) to, pursuant to PART Site 302, to enforce commitments made by
Public Service Company of New Hampshire d/b/a Eversource Energy’s (“Eversource”) to Ms.
Heald and the Subcommittee concerning pre-construction mitigation activities which Eversource now seeks to avoid, to find that Eversource, in taking a position now that is substantially different from what Eversource had represented to Ms. Heald and the Subcommittee at hearing, that Eversource has committed a material misrepresentation, and to enforce Eversource’s mitigation commitments pursuant to the Subcommittee’s authority under RSA 162-H:4, I(d) and
162-H:12, Site 103.01(c)(5) and PART Site 302. In support of this request, Ms. Heald states as follows:
Eversource Representations Made at Hearing
1. During the hearings in this matter, Eversource identified the extent its Seacoast
Reliability Project (“Project”) would adversely impact Ms. Heald’s property. Hearing Transcript to 10/26/18, Day 15 PM, at 100 (Ms. Heald learned through the hearing process that more of her plants would be in harm’s way than she previously understood.) Docket 2015-04 Page 2 of 14
2. Also, during the hearings, Eversource represented to the Subcommittee and Ms. Heald that it would: “conduct an inventory, develop a relocation plan and relocate [Ms. Heald’s] plant stock with one of these four mutually agreed upon nurseries.” Hearing Transcript of 10/26/18,
2018, page 224, lines 11-13. See also page 223 and page 224 in entirety. See page 222, lines
12-24. See also App. Ex. 229 (Eversource’s 8/3/18 letter outlining its agreement to conduct the inventory and relocation), page 2 wherein Eversource agreed “to retain a mutually agreeable commercial landscape company, at our sole expense” to inventory and relocate the plants to an area where the stock is expected to survive-which included a location on Ms. Heald’s property or
“to another nursery or amendable location off” Ms. Heald’s property. Id. Eversource also agreed to move the plant stock back to a “mutually satisfactory location after the Project is constructed.” Id. See also App. Ex. 234 (Ms. Heald’s response to Eversource’s data request concerning relocating the plant stock). Additionally, in App. Ex 146, pages 10 and 32, Mr.
Robert Varney testified that Eversource would be mitigating the adverse impacts on Ms. Heald’s gardening business. Ms. Heald accepted Eversource’s offer. See App. Ex. 234 and Hearing
Transcript at page 223-224.
3. Eversource further represented that it would relocate the pole that was closest to Ms.
Heald’s home further away from her home, by 50 feet. Hearing Transcript of 10/26/18, Day 15
PM, page 218, lines 4-10. Ms. Heald accepted the 50-foot pole relocation. Hearing Transcript of 10/26/19, Day 15 PM, page 231, lines 2-12; page 255, lines 5-24, page 256, lines 1-2.
4. The Subcommittee relied on Eversource’s representations in granting Eversource’ application. See Decision and Order Granting Application for Certification of Site and Facility,
January 31, 2019, at 260-261 (regarding conducting a plant inventory and relocating plants) and Docket 2015-04 Page 3 of 14
323-324 (regarding that the Applicant must “work in good faith with all affected landowners” and participate in the Dispute Resolution Process). Conditions contained in the Subcommittee’s order were expressly incorporated into the Order and Certificate at page 2.
5. This is not a matter of private property rights that would be outside of the Site Evaluation
Committee’s statutory subject matter jurisdiction. Cf. Gray v. Seidel, 143 N.H. 327 (1999). The legislature made “special provision” (RSA 491:7) for the Site Evaluation Committee to: “balance among those potential significant impacts and benefits in decisions about the siting, construction, and operation of energy facilities in New Hampshire” (RSA 162-H:1); “[d]etermine the terms and conditions of any certificate issued” (RSA 162-H:4(b)); and “[e]nforce the terms and conditions of any certificate issued under this chapter” (RSA 162-H:4(d) and RSA 162-H:12.)
The Subcommittee determined terms and conditions and incorporated its Order into the
Certificate.
6. Recently, Eversource has refused to conduct the inventory, relocate her plant stock, and to relocate the pole. See Eversource-Heald Correspondence 7/29/19 (Attachment A); 8/9/19
(Attachment B); 8/20/19 (Attachment C); 8/27/19 (Attachment D); and 8/30/19 (Attachment E).
Eversource’s reversal of its commitments regarding the plant stock means that the very evidence
Ms. Heald would need to participate in the Dispute Resolution Process will be destroyed.
Eversource’s reversal is also an afront to the integrity of the N.H. Site Evaluation Committee’s judicial process.
Commitments Are Conditions
7. It is settled law that representations made before decisional bodies are conditions even when they are not expressly stated in the approval document. See, Rye v. Ciborowski, 111 N.H. Docket 2015-04 Page 4 of 14
77, 81 (1971) (Representations made by an applicant seeking a variance from a Zoning Board of
Adjustment defined the scope of the uses allowed by the variance.) See, Dahar v. Department of
Bldgs, 116 N.H. 122, 123 (1976) (Court explained that Rye v. Ciborowski stood for the proposition “that the scope of a variance is dependent upon the representations of the applicant.”)
See, also 1808 Corp. v. Town of New Ipswich, 161 N.H. 772, 775 (2011) (Under New Hampshire law, “[t]he scope of a variance is dependent upon the representations of the applicant” impose an implied condition on the variance.) Here, the record reflects specific commitments made by
Eversource, as noted above. Therefore, even if more specific details of Eversource’s mitigation commitments are not reflected in the Subcommittee’s order and certificate, Eversource’s representations constitute enforceable conditions that Eversource cannot now retract.
