The proposed Goshen South Wind Project that would place 150 wind turbines in the mountains east of Blackfoot will go back to the County Commissioners to finish an appeal of its special use permit following a decision by the Planning and Zoning Commission on Wednesday that member Larry Kohler’s vote in favor of the permit for the turbines can stand.
The wind farm is one of the most controversial issues to come before the P&Z Commission, and it intensified Wednesday night before the upset and dispirited zoning board and staff left a hearing that concluded at 1 a.m. following a contentious session that ended with three commissioners voting to accept Kohler’s statement of no conflict of interest, and three voting against the motion.
Ridgeline Energy LLC was granted the SUP at the zoning board’s April 23 meeting, but the decision was appealed to the County Commissioners and sent back to P&Z by them after the attorney for some of the appellants pointed out that Kohler should have declared a potential conflict due to owning land adjacent to some of that being leased for the project.
Kohler, vacationing in Oregon with his family on a trip planned before Wednesday’s meeting was scheduled, participated by phone, stating emphatically that he does not stand to gain financially from the project, had not been approached by the company as a potential lessor, nor discussed it with those who are.
At the conclusion of the hearing, P&Z Commissioner Kent Banner made the motion to accept Kohler’s statement. It was seconded by Gay Sorensen, and Hortense Nelson voted with them.
Commission members Merril Blake, Charles Shackelford and Paul Clark voted no on the motion, saying they came to the meeting prepared for a re-vote on the SUP, only to learn there would be none.
Instead they were told they were only there to determine whether Kohler has a conflict of interest that would have precluded him from voting on the permit.
Although he voted against granting the SUP on April 23, Randy Turpin, now chairman of the commission, cast the deciding vote in favor of the motion, saying his belief was that Kohler has no conflict of interest.
Blake was chairman of the commission during the May hearing, and said Wednesday he had been told from the time he became chairman he could only vote to break a tie, but learned subsequently that the P&Z by-laws had been changed a year ago to grant the chair voting privileges.
“If I would have voted then, the outcome would have been totally different,” he said. “It would have failed.”
Blake told his fellow board members that he will petition for a judicial review of the decision himself because he was misinformed and deprived of his opportunity to appeal the fact he wasn’t allowed to vote.
Blake said also, Jensen told him earlier there would be a re-vote Wednesday night. Turpin said he also was under the impression there would be a re-vote until he talked with zoning staff and counsel. However, he said the fact Blake was told he couldn’t vote as chairman may have been a procedural error the county should take a look at.
Both Blake and Clark pushed for a re-vote Wednesday night, but deputy Bingham County Prosecutor Eileen McGovern, told them their only duty at the hearing was to determine whether Kohler has a conflict of interest.
She said the County Commissioners have the authority to limit the scope of the remand, and following a meeting with counsel had limited it to the question of Kohler’s potential conflict.
She said a determination of conflict is based primarily on whether the person in question stands to gain financially from a project he or she is voting on.
McGovern said at the start of the hearing that only testimony concerning Kohler’s potential conflict would be allowed, and that the commission members were to determine individually whether or not a conflict exists.
Attorney Gary Slade, representing Natural Guardian Limited Partnership of Idaho Falls, and attorney Jarin Hammer, representing another group of mostly Idaho Falls residents who own land in the Wolverine Canyon area, both stated during testimony their opinions are that Kohler’s land ownership causes him to have a conflict of interest.
Slade wanted the board to find out whether Kohler had communication with any of the landowners after the application for the SUP was submitted, or was approached by Ridgeline representatives to lease his land.
Slade said also, he objected to the notion that Kohler could participate in the hearing by telephone. “Your own by-laws of August 2007 say the only people entitled to vote are the members who are present,” he said.
Idaho Falls attorney Tim Hopkins, representing Ridgeline, objected at that point, but was informed by Turpin that the hearing was not a court of law, and objections weren’t allowed. He told Hopkins he would have an opportunity to give testimony.
Rand Gardner, project manager for the wind farm, said nothing related to the project was ever discussed with Kohler. “Everything related to it comes through me,” he said, “and I didn’t even know he owned property.”
The remand was initially announced as a re-vote and placed on the P&Z agenda for Wednesday as a re-vote, but zoning staff said that was a mistake.
Zoning Administrator Melodie Halstead read from the public notice of the hearing published in The Morning News, which said the hearing was for the purpose of determining Kohler’s voting status.
Jensen apologized to the board at the end of the meeting for misinformation they received and for the fact each was not made aware of the change in by-laws allowing the chairman to vote.
Even though McGovern said earlier in response to a question from Blake that the commission members are responsible for learning what the by-laws are, Jensen said the staff has an ethical duty to see that they’re provided all of the information they need to do their job.
By Emily Hone
25 July 2008
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