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High court OKs wind farm plans

The Virginia Supreme Court upheld a decision Friday by Highland County to allow a controversial wind farm on a mountain ridge.

Opponents of the state’s first proposed industrial wind project – 19 turbines that would stand up to 400 feet high – had argued that the county board of supervisors erred when it issued a conditional-use permit for the project.

Adjoining landowners and other opponents said the giant windmills would kill birds and bats, hamper tourism and ruin the scenic views of a county known as “Virginia’s Switzerland.”

If the plans go through, the turbines atop Alleghany Mountain will be about four times taller than the Mill Mountain Star.

Supporters say the $60 million project could provide power to about 15,000 homes, generate tax revenue for the county and pose no adverse effects on the environment.

With Friday’s decision, “Highland County will be where the road to a cleaner, renewable energy future for Virginia begins,” said Frank Maisano, a spokesman for the project developer, Highland New Wind Development.

But before construction begins, the project must receive final approval from the State Corporation Commission.

A decision by the SCC is expected by the end of November, said John Flora, a Harrisonburg attorney who represents Highland New Wind. If the project is approved, the turbines could begin turning by the end of 2008.

However, opponents could appeal again to the Supreme Court if the SCC decision doesn’t go their way. A second appeal would push the project back another year, Flora said.

With wind power a relatively new concept for the East Coast, the case was watched closely by energy developers and conservationists. But precedent-setting decisions are more likely to come from the SCC than from Friday’s court action.

The legal challenge heard by the Supreme Court dealt with narrow procedural issues and zoning requirements – not the fundamental arguments for and against wind farm technology.

Considering two lawsuits from wind farm opponents that were consolidated for appeal, the high court ruled that while Circuit Court Judge Paul Sheridan was correct in dismissing the legal challenges, he should have done it earlier.

In a lawsuit brought by Lucile Miller, Sheridan ruled that the board of supervisors acted reasonably. But he should have thrown the case out earlier because Miller did not properly name the board as a defendant in her lawsuit against Highland County, the Supreme Court ruled.

A second case brought by Tom Brody attacked a review by the planning commission of the supervisors’ action. While Sheridan found that the commission acted appropriately, the Supreme Court ruled that Brody’s claim should have been dismissed earlier on technical grounds.

“When a circuit court has reached the correct result for the wrong reason, we will assign the correct reason and affirm the relevant portion of the circuit court’s judgment,” the court said in its unanimous decision.

Efforts to reach the plaintiffs Friday were unsuccessful. David Bailey, an attorney who represented them, said the only legal option that remains on the zoning front is asking the Supreme Court to reconsider its decision.

“And that’s kind of a long shot,” he said.

By Laurence Hammack

The Roanoke Times

15 September 2007