Estoppel
8. A regulated entity which makes representations before a quasi-judicial body on how it would mitigate a regulated project and then freely recants those representations and commitments jeopardizes the integrity of the Site Evaluation Committee process. The doctrine of estoppel in this State prevents parties from engaging in such misleading conduct. Equitable estoppel “serves to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon.” Town of
Seabrook v. Vachon Management, 144 N.H. 660, 666 (2000). The elements of estoppel exist here: Eversource made representations and commitments to Ms. Heald and the Subcommittee, that Ms. Heald and the Subcommittee were ignorant of the fact that Eversource was not going to honor its commitments, Eversource’s representations were intended to induce Ms. Heald and the
Subcommittee to rely upon them, and Ms. Heald’s reliance upon Eversource’s representations Docket 2015-04 Page 5 of 14 are to her injury. See, Appeal of Kulacz, 145 N.H. 113, 116 (2000).
9. In addition, judicial estoppel “prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” In re
Pack Monadnock, 147 N.H. 419, 425-426 (2002) citing New Hampshire v. Maine, 532 U.S. 742,
749 (2001). The purpose of judicial estoppel is “to protect the integrity of the judicial process.”
N.H. v. Maine, supra at 749. Factors informing whether to apply judicial estoppel is whether 1) a party’s position must be “clearly inconsistent” with its earlier position; 2) the party succeeded in persuading the court to accept that party’s earlier position, so that it creates “the perception that either the first or the second court was misled”; and 3) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-751. See also In re Pack Monadnock, supra at 425-426. The N.H.
Supreme Court has applied judicial estoppel in agency settings. See, Eby v. State of New
Hampshire, 166, N.H. 321 (2014). In addition to the application of PART Site 302, Ms. Heald moves the Subcommittee to apply the doctrine of estoppel to the instant matter so as to prevent an injustice upon Ms. Heald and to enforce, pursuant to its authority under RSA 162-H:12,
Eversource to abide by the commitments it made at hearing.
Eversource’s Recent Position is Clearly Inconsistent with Representations it made at Hearing and Constitutes a Material Misrepresentation
10. In reliance on Eversource’s representations, this past spring, before her plants were coming out of dormancy, Ms. Heald reached out to a number of people to plan for the inventory process. See Attachment F (3/22/19 email communication with the N.H. Natural Heritage
Bureau and 5/1/19 email communication with Zachery Berger Associates, Ltd). The issue of Docket 2015-04 Page 6 of 14 payment arose. Id. This stymied her attempts to get the inventory underway when, as noted at hearing, it was critical that it be done during the entire growing season so that all plants could be inventoried at the appropriate time when they are visible and could reestablish their roots after being relocated. See Hearing Transcript of 10/26/18, Day 15 PM, page 101, lines 10-12. Ms.
Heald was unable, however, to ascertain from Eversource how it would pay the inventory team.
Ms. Heald was also unable to obtain from Eversource accurate details on what sections of the right of way would be disturbed and thus need to be inventoried.
11. Also in reliance on Eversource’s commitment to conduct an inventory, Ms. Heald met with Eversource on her property on June 17, 2019. As noted in Eversource’s agenda, the express purpose of the meeting was to review the “scope” of the “plant inventory/relocation”. See
Attachment G, 6/17/19 Agenda. This scope was reaffirmed in Eversource’s letter dated July
29th, page 2 (Attachment A), wherein it recounted that the objective of the site visit was to have
Eversource’s horticultural consultants “walk the length and width of the easement to assess your client’s gardening business for the purpose of relocating the plants during construction.” The scope of the visit also included delineating the boundaries of what sections of the gardening area would be disturbed so that Ms. Heald could see the breadth of the inventory that would be in harm’s way.
12. During the site visit, Ms. Heald discussed with Eversource’s consultant, the consultant’s qualifications. Ms. Heald quizzed the consultant on ferns because her plant stock included a large number of ferns and the consultant freely stated that she did not know ferns. Ms. Heald and the consultant discussed that the inventory would be a big undertaking, that it would take many people with different areas of expertise, and that it would need to involve a grid system so Docket 2015-04 Page 7 of 14 that plants could be properly counted and marked and that it would take a long time. There was no discussion that the site visit was to be considered the inventory, indeed, Eversource’s consultant told Ms. Heald that she would get back to Ms. Heald with a proposal on how the consultant would propose to proceed with the inventory and relocation. Ms. Heald informed
Eversource that another couple in the neighborhood had offered their property as a relocation spot, that it would likely be large enough for Ms. Heald’s plants, but that the site would require
Eversource to cut trees and provide power and a water source. Eversource stated it would look into the neighboring couples’ offer.
13. At no time at that meeting did Ms. Heald agree that Eversource’s consultant was
“mutually agreeable” to conduct the inventory, Ms. Heald hadn’t even received the consultant’s proposal yet. There was never any discussion that the site walk over would constitute an inventory. For this reason, Eversource’s statements that Ms. Heald agreed to its consultant and that an inventory was conducted are wholly, factually incorrect. This misrepresentation of facts serves solely to allow Eversource to evade the commitments it made at hearing.
14. A second individual accompanied the consultant, “Bob”, however, Bob expressly stated that he was not there to inventory plants but that he would only be moving the plants when the time came. In conclusion, Ms. Heald left the site visit with the understanding that the consultant would be providing a proposal for conducting the inventory and relocation-which the consultant said would be forthcoming in a week or two.
15. Instead of receiving the proposal, Ms. Heald received a letter from Eversource, over a month later, claiming that an inventory had been done and that Eversource would not be relocating any of the in-ground plants. This position is alarmingly inconsistent with what was Docket 2015-04 Page 8 of 14 discussed at the site visit. Furthermore, it is clearly inconsistent with the position and commitments Eversource made to the Subcommittee and Ms. Heald at hearing.
