December 2, 2010

County faces another wind lawsuit

By Gayle Weber, Hays Daily news, 2 December 2010

More than two dozen landowners in Ellis County and a prospective wind developer have filed a federal lawsuit against the Ellis County Commission over zoning regulations approved in August.

The suit, McClelland et al v. Ellis County Board of Commissioners, was filed Sept. 29 and amended Tuesday. Summonses were issued in the case Tuesday.

The amended complaint alleges the county’s zoning regulations, “if enforced, would prohibit plaintiffs from developing the wind rights on their properties.”

Nearly all of the plaintiffs in the case have entered into agreements to develop wind energy on their properties, according to the lawsuit.

The suit calls the adoption of the regulations “unreasonable, arbitrary and capricious.” It also alleges the zoning regulations would deprive landowners of valuable property rights in a potential wind development and violates plaintiffs’ rights as granted in the state and U.S. constitutions.

The plaintiffs, who have requested a jury trial in Wichita, are asking for the U.S. District Court in Wichita to declare the zoning regulations void.

The plaintiffs also have asked for damages of $75,000, but the plaintiff’s attorney declined to clarify this morning if that amount is per plaintiff or a lump sum.

The plaintiffs are being represented by a trio of attorneys at Depew, Gillen, Rathbun and McInteer, Wichita.

The Ellis County Commission adopted new regulations Aug. 30. Those include increased setbacks and notification and protest petition areas in wind developments. A 40-decibel noise limit also was imposed in the wind energy regulations.

Commissioners voted 2-1 to adopt the regulations.

“It wasn’t scientific,” Commission Chairman Perry Henman said in August of setbacks, which were increased from 1,000 feet from residences to 10-times-the-tip-height.

“It was just a compromise of all the stuff that we’ve gone through for two or three years. I thought that would be sufficient for me, the least I could go without having a bunch of noise regulations,” Henman continued.

However, noise regulations were adopted also, and Commissioner Glenn Diehl said he hoped the new regulations would keep Ellis County out of a lawsuit.

“We had a 2,000-foot setback, and we ended up in court,” he said in August. “We already ended up in court. We already know what happens.”

Diehl and Henman voted in favor of the regulations, with Commissioner Dean Haselhorst dissenting.

A group of landowners in Hays Wind LLC’s proposed project southwest of Hays sued Ellis County in district court in 2008 over setbacks in the project. As the result of mediation, setbacks were increased from 1,000 feet to 2,000 feet. The conditions of mediation in the lawsuit were settled earlier this year.

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Plaintiffs named in the new federal suit include:

Thomas and Martha McClelland, Kathleen Staab, T. Warren Hall, Stanley and Katrina Staab, Darrell Schmeidler, Kurt and Janel Staab, Gary Deutscher, Francis Staab, Todd and Jody Staab, Brian and Tonya Staab, and Harold and Virginia Kraus, all of Hays; Ernest Pfeifer, Kathy DeSaire, Verlin and Carol Armbrister, Gene and David Bittel dba Bittel Farms Partnership, Honas Farms LLC, Alvin and Margaret Armbrister, and Steven and Jeri Homburg, all of Ellis; Deanna Miller, Victoria; and Invenergy Wind Development LLC, Chicago.

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