Residents of the Mount Storm area seeking an injunction against the NedPower wind turbine project adjacent to the Dominion Power Plant will have their day in court – circuit court, that is – according to an opinion handed down by the West Virginia Supreme Court of Appeals on Friday.
The high court re-sponded to an appeal by the residents, including Jerome Burch, Levi Miller, Frank Fitzpa-trick, Charles Thomas, Richard Fiedler, Robert Hurley and John Mitchell, after Circuit Judge Phil Jordan ruled against them last fall by dismissing the case in which they cited noise, unsightliness and the devaluation of property as nuisances warranting a halt to the project.
At that time, Jordan said that the state Public Service Commission had already ruled by granting the project permits, which effectively removed it from the court’s jurisdiction.
The high court heard the appeal during its LAW Day program in Hampshire County in late April when attorney Richard Neely of Charleston argued on behalf of the residents and Samuel Brock of Charleston argued on behalf of NedPower.
Supreme Court Justices Robin Davis, Elliott Maynard, Larry Starcher and Joseph Albright disagreed with Jordan, saying in the opinion, written by Maynard, that the residents were entitled to their day in court on the nuisance complaint and that the PSC’s only jurisdiction was in siting the project.
Supreme Court Clerk Rory Perry said that the case will return to the circuit court jurisdiction where new proceedings will be held.
Jordan had no comment on the decision.
Brock said that he expects the case to move forward with a new hearing on the nuisance complaint.
“I expect it will proceed fairly quickly,” he said.
Neely, a former supreme court justice, said Friday that he plans “to litigate this case as hard as I can.”
“These things are worthless, they provide no significant contribution to the electricity needs of this country, they are a tax boondoggle,” he said of wind farms.
He added that the only reason wind is being considered is “because of the environmentalists.”
“They are against everything, they are against nuclear, gas, coal, oil,” he said.
Neely said the 200-turbine NedPower project at Mount Storm will serve only to “destroy the highest and best use of property in Grant County,” which he described as a refuge for people from Baltimore, Washington, Philadelphia and other Eastern cities.
He said he will likely submit a motion to disqualify Jordan from hearing the case again.
He said that it could be heard by Judge Andrew Frye, the other judge serving in the circuit, or by someone else who is “completely neutral.”
The justices emphasized several points in their opinion, one of which is that “the circuit court has great latitude in fashioning an appropriate remedy.”
It can completely enjoin the construction of the project or create an equitable remedy short of complete injunction. It should be one that causes NedPower no more injury than is necessary to protect the plaintiff’s rights, according to the opinion.
“Finally, our decision in this case is merely that the appellants have alleged sufficient facts in their complaint to avoid a dismissal on the pleadings,” states the opinion. “In other words, the appellants should have their day in court. Beyond this, we offer no opinion on the ultimate success or failure of the claim.”
Justice Brent Benjamin dissented and is expected to write the dissenting opinion.
None of the appellants, nor representatives of NedPower could be reached for comment Friday.
By Mona Ridder
9 June 2007
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