Reasonable Reliance
16. It cannot be said that Ms. Heald and the Subcommittee’s reliance on Eversource’s representations were unreasonable. As the record before the Subcommittee showed, there was no way to know that Eversource’s commitments were either improper, materially incorrect, or misleading. New Canaan Bank & Trust v. Pfeffer, 147 N.H. 121, 126 (2001). Eversource made its commitments with a full understanding of the evidence. Eversource was aware of the magnitude of the planting inventory. Ms. Heald specifically corrected Eversource’s undercalculation of the extent of her plant stock depicted in App. Ex. 230. Hearing Transcript of
10/26/18, page 252, lines 5-22. She also testified that the plants needed to be inventoried over the course of a growing season. Id. That was because if the plants are moved too late in the season, they would not likely survive. Attachment I, Propagating Plants-Primula Wanda, illustrates with pictures the difficulty of relocating plants late in the season when, without special care, their root systems won’t mature enough to over-winter in pots.
Detrimental Reliance
17. Eversource’s refusal to conduct the inventory and relocate Ms. Heald’s plant stock now imposes an unfair detriment on Ms. Heald. Without the evidence from the inventory, Ms. Heald is unable to pursue claims of damages. Eversource states in its August 20, 2019 letter
(Attachment C) that Ms. Heald can simply pursue claims under the dispute resolution process, but that is illusory. If Eversource is allowed to destroy the evidence of her plant stock, Ms.
Heald is, without question, unable to document the quantity of her plant stock and prove Docket 2015-04 Page 9 of 14 damages. The lateness of Eversource’s changed position compounds the detriment because, notwithstanding Ms. Heald’s attempts to get the inventory moving this past spring, evidence of early, spring plants has likely passed and moving plants late-season may result in plants not surviving without special care.
18. Detrimental reliance also applies to the Subcommittee. Eversource’s changed position has changed the facts the Subcommittee relied upon in balancing the potential significant impacts of the project with project’s benefits. RSA 162-H:1 and 16. Site 301.16. The facts underpinning that balance no longer exist and, therefore, compromise the integrity of the proceedings in this matter. The changed position constitutes a material misrepresentation which necessitates enforcement under 162-H:12.
Eversource’s Consultant Not Credible
19. In addition to reversing its position at hearing, Eversource has attempted to create a smokescreen of factual misrepresentations. These misrepresentations are replete in Eversource’s consultant’s memorandum to Eversource to such an extent that they render the consultant’s memorandum not credible (Attachment C). The consultant finds fault with Ms. Heald as a nursery, however, Ms. Heald made it very plain in her testimony that she is a grower and propagator. She is not a nursery. Ms. Heald has plant stock that is in the ground for later potting. See, DH Ex. 1 at 5-6. Eversource never took issue at hearing with Ms. Heald being a grower, yet now it has its consultant conflate Ms. Heald’s growing activities with a commercial nursery in order to get out of its mitigation commitments.
20. It is important to remember that the June 17th site visit was not a plant inventory; the consultant merely walked around the property and did not grid or count plants. Therefore, the Docket 2015-04 Page 10 of 14 conclusions that plants do not exist or have no value is wholly unsupportable. Since
Eversource’s refusal a week ago, Ms. Heald has produced the following rebuttal evidence:
A. Eversource’s consultant claims that Ms. Heald kept certain plant stock in containers and that she did not see any of these plants in containers. She bases this comment on Ms. Heald’s plant list (Attachment H), however this list was created by Ms. Heald to inform Eversource of the vast types of plant stock that she has amassed over her 40 years of gardening on her property and to inform Eversource of the space that would be needed for the relocation. The container size is how the market measures plants and thus, container size was used to estimate the equivalent value of that plant stock in the market. Ms. Heald has never represented that she kept all of her plant stock in containers. Some stock are in tray flats. Evidence of Ms. Heald’s in-ground plant stock and trays is demonstrated in Attachment K (Spirea latifolia alba); Attachment L (Lamiastrum Florentinum), Attachment M (Viburnum Acerifolium); (Attachment N (Monarda (Bee Balm); Attachment O (Helenium), Attachment P (Daylily), Attachment Q (Hostas); Attachment R (Ferns); Attachment S (Ground Cover); Attachment T (Herbs); Attachment U (Blueberries and other Fruit); Attachment V (Grasses); Attachment W (Comptonia-Sweet Fern). All of these plants have value in the market. An overview of her plant stock and her potted stock is seen in Attachment X.
B. Eversource’s consultant claims that certain plants have “no value in the horticultural trade” (Attachment C, Page 3). This position is directly refuted by the fact that plants on Ms. Head’s list have hyperlinks to where the plant appears in the market (Attachment H). All of Ms. Heald’s pictures attached to this motion are of plants with value in the market and which are used or will be used by Ms. Heald in the future.
C. Eversource’s consultant claims that she did not see 200 containers of the hosta, Parkwood Early Dawn, and that it too has no value in the market. In Attachment J (Hosta Parkwood Early Dawn), Ms. Heald demonstrates that this hosta is being grown in the ground, which provides better growing conditions than pots. This hosta has value in the market because it is a rare New Hampshire- developed hosta from famed botanist Joseph Parks. Ms. Heald is preparing to introduce this to the trade and is registering it with the American Hosta Society. This unique plant stock will be destroyed if not relocated.
