November 27, 2010
Minnesota

Mandamus trips up wind turbine development

By: JOSHEPH LINDBERG, Northfield News, www.northfieldnews.com 26 November 2010

Rice County officials have been ordered to re-notify residents in Northfield Township of a public hearing on the proposal to build two wind turbines in the area.

A county judge ordered a writ of mandamus earlier this month, which could force Rice County officials to re-notify dozens of individuals affected by the proposed construction of wind turbines in Northfield Township – and delay any county action on turbine construction approval.

Relatively rare in the course of legal proceedings, mandamuses are “[I]ssued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly,” according to Black’s Law Dictionary.

Gro Wind LLC is trying to move forward with a pair of 326-foot-tall commercial wind turbines, slated to be built in the southeastern corner of Northfield Township. The approval of conditional use permits for the agriculturally zoned land has been postponed due to legal action taken by several residents.

Similar to an injunction, the mandamus forces Rice County officials to send out individual notices to properties near the proposed site, notices that residents in the area say they did not receive within the legal time frame.

The judge issues a mandamus after a evaluating the “clear intent” of a law that a governmental body needs to uphold, said Tom Dunnwald, an attorney representing one of the residents in Northfield Township. In this case, the issue was the notification of local residents about a public hearing.

The county is required to notify residences of public hearings regarding certain high-impact projects 10 days before they occur. The county put a notification in the paper, but some residents were not notified by mail until three days before the hearing, Dunnwald said.

One individual in the area did not get their notice in time due to improper postage on the notification, said Rice County Commissioner Galen Malecha.

“If the county made the mistake then we need to go back and correct it,” he said.

The mandamus upholds the intent of the law – meaning the county needs to hold another public hearing.

“It is my understanding that the county needs to re-issue notifications,” Dunnwald said. “The county did not do enough to notify area residents of the meeting.”

Writs of mandamus are unusual because rarely is law or ordinance clear enough to allow a judge to make such a definitive ruling.

“These don’t happen too often,” Dunnwald said. “It requires a very clean reading of the law, which is rare.”

In a letter to the Rice County Board of Commissioners, Northfield Township board outlined their concerns with the proposed wind turbine in southeastern corner of the township,

Northfield township is in favor of wind generation “[I]n areas that are appropriate for this type of project,” the letter said, but does not believe the proposed site fits that definition.

The township has several issues with the chosen site. Seven residences are within 1,400 feet of the proposed location, and two people who live nearby have health conditions that could be compromised by the presence of the turbines, the letter said.

Additionally, the township expressed concerns about the company developing the site – Gro Wind – and the placement of the turbine in a wooded area next to a ravine.

“We are not aware of this being a common practice,” the letter read. “[C]utting many trees and installing wind turbines would change the landscape dramatically.”

Four wind turbines in three different townships within Rice County were approved Tuesday, but are located farther from neighboring houses – up to 2,400 feet – and had fewer conditions associated with their construction.