“I can’t tell you how sick I feel,” said attorney David Bailey.
Bailey represents Highland County citizens who sued the county over its decision to grant a conditional use permit for an industrial wind energy utility. He lost his case at the state Supreme Court level this week.
Highland County supervisors’ decision to grant a permit to Highland New Wind Development for Virginia’s first industrial wind utility was upheld by court on points of law that had nothing to do with the merits of the power project.
The court ruled that citizens suing the county should have named the Highland County Board of Supervisors as party to the case, instead of just “Highland County.”
In the second suit, where nearby landowners sued the county planning commission on the process of reviewing the project application against the comprehensive land use plan, the court ruled those citizens had no standing to bring the suit.
The court’s written opinion did not address any issue related to whether the wind utility application was properly assessed by supervisors.
Spokesman for the developer Frank Maisano issued a statement to media Friday. “”This is an important victory for Virginia’s first renewable wind project in Highland County,” he said.
“It is made even more important by Gov. Kaine’s announcement this week outlining his aggressive clean energy goals for the commonwealth. Virginia must have renewable power from wind and Highland County will be where the road to a cleaner, renewable energy future in Virginia begins. This decision clearly rejects the notion that you can oppose these clean energy projects just because you don’t like them. It reaffirms what we suspected all along – that Highland County and its supervisors worked very hard to make sure they made an informed decision that dotted the ‘I’s’ and crossed the ‘T’s.’ After doing the extensive homework, as well as sitting through countless hours of divisive public hearings, it surely is a relief that they acted properly all long. It is just too bad they were forced to spend much-needed county resources on the project opponents’ frivolous lawsuit. It certainly proves the old adage that no good deed goes unpunished.”
The points of law the court on which the court ruled were the only matters the justices discussed, and both meant a defeat for those who challenged the way local officials handled the conditional use permit application.
“I try not to get personal, but this hit me hard,” Bailey said Friday. He hadn’t seen the court’s opinion until late Friday afternoon. “It really hurts to have things thrown out on technicalities,” he said.
Bailey had become a well-known presence in Highland for those strongly opposed to the 39-megawatt power plant proposed by Henry T. “Mac” McBride and his family on the westernmost edge of the county.
“Most people know that although these cases were brought against the wind project, the were never really about the turbines. They were about the process of rezoning land. The Supreme Court has now given localities even more leeway … now we know no one can really challenge a planning commission,” Bailey said. “Both are pretty difficult to swallow.”
He said on the first issue, properly naming the board of supervisors to the suit is something every attorney will now know has to be done. “But you can’t fix the planning commission situation,” he said. “The court has now made the (planning) process even more perfunctory, and it will be up to the General Assembly to change that.”
There’s been a huge movement in the General Assembly the last few years in land use, Bailey added. “Local governments have to take full responsibility for their planning,” he said, noting county and city officials are clearly the “most important guardians of the process.”
Comprehensive plans, required for each locality in Virginia to guide land use development, are “just a nudge above worthless … they’re worth the paper they’re printed on and not much else,” he said. “For citizens, it’s really hard to participate. These (land use) decisions are left pretty much to individuals on a board of supervisors.”
Bailey said even if the court had not ruled in the county’s favor on naming the proper party to the suit, it’s not likely he would have won on the planning commission suit. The court left standing that special conditions for utilities (the so called 2232 reviews) can be done later, after permits are approved.
Bailey said the court’s decision surprised him because the court agreed to hear the appeal so quickly. “Then, to have it dismissed on procedural issues (surprised him also),” he said.
The message Supreme Court is sending, Bailey said, is that “your remedy is at the ballot box,” adding the court will likely continue to interpret statues very narrowly unless things are changed by the General Assembly.
At this point, those opposed to the project will await a decision from the State Corporation Commission on whether to grant Highland New Wind Development a state permit to build and operate its utility. Those involved in the SCC case will have an opportunity to appeal the agency’s decision at the Supreme Court level, but Bailey said if the SCC puts substantial conditions on the permit, an appeal might not be likely.
“After we all get through crying in our beers, I hope (Highland citizens) won’t be so depressed not to unseat the board of supervisors. You need a new set on the board, because who knows what’s coming next,” Bailey said.
By Anne Adams
13 September 2007
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