D. Eversource’s consultant claims that Ms. Heald did not have Lamiastrum Florentinum, a ground cover. Attachment L clearly documents this plant stock exists and is part of Ms. Heald’s plant stock. Its value in the market is corroborated in Ms. Heald’s plant list. Docket 2015-04 Page 11 of 14
E. Eversource’s consultant claims certain plants are naturally occurring and therefore have no value. As illustrated in Attachment U (Blueberries and Other Fruit), Ms. Heald planted these fruit-bearing plants on her property for her consumption and sale. The position that these plants have no value is directly refuted by the hyperlinks in Ms. Heald’s plant list that show where they can be purchased in the market. The same holds true of Ms. Heald’s Comptonia Peregrina, commonly known as Sweet Fern (Attachment W, Comptonia Peregrina). It is not a fern but is a shrub used in natural landscapes and for decorations and is for sale in the market. Attachment M (Viburnum Acerifolium), shows more of Ms. Heald’s plant stock that is sold in the market.
F. Eversource’s consultant claims that the plants in containers “can be moved with little effort.” Attachment C, page 3. As described in Attachment X, (Issues with Plants in Pots), moving plants in pots is not easy. Rooted cuttings in pots, by this time in the growing season, have grown roots into the ground. To properly move these plants, the pots will need to be removed from the rooted plant, the roots separated, and then replanted into additional pots and overwintered in a greenhouse. The pot in the pictures in this Attachment contained 22 plants.
Destruction of Evidence is Imminent – Rule Waiver or Delay Needed
21. Construction on Ms. Heald’s property is imminent. On September 6th, Eversource informed Ms. Heald that tree clearing is slated to commence September 16th. For this reason, it is imperative that the Subcommittee act now. The plant inventory and relocation must occur prior to construction, otherwise Eversource’s construction will destroy 40 years of plant stock that Ms. Heald has amassed. This will result in a significant adverse impact to her business, her ability to earn future income, and her participation in any dispute resolution process.
22. Site 202.14(f) allows objections to be filed within 10 days, however, the expiration of the objection period exceeds Eversource’s expected construction date. For that reason, and because
Eversource’s late change of position has caused Ms. Heald detriment, Ms. Heald requests
Eversource’s objection period be this week or in the alternative order Eversource to delay its Docket 2015-04 Page 12 of 14 construction start date. Otherwise, Ms. Heald will suffer irreparable harm because the very evidence she needs to prove her damages will be destroyed by Eversource.
Conclusion
23. Justice demands that Eversource be prohibited from destroying Ms. Heald’s plant stock before it is inventoried and relocated with a likelihood of survival. The inventory and relocation of Ms. Heald’s plant stock and moving a pole by 50 feet were among the commitments made by
Eversource at hearing and which were recognized in the Subcommittee’s order. Ms. Heald is not asking this Subcommittee to enforce anything more than the mitigation Eversource committed to at hearing.
24. Eversource has made substantial mitigation commitments to other property owners along its project. It has agreed to underground its project from Gundalow Landing to Little Bay Road in Newington so as to avoid lawns and driveways, yet it has done an about-face on its commitment to mitigate at 220 Longmarsh Road. This situation illustrates the difficulties of when Eversource holds the purse strings and parties have no access to funds to prove their claims. Ms. Heald attempted to commence the inventory back in March, yet payment stymied that effort. If Eversource is allowed to retract commitments made before this Subcommittee, it not only results in a wholly avoidable detrimental impact to Ms. Heald and her ability to operate as a grower and earn future income, but it also directly compromises the integrity of hearings before this Subcommittee. For these and the above reasons, Ms. Heald urges the Subcommittee to enforce the commitments Ms. Heald and the Subcommittee relied upon.
25. The following parties assent to the relief requested: Vivian and Jeffrey Miller, Regis
Miller, Thomas and Yael DeCapo, Lawrence Gans and Anne Darragh, Durham Historic Docket 2015-04 Page 13 of 14
Association, Town of Newington and Keith Frizzell. Eversource objects to the relief requested.
The Counsel for the Public takes no position. The following parties did not respond prior to this filing: Conservation Law Foundation; Matthew and Amanda Fitch, Deborah Moore, Nick Smith,
Hellen Frink, Dog Shellfish Co. LLC, Dr. Mark Joyce, Conservation Law Foundation, Town of
Durham, and The Nature Conservancy.
Docket 2015-04 Page 14 of 14
WHEREFORE, for the foregoing reasons, Ms. Heald requests the Subcommittee’s urgent attention to this matter and for it to:
A. Open the record in this proceeding pursuant to PART Site 302 to accept, at a minimum, the attached additional evidence;
B. Enforce the commitments Eversource made to Ms. Heald;
C. Assess the costs of the Subcommittee for enforcement against Eversource pursuant to RSA 162-H:12, V;
D. Order Eversource, as a condition of its certificate, to pay Ms. Heald’s attorney’s fees in connection with this enforcement matter;
E. Grant Ms. Heald’s request for rule waiver or in the alternative, order Eversource to delay the start of construction until the inventory and relocation are conducted; and
F. Grant any other such relief as the Subcommittee deems necessary and appropriate.
Respectfully submitted,
Donna M. Heald
By Its Attorney
NH BROWN LAW, PLLC
Date: September 9, 2019 Marcia A. Brown, Esq., Bar No. 11249 NH Brown Law, P.L.L.C. 20 Noble Street Somersworth, NH 03878 (603) 219-4911 [email protected] I, Donna M. Heald, being first duly sworn, hereby depose and say that I have read the foregoing verified motion and the facts alleged therein are true to the best of my knowledge and belief.
Dated: September 9, 2019 Donna M. Heald
STATE OF NEW HAMPSHIRE COUNTY OF STRAFFORD
Sworn to and subscribed before me this 9th day of September, 2019.
