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Wind farm opponents to get day in court  

In a 4-1 decision, state Supreme Court justices said a Grant County judge was wrong to dismiss a complaint filed by a group of homeowners opposed to a huge wind power facility planned for a site nearby.

Now a nuisance case against two companies that want to build the $300 million wind farm can go forward after a circuit judge dismissed the case last year.

“Our decision in this case is merely that the (homeowners) have alleged sufficient facts to avoid dismissal on the pleadings,” wrote Justice Spike Maynard for the majority in the opinion released today.

“In other words, the (homeowners) should have their day in court. Beyond this, we offer no opinion on the ultimate success or failure of the (homeowners’) claim.”

Justice Brent Benjamin cast the lone dissent in the decision and is expected to file a separate opinion.

Grant Circuit Judge Phil Jordan in April 2006 dismissed a claimed filed by seven homeowners against NedPower Mount Storm LLC and Shell WindEnergy, Inc.

NedPower would build the facility and Shell would buy the wind farm when it was finished, according to the companies’ contract.

Jordan ruled that the circuit court did not have jurisdiction over the case because the project had been approved by the state Public Service Commission three years earlier. Jordan also ruled the homeowners’ specific claims about the project were insufficient to establish its being a private nuisance.

The homeowners, who live from a half-mile to two miles away from the 14-mile-long site, had complained that the proposed wind farm would be a nuisance and possibly a danger to them. The homeowners said their property values would diminish.

Their concerns ranged from excessive noise and annoying sunlight flickers caused by the 115-foot-long blades along the horizon to the potential that a blade could break off or one of the 210- to 450-foot high towers could collapse.

There are up to 200 wind turbines planned for the wind farm.

Justices ruled the homeowners had legitimate complaints and could seek compensation should their property values ever drop because of the wind farm.

And though Judge Jordan said his hands were tied in hearing the case, the justices found that the circuit court actually has “great latitude” in considering the matter. The justices said the court could either completely halt the project, or fashion another remedy stopping just short of that.

The companies argued that if the Supreme Court were to side with the homeowners, their decision would render the PSC’s review process meaningless.

As well, blocking the wind farm project would discourage future building of these kinds of power-generating projects in West Virginia because the financial risks would be too great, the companies contended.

“These arguments do not persuade us,” Maynard wrote. “We believe that such policy considerations are best left to the Legislature and not the courts. The role of the courts is simply to apply our traditional nuisance law in the absence of a clear legal reason not to so act.”

Permitting circuit court action would be akin to “second-guessing” the PSC’s review, the companies argued. Justices disagreed with the notion, saying the commission’s review involves different legal aspects than a nuisance lawsuit.

Further, the companies criticized the homeowners for not challenging the project during the PSC proceedings instead of filing a complaint in court.

“Again we disagree,” Maynard wrote. “While the (homeowners) could have intervened in the PSC proceeding and voiced their complaints, the (homeowners’) private rights are not among the primary factors to be considered by the PSC when making siting decisions, nor is it the statutory task of the PSC to apply nuisance law.”

Lawmakers bestowed upon the commission the authority to balance the interests of utilities, customers and the future of the state’s economy, the justices said.

“Notably absent in this balancing of interests are the interests of nearby landowners whose use and enjoyment of their properties may be interfered with by the operation of an electric generating facility,” Maynard wrote.

“Because the rights of the landowners are not a primary consideration in the PSC’s siting determinations, we believe it is necessary to preserve the traditional rights of these landowners to seek appropriate remedies in circuit courts.”

by Justin Anderson
Daily Mail staff

Charleston Daily Mail

8 June 2007

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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