Opponents gain legal assistance 

Wind farm opponents mean business, and they’ve secured the services of a Wichita attorney and are discussing what action to take after the Ellis County Commission votes either to approve or deny the conditional-use permit requested by Competitive Power Ventures.

The Ellis County Environmental Awareness Coalition, a group organized in opposition to the proposed project, is prepared to support the county commissioners in a vote of denial, said ECEAC co-chairman Tim Davis at a meeting Monday evening.

The coalition also is preparing for a lawsuit in the event of commission approval, he said.

“I think most of us here are planning on filing a lawsuit in district court to look at the merits of some of the things that have been brought up,” Davis said. “And indeed, we’re already preparing some of that.”

On the other hand, the group plans to support the county in the event commissioners vote “no,” he said.

“Would we support (commissioners) in a denial of this application and file a brief on their behalf?” Davis asked. “I think a lot of us here, we’d say yes. So far, that’s been our plan all along, is to support the county if they make the right decision on this thing.”

Potential courses of action were one of many issues discussed Monday evening. About 50 ECEAC members gathered in the Hays High School Lecture Hall at 7 p.m. to receive legal advice from Patrick B. Hughes, a Wichita attorney with experience in zoning and subdivision matters.

Hughes also has been involved in litigation regarding other wind farm developments in Kansas, including Geary and Butler counties.

County Commissioner Dennis Pfannenstiel and Ellis County Planning and Zoning Commissioner Barbara Anderson also were in attendance.

Hughes’ services were retained by the group to provide an education on legal proceedings, as well as legal advice, Rod Bittel said.

“I think the thing with Patrick, there are two things – one is education,” said Bittel, a member of the ECEAC. “Another is the law, and that we’re serious, bottom line. We want to know what the law is, we want to know the law is on our side.”

Hughes addressed two specific issues at the meeting: the payment in lieu of taxes company representatives have promised and a letter of support endorsed by the former county commission in August 2005.

The written opinion Hughes provided on behalf of his law firm, Adams Jones Law Firm, suggests county commissioners should reject the applicant’s offer to pay the county up to $600,000 per year.

This payment, which would be based on megawatt production, could taint the decision-making process, Hughes said.

After the Butler County Commission approved the Elk River Wind Project, the case appeared in district court. The annual payment of $175,000 offered to the county was deemed “repugnant due process” in this case, Hughes said.

The decision was reversed, and the process had to be completed again, he said.

“How can anyone have confidence in their public government if it looks like it’s for sale?” he said. “And that’s what it looks like, when there is no justification. It’s not as though this is money that’s being offered to pay for some impact that the facility has.”

The concept of wind companies entering a contract to provide an annual gift to counties is not necessarily wrong. Other governments have entered such agreements, Hughes said.

There is a legal mechanism providing for tax-exempt property to make payments in lieu of taxes to the county, but timing is a key issue, he said.

“The difference, and it’s an important one, is where it happens in the process,” Hughes said. “When you have a quasi-judicial decision that’s going to be made and you make the promise, ‘I’m going to enter this agreement with you to pay you money,’ that affects the process.”

Hughes also addressed the concept that a letter of support county commissioners endorsed on behalf of the project on Aug. 29, 2005, is a binding agreement. This is not true, he said.

Hughes also encouraged group members and the county to remember the scope of the decision to be made.

“What we’re concerned about in a conditional-use is this question of, ‘Does this specific use that’s proposed, on the specific property that we’re talking about, are they compatible?’ ” he said. “There isn’t a question, that’s before the county commission now, about whether green energy is a good thing. There’s not a question about, ‘Do we have man-made global warming that we need to do something about?’

“None of that matters to what the county commission has in front of it now,” he said. “Its question deals with this limited question – land use.”

By Kaley Lyon

Hays Daily News

18 June 2007