JusticeU15'1 of the lee~ Pe~otary l'u4cK~~ My Commission Expires: Af Vr, 8-0Ct-3 ELISABETH G. t I hereby certify that a copy of this objection has been forwarded by electronic means to the electronic service list for this case. Date: September 9, 2019 ~~ Marcia A. Brown, Esq. Attachment A ADAM M, DUMVILLE Direct Dial: 603.230.4414 Ernail: [email protected] Adrnitted in NH and MA CLANE I I South Main Street, Suite 500 Concord, NH 0330 I MTonLETON T 603.226.0400 F 603.230.4448 Víq Electroníc Møíl July 29,2019 Marcia A. Brown, Esq. NH Brown Law PO Box 1623 Concord, NH 03302 Re Donna Heald Z?0Longmarsh Road, Durham, NH Response Required on or before August 2. 2019 Dear Attorney Brown: This letter summarizes Eversource's efforts to resolve Ms. Donna Heald's concems about the impacts of the construction of the Seacoast Reliability Project ("SRP or the "Project") on her property at220 Longmarsh Road, Durham, NH ("Property"). As you know, the New Hampshire Site Evaluation Committee ("SEC") has issued a Certificate of Site and Facility ("Certificate") authorizing construction of the Project. With construction scheduled to begin at or near the Property in early September, this letter reiterates the steps Eversource is prepared to take and respectfully requests that your client respond to this proposal on or before August 2,2019. In the absence of Ms. Heald's agreement by that date, the proposal will be deemed rejected and construction will proceed as originally described in the SEC Application. As you know, Eversource sent Ms. Heald a proposed settlement agreement on August 3,2018, which sought to resolve all outstanding issues with Ms. Heald. However, Ms. Heald did not sign or return the agreement, did not respond to the request for a meeting on August 7,2018 to ftnalize the terms of a settlement, and remained in the SEC proceedings as an intervener adverse to the Project. When the SEC record closed, Ms. Heald had not responded to Eversource's settlement offer and no settlement was reached.t Indeed, Ms. Heald filed motions and I The SEC Certificate does not contain any specific conditions that relate directly to your client or her property. While all of the general conditions of the Certificate certainly apply to your client and her property, the SEC did not impose any additional conditions or requirements at your client's property above and beyond those that apply generally to all properry owners along the Project route. Therefore, Eversource was not bound-as a condition of the Certificate-to comply with any of the proposed offers made to your client to reach a settlement agreement prior to the close of the SEC record. McLane Middleton, Professional Association Manchester, Concord, Portsmouth, NH I Woburn, Boston, MA McLane.com Page 1 97870\1478738 r Attachment A Marcia A. Brown, Esq Iúy29,2019 PageZ memoranda in opposition to the Project after the close of the record, requested a rehearing, and more recently filed an appeal at the New Hampshire Supreme Court. Since the issuance of the Certificate of Site and Facility, Eversource has continued to work with your client to proactively address her concerns to no avail. As you may recall, during the months of March and April, Eversource worked with her in an attempt to purchase her property and/or her gardening business, which was not successful. On June 17,2019, Eversource and its contractors met onsite with you and Ms. Heald to flag the edge of the right-of-way, the area for the work pad, the structure location (and potential 25-foot structure shift) and the area for the construction access road. In addition to Eversource's construction contractors, Eversource retained horticulture consultants Patricia Laughlin from Lorax Landscaping and Bob Goddard from Shady Hill Nursery to walk the length and width of the easement to assess your client's gardening business for the purpose of relocating the plants during construction. Location of Structure #F-107-90 Eversource has a valid Certificate to construct the Project as described in the SEC Application, Amendments, and Supplements and as depicted on the Environmental and Engineering Drawings dated July 16, 2018 and Ju|y27,2018 respectfully. However, Eversource remains willing to relocate structure #F-107-90 25 feet in whichever direction your client prefers, subject to receiving any and all necessary approvals. As mentioned to you on many occasions, Eversource cannot move the structure more than25 feet without unacceptable consequences. A 50 feet relocation of the pole was offered nearly 3 years ago, in June 2016, when the project was still in the design stage. In addition, at five field meetings (June 2016 (2 meetings), July 2016, September 2016, and July 2017) Eversource marked the edge of tree removal and the pole location. However, Ms. Heald did not provide Eversource with feedback on her preferred location. As recently as the SEC hearings, Ms. Heald confirmed that the proposed relocaûon was "unacceptable." After an extended period of time, without hearing anything further on the Eversource determined that the pole relocation could not exceed 25 feet without unacceptable consequences. This was documented in an email to you dated April 11,2019. However, Eversource remains willing to relocate structure #F-I07-90 25 feet in whichever direction your client prefers, subject to receiving any and all necessary approvals. Gardening Business Eversource's rights on the Property, as established by our easement granted to its predecessor New Hampshire Electric Company, by Sydney J. Langley on December 6,1949, recorded at the Rockingham County Registry of Deeds in Book 577,Page 468. Among other things, the easement grants Eversource rights to "enter upon and to construct, reconstruct, extend, repair, Page 2 97870\1478738r Attachment A Marcia A. Brown, Esq. Iuly 29,2019 Page 3 replace, maintain, operate, inspect and patrol its lines; and also the perpetual right and easement at any time, and from time to time, and without further payment therefor, to clear by cutting or use of chemicals, and keep cleared said strip of trees, underbrush, buildings and other structures, to pass along said strip to and from the adjoining lands for all of the above purposes, ... and to pass over the grantor's premises to and from said strip as reasonably required, together with the right to cut large trees adjacent to, but not within said strip." Your client acquired and owns the Property subject to Eversource's prior existing easement rights and has no lawful right to interfere with or obstruct Eversource's exercise of those rights. To the extent Ms. Heald has used the Eversource right-of-way to plant and maintain her nursery stock, that operation has been conducted without the