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Judge won’t stop wind project

A legal move that would have effectively halted development of a wind farm was denied this morning by Ellis County District Judge Tom Toepfer.

The request, for a restraining order and a writ of mandamus – seeking to force the county to do its duty under zoning regulations – had been made by Rod Bittel, who lives about a mile from where the wind farm would be located.

Even though he denied the requests from Bittel and his attorney, Patrick Hughes, Wichita, Toepfer left open the door for additional action.

“If either party is ultimately aggrieved by what the county commission does with regard to this application, then an appeal can be taken to the district court to determine if the action was not supported by the evidence or is otherwise arbitrary or capricious,” the judge said in summing up his ruling.

This morning’s hearing in Ellis County District Court stems from Ellis County Zoning Administrator Dale Wing’s decision to forward a conditional-use permit application from Hays Wind to the Ellis County Joint Planning Commission. On a split vote, the planning commission on June 25 recommended approval of the proposed project by the Ellis County Commission.

Today, Wing said the planning commission’s recommendation already had been forwarded on to commissioners.

Hays Wind, a subsidiary of Iberdrola, would be located southwest of Hays and stretch across nearly 13,000 acres of land.

It is the second conditional-use application submitted by the company. The first was denied after adjacent landowners objected, forcing a unanimous vote by the county commission to approve the project.

That permit was denied when commissioners voted 2-to-1.

Commissioners, however, have since voted to waive a one-year moratorium on resubmitting an application, which is what was discussed at the planning commission meeting last month.

Hughes sought the court injunction, claiming the process for appealing a decision was not followed.

Hughes claimed the process should have stopped after Bittel appealed Wing’s actions to the board of zoning appeals. Hughes argued county zoning regulations should have stopped the process from moving ahead.

The planning commission’s attorney, Dennis Davidson, Russell, argued instead the tactic was little more than a stalling process that effectively could tie the issue up in court at each step in the process.

He was joined in that message by Hays Wind attorney Mel Sauer, who ultimately suggested the time to appeal would be after the Ellis County Commission takes final action on the permit request.

Sauer also contended Wing had no choice but to accept the application and forward it along to the planning commission.

That is essentially what Toepfer decided.

After quoting zoning rules, he said the question is whether the zoning administrator must make a decision on the sufficiency or quality of the application.

“I find the provisions cited above do not require the administrator to do anything other than the ministerial act of ensuring that the application and related documents have been filed, and having been filed, must then send them on to the planning commission for review, consideration and an ultimate recommendation to the county commission.”

The procedural process made the difference.

“Accepting and forwarding the application is not an enforcement issue,” Toepfer said.

By Mike Corn

Hays Daily News

3 July 2008