Judge Charles Reynard has denied a requested delay by wind farm opponents, allowing the McLean County Board to discuss the matter at this morning’s meeting, but he said opponents do have a right to appeal on alleged rule changes made during the Zoning Board of Appeal hearings.
The opponents had an emergency hearing yesterday with the judge, asking him for a temporary restraining order to keep the board from making a decision on the wind farm until the opponents had had a chance to read through all related documents.
Reynard said the opponents didn’t have a legal time frame in which to review the documents, because the zoning board was only making a recommendation and the County Board would make the final decision. The timing applies only to the body making the final decision.
Reynard took the issue under advisement late Monday after giving each side five minutes to present their arguments. Reynard was assigned the case late in the day after Melissa McGrath, the opponents’ attorney, asked for a different judge.
The case originally was going to be heard by McLean County Circuit Court Judge James Souk.
The County Board meets at 9 a.m. in Room 400 of the Government Center, 115 E. Washington St.
McGrath filed a petition Friday asking the court for an emergency temporary restraining order to stop the County Board vote, saying her clients did not get the required 35 days to review a Zoning Board of Appeals recommendation.
The zoning board recommended a special-use permit for the White Oak Wind Energy Center by Invenergy on Feb. 8 after 12 days of sometimes heated discussion.
But McGrath maintains the final findings of facts were not available to her clients until March 14, well short of the 35 days allowed by law.
But William Wetzel, the Bloomington attorney representing Invenergy, and McLean County Assistant State’s Attorney Brian Hug, who represents the County Board and the zoning board, argued the 35-day window applies to an appeal of a variance, not a special-use permit.
The zoning board makes a final decision on a variance request, but it only makes a recommendation on a special-use permit. The final decision is up to the County Board.
“The County Board can accept it, reject it, change it, add stipulations or find additional facts,” said Hug. “What that means is the zoning board of appeals decision was not final.”
Hug said the right time to appeal a decision is after the County Board votes. “This is not the time,” he said.
Wetzel agreed, saying McGrath’s petition was “fatally defective,” and would cause an “extreme hardship to my clients.”
But McGrath said her clients have the right to seek a court review. “If they can’t, the public and the court are being told they have no right to question the decision of the zoning board of appeals,” she said.
McGrath also voiced constitutional concerns about the zoning board’s process. She said the rules were changed after proponents presented their case. Proponents got unlimited time to testify, but opponents were limited to five minutes, she said.
Opponents were not allowed to present hearsay evidence, but proponents were allowed that right, she said. Invenergy also was allowed to submit testimony on studies but she was not allowed to cross-examine.
By Mary Ann Ford
20 March 2007
|Wind Watch relies entirely
on User Funding