express permission or sanction of Eversource. Therefore, your client's plantings within the right-of-way are at her sole risk. Your client has not executed a joint use agreement with Eversource in order to use the right-of-way for a gardening business. While we continue to try to avoid unnecessary damage wherever possible, Eversource cannot assure that the plantings will be unharmed and has proposed many mitigation measures to avoid and/or minimize impact for Ms. Heald's consideration. Indeed, Eversource has made multiple proposals to Ms. Heald since June 2016 to mitigate potential impacts to Ms. Heald's alleged plant stock, but Ms. Heald has not accepted any of these proposals. During our meeting on June 17 ,2019, Eversource's horticulture experts assessed the plants on the Property. During this meeting, Ms. Heald agreed that the horticulture expert hired by Eversource was, in fact, an acceptable 'oexpert" to assess the plants for relocation. The assessment revealed that most of the plants within the right-of-way are weeds or plants native to the area or are invasive species, which cannot be moved according to law. Moreover, it was evident that a majority of the plants that Ms. Heald noted during the site walk also grow on The Nature Conservancy Property across the street; therefore, the plants located on your client's property are not unique. In addition, your client has not provided Eversource with any evidence supporting the assertion that the plants in the Eversource right-of-way have a specific monetary value. By contrast, based on the assessment of the third-party expert your client's plants appear to have little, if any, value, and the quantity previously stated and provided as plant stock did not align with what was found in the field. Notwithstanding the foregoing, Eversource hereby offers to relocate any and all potted plants in the right-oÊway to another location on Ms. Heald's property. Based on the assessment of the horticulture expert, this does not include any plants currently in the ground within the right of way. In addition, Eversource offers to provide Ms. Heald a onetime settlement payment in the amount of $50,000 subject to Ms. Heald relinquishing her rights to file a claim in the dispute resolution process. In addition, and in compliance with the Certificate, Eversource will take all reasonable precautions, including but not limited to installing and using 16-ft wide timber mats, to avoid any potential temporary impacts to Ms. Heald's property during construction. Please let us know on or before August 2,2019 whether your client accepts this offer. If we do not receive a response, or Ms. Heald rejects Eversource's offer, Eversource will proceed with construction as planned and will move all potted plants from the right-of-way to a location Page 3 9'78'70\14787381 Attachment A Marcia A. Brown, Esq July 29,2019 Page 4 within the easement on Ms. Heald's property that does not interfere with the construction, operation or maintenance of the new line. Landscape Mitisation Plan Eversource will also continue to work with your client to reach an agreement on an acceptable landscape mitigation plan. This plan will include plantings that will mitigate the visual impact of the Project to Ms. Heald's home. Water Lines As previously discussed, Eversource has marked the location of your client's water well and water line and agrees to require its contractors to protect the existing water line from your client's water well to her home and plant stock during construction of the Project. To ensure constant access to potable water, Eversource will also voluntarily provide Ms. Heald with a source of emergency water in the form of a mobile water truck and/or tank during construction of the Project, regardless of whether there is damage to the well. As noted above, Eversource anticipates that construction will begin at or near the Property in early September. Eversource is prepared to take the steps detailed above to resolve Ms. Heald's concems and requests that your client respond to this proposal on or before August 2,2019. In the absence of Ms. Heald's agreement by that date, the proposal will be deemed rejected and construction will proceed as originally described in the SEC Application. Eversource looks forward to your client's prompt response. Sincerely, te\e,','* ü*3¿ Adam M. Dumville AMD:slb Page 4 978'70\1478738r Attachment B Marcia A. Brown Attorney at Law Environmental Law § Utility Law August 9, 2019 VIA ELECTRONIC DELIVERY Adam Dumville, Esq. McLane Middleton 11 South Main Street, Suite 500 Concord, NH 03301 Re: Seacoast Reliability Project Eversource Construction at 220 Longmarsh Road Dear Attorney Dumville: I have had an opportunity to discuss your letter of July 29th with Ms. Heald. Ms. Heald is disappointed with your letter. Your letter contains numerous factual misstatements and allegations of Ms. Heald failing to respond. Having represented Ms. Heald in this matter, I do not agree that I have not responded on Ms. Heald’s behalf to Eversource. I am not going to engage in an itemization of the misstatements, rather, I would like to focus on moving Ms. Heald and Eversource closer to a resolution of the uncertainties and concerns that surround construction on her property. Your letter shows that Eversource has no intention to conduct the inventory or move the plant stock. This is a disappointing and unacceptable change in Eversource’s position. The path laid out at hearing was that Eversource would conduct the plant inventory. See, for example, App. Hearing Exhibit 234. The June 17, 2019 meeting was to effectuate that path. At the meeting, Eversource’s consultant, Patricia Laughlin, admitted that her expertise was not expansive enough to cover the full scope of the plant stock and that she would get back to Ms. Heald with her proposal on how she would conduct the inventory and proceed to moving of the plants. Ms. Heald never accepted Ms. Laughlin as the sole expert to handle this project. Ms. Heald only agreed to meet her to determine how she might proceed with the project. We have been waiting for that proposal. Your letter falls short of that. I would like to point out that it is evident that Eversource has not received or obtained Ms. Laughlin’s plan. On Ms. Laughlin’s website, she promotes herself as knowledgeable on natives and edibles, yet your letter characterizes them as weeds-in direct contradiction of Ms. Laughlin’s expertise. I would also like to note that Ms. Laughlin also agreed that the identification of the plants in the affected areas would need to be done simultaneously with removing and potting them and that the affected areas would need to be gridded-out. As was discussed at the June meeting, this is an enormous task. The inventory needed to be conducted over the course of a growing season. It is unfathomable that Eversource has waited this long and produced nothing. Eversource has dropped the ball on this. It is also startling to still hear Eversource suggesting relocating plants on Ms. Heald’s property when 20 Noble Street § Somersworth, NH 03878 Page 5 603-219-4911 § [email protected] § www.nhbrownlaw.com Donna M. Heald to EversourceAttachment B August 9, 2019 Page 2 of 2 she has, ad nauseam, explained why the plants cannot be kept on her property. The other portions of her property do not have the correct growing conditions. At a minimum, they lack proper soil conditions and sunlight and no amount of tree cutting is going to change that. Time is of the essence on the plant inventory. The inventory team needs to be assembled now. In light of Eversource’s failure to get back to Ms. Heald, assemble a team, or provide Ms. Laughlin’s proposal, Ms. Heald will take the lead. She has a number of plant experts who could be available but Ms. Heald needs to first know how Eversource will pay the people before they will commit to the project and provide a proposal. Ms. Heald would appreciate it if you could obtain from Eversource how payment arrangements will be made so that Ms. Heald can secure people, provide Eversource with their expertise, and commence the inventory. Because Eversource has dropped the ball on the inventory, Ms. Heald will similarly take the lead on finding a place to relocate the plants. But as with the inventory, Ms. Heald will need to know from Eversource, how payment will be arranged. Lastly, Ms. Heald rejects the $50k cash-out. She rejects Eversource backing away from relocating the pole 50 feet. Eversource’s provision of water is expected given that Eversource’s project will likely disrupt Ms. Heald’s water supply, however, as expressed in prior communications, Ms. Heald still seeks to know how the temporary water will be provided, where it will be located, and whether it will be pressurized like her current water supply and integrated into her house. The well line still needs to be marked. It has never been marked, contrary to your letter. Please contact me within seven days with Eversource’s payment information. Very Truly Yours, Marcia A. Brown cc: Ms. Donna Heald 20 Noble Street § Somersworth, NH 03878 Page 6 603-219-4911 § [email protected] § www.nhbrownlaw.com Attachment C ADAM M. DUMVILLE Direct Dial: 603.230.4414 Email: [email protected] Admitted in NH and MA 11 South Main Street, Suite 500 Concord, NH 03301 T 603.226.0400 F 603.230.4448 Via Electronic Mail and U.S. Mail August 20, 2019 Marcia A. Brown, Esq. NH Brown Law PO Box 1623 Concord, NH 03302 Re: Donna Heald 220 Longmarsh Road, Durham, NH Response Required on or before August 27, 2019 Dear Attorney Brown: This letter notifies you of Eversource’s intent to commence tree clearing and construction of the Seacoast Reliability Project (“SRP or the “Project”) at 220 Longmarsh Road, Durham, NH (“Property”) in approximately two weeks. We regret that your client has been unwilling to accept Eversource’s generous offers to avoid, minimize, and/or mitigate potential impacts from construction and operation of the Project. Your letter incorrectly states that Eversource did not complete an inventory of Ms. Heald’s alleged plant stock. Eversource has completed an inventory of plants within Eversource’s right- of-way and the results of the inventory were summarized in my July 29, 2019 letter to you. As previously stated, and as summarized in Attachment 1, which is the memorandum prepared by Eversource’s expert, your client’s plants were determined to have little, if any, value. Eversource has fulfilled its voluntary offer to your client to conduct a plant inventory. To the extent your client wants Eversource to relocate the potted plants within the right-of-way to another location on your client’s property, please notify me within five business days with your client’s preferred location. Without any such notification within five business days, Eversource will utilize its standard best management practices while constructing the Project in the right-of-way. In addition, Eversource will have a construction and/or outreach representative onsite to oversee and monitor all aspects of construction very closely. To the extent your client is unsatisfied with these measures after construction of the Project is completed, your client is free to avail herself of the Dispute Resolution Process as described in the Certificate of Site and Facility as well as outlined in Applicant’s Exhibit 268. As your client has rejected Eversource’s repeated offer to relocate structure #F-107-90 by 25 feet in any direction your client prefers, Eversource will no longer entertain any such requests for a McLane Middleton, Professional Association Manchester, Concord, Portsmouth, NH | Woburn, Boston, MA McLane.com Page 7 97870\14856194 Attachment C August 20, 2019 Page 2 relocation of this structure and Eversource will construct the Project as depicted on the Environmental and Engineering Drawings dated July 16, 2018 and July 27, 2018 and as approved by the Site Evaluation Committee, by Written Order, on January 31, 2019. Contrary to your letter, and as stated previously, Eversource has marked the location of your client’s water well and water line. Eversource will notify its contractors of the markings and agrees to require its contractors to protect the existing water line from your client’s water well to her home. Lastly, Eversource hereby withdraws its offer to pay Ms. Heald $50,000. Please convey to Ms. Heald that in approximately two weeks, mowing/matting and tree clearing in the right of way will commence, followed by the start of construction of the new line in the right-of-way on her property. This schedule is weather dependent and subject to change. Sincerely, Adam M. Dumville AMD:slb Page 8 97870\14856194 Attachment C To: Dena Champy, Project Manager, Eversource Energy Lauren Cote, Siting and Construction Services, Eversource Energy From: Patty Laughlin Manager & Head Gardener Lorax Landscaping, LLC CC: Bob Goddard, Shady Hill Nursery Lucus Turcotte, Eversource Energy Adam Dumville, McLane Middleton, P.A. Date: July 22, 2019 Re: Plant Assessment, 220 Longmarsh Rd. Durham, NH I was engaged on behalf of Public Service Company of New Hampshire d/b/a Eversource Energy (“Eversource”) to provide my assessment, as a horticulture consultant, of the plant material in the Eversource easement at 220 Longmarsh Rd. in Durham, NH. I walked that site on Monday June 17th. My observations are described below. As an overview: I did not see any vegetation in the easement area that has value from an ornamental horticulture perspective, for the reasons described in this memo. An exercise of inventorying the plants in the easement is not feasible. None of the plants there, except those in containers, are worth moving, preserving or replacing. The plants in containers have no value in the horticultural trade but they can be moved with little effort. • The vegetation I observed within the Eversource easement is typical, given the environmental conditions, of an unmanaged site. o I have walked distribution and transmission rights-of-way many times in Southern Maine and New Hampshire for berry picking and prospecting for cross-country ski trails. This site is not unique. o I also walked in the Eversource easement on the maintained power line corridor to the north of Longmarsh road to compare to the property located at 220 Longmarsh Rd. The vegetation north of Longmarsh road is very similar to that in the easement area where the conditions are similar, e.g. full sun and high ground. o The vegetation, except what was in containers, appeared to all be naturally occurring. There was no indication that any of the vegetation had been planted intentionally or was being managed (weeded, pruned, watered). If the vegetation were planted with the intent of it being harvested for landscape use I would have expected to see it planted so that the effort of digging would be minimized (E.g. in- prepared beds, in rows, spaced based on harvest size, labeled and with the vegetation around it kept at bay.) Naturally occurring vegetation that develops from seed or root systems cannot be easily transplanted. As the plant grows its roots are intertwined with those of the plants around it. The transplant success of collected plants is much lower than those that are nursery grown because of the state of the root system. • Plants with claimed medicinal and foraging value appear to be naturally occurring (were not planted) and are not unique to the site; they are typical plants that would be found given the site conditions. • Several of the plants in the easement are invasive species. Species and cover is typical for a distribution or transmission right-of-way. Please note: it is illegal to move invasive species: Agr 3800 (Statutory Authority: RSA 430:55) http://www.gencourt.state.nh.us/rules/state_agencies/agr3800.html o Prohibited species: https://www.agriculture.nh.gov/publications-forms/documents/restricted-invasive- species.pdf o Restricted Species: https://www.agriculture.nh.gov/publications-forms/documents/restricted-invasive- species.pdf Page 9 Attachment C • Containerized plants o Plants in containers on the site were not properly labeled so they have no value in the horticultural trade. Industry best practices require that all plants be legibly tagged with proper botanical names. Landscape Contract Specifications (Landscape industry best practices) state that “All plant material will conform to the current issue of the American Standard for Nursery Stock, published by AmericanHort (formerly ANLA).” (Reference: Landscape Specification Guidelines published by the Landscape Contractors Association; Part I, section 1.2). The plant on the subject property do not comply with these standards. The American Standard for Nursery Stock states: 1.3.1 Correct identification requirement All nursery stock transacted within the terms of the Standard shall be correctly identified by genus, species, and, if applicable, cultivar. The plant on the subject property do not comply with these standards. In a nursery when a plant loses its tag it is discarded or given away. Without tags the plant on the subject property have no horticultural vale. o Verification of rare and unique varieties requires proper labeling and supporting documentation (much like the requirement for a pure bred dog to have proper documentation). Proper labeling was not in evidence. • Plant List o The plant list provided by the landowner includes annuals, biennials, herbaceous perennials, shrubs and trees that are typical of any unmanaged site with the conditions encountered. o The list does include some plants from the horticultural trade but it also includes invasive plants and many plants that are considered weeds in the horticultural trade (Reference: Weeds of the Northeast 1st Edition by Richard H. Uva, Joseph C. Neal, Joseph M. DiTomaso) o The ‘Estimated Quantity’ column on the plant list is irrelevant if plants aren’t containerized or managed for harvest and properly labeled. The plant list indicates there are almost 100,000 plants in containers. I counted about 100 visible containers when I was there. If containers are hidden in, or overgrown by, the foliage of other plants the plants in the containers will not survive. If all these plants were in pint size containers, and the list indicates many are quarts and gallons, they would take up ~11,000 square feet or about a quarter of an acre. I did not see any plug trays being used for propagation – plug trays are generally 10 ½“ x 20 ½” and have cells for 32 to 500 plants (https://www.toplastics.com/horticulture/plug-trays) o I made an effort to observe the top three plants on the plant list when sorted by the quantity and value columns. Quantity column Lamiastrum florentinum is a non-native ground cover perennial that spreads by runners. It is sold in nurseries. The plant list says that there are 5000 on site. I did not observe it in the landscape and I did not see containers with this plant. Impatiens capensis is a native annual that grows in wet areas and spreads by seed. The seed is sometimes harvested and packaged for sale. It would not be grown in a container for sale at a nursery. I did see this plant, but it was growing naturally in the soil, not in a container. The plant list says there are 4000 pint size containers on site. I did not observe any in containers. Onoclea sensibilis is a native perennial fern that grows in wet areas. It spreads by creeping rhizomes and spores. I did see this plant, but it was growing naturally in the soil, not in a container. The plant list says there are 3500 pint size containers of this plant. I did not observe any in containers. Value column (Without labeling plants have no value in the horticultural trade.) Hosta ‘Parkwood Early Dawn’ is a non-native herbaceous perennial. The plant list says there are 200 of them on site. I saw a few hostas in containers at the site. I did not see any labeled as Parkwood Early Dawn. Spiraea latifolia ‘Alba’ is a native shrub that grows naturally in dry open areas with marginally fertile soils. The plant list says there are 1500 plants in 3 gallon containers. I did see this plant, but it was growing naturally in the soil, not in a container. Page 10 Attachment C