RED WING – At the September 20 meeting of the Goodhue County Board of Commissioners, County Attorney Steve Betcher reported that he had filed a request with the Minnesota Public Utilities Commission to reconsider their ruling, as authorized by the board on September 6. Since then, the PUC has ruled that the 30-day period for filing a legal appeal against their decision would run from the date of the order, not from the date of their meeting to reconsider. Any appeal must therefore be lodged by September 22. After lengthy and involved debate, the board voted 3-2 on a roll call vote to authorize Betcher to lodge an appeal. In favor were Commissioners Ron Allen, Jim Bryant and Ted Seifert, and voting against were Commissioners Dan Rechtzigel and Rich Samuelson. They then voted to authorize spending up to $5,000 for the appeal from ordinance enforcement funds, with the same 3-2 split.
Betcher explained the argument for filing an appeal, and the appeal process. He said, “The PUC have a couple of different sets of rules they could choose to follow. This is their choice, and we have to work with it. Our appeal would go to the Appellate Court, the second highest in the state. The issues are somewhat different from those we raised with the PUC, because we would be questioning the legality of some of the actions of the PUC.” Betcher noted that, if other parties lodge an appeal, and the County does not, we would have only a very limited right to be involved.
Rechtzigel responded, “A lawyer once told me that your odds of success in Appeals Court are worse than in a Las Vegas casino. You have to have incredibly tight arguments if you are to succeed.”
Betcher replied, “It’s not quite like Las Vegas, because you are not playing against the house. The court could do a number of things, including sending it back to the PUC, saying, ‘We changed the rules a little, now you decide.'”
Rechtzigel’s fear was that the court could take the board back to square one, with setbacks of turbines from non-participating properties of only 750 feet. The PUC has mandated 6-rotor diameters, which in this case is 1,620 feet. The revised Goodhue County ordinance calls for 10-rotor diameters, or 2,700 feet.
Betcher agreed that he could not give a legal opinion on how it might turn out, because the court would look at the whole issue anew. He also regretted that the decision may be taken out of the hands of the PUC. He said, “This board, and the citizens of Goodhue County have done an excellent job. We have worked hard to educate the PUC on the issues involved, and I think they have tried to apply our ordinance where suitable.”
Allen said, “The PUC is forcing our hands in this.”
Seifert agreed, and said, “This is about enforcing our local ordinance, and not letting Washington or St. Paul tell us what to do.” He compared it with taking a time-out near the end of a football game, so as to keep your chance of winning in the last minute.
Bryant added, “I believe we have to file an appeal to keep the ball rolling down the road. If the PUC ruling comes back favorable, we should certainly withdraw our appeal.”
Local protestors questioned the motives of the PUC in apparently forcing an appeal. Shelley Nygaard said, “We were all, including the lawyers, under the impression that there was a 20-day filing for reconsideration period. 17 filed. After the fact we were informed that the rules had changed. We were told we have until September 22 to file for appeal and must do it now before the reconsideration or lose any chance to do so. We feel we have been deliberately misled or information withheld.”
Protestors’ suspicions were further inflamed when they found a special meeting of the Goodhue County Planning Advisory Committee has been called at very short notice for Friday, September 23. The meeting will be at 6.30 p.m. in the jury room of the Goodhue County Justice Center in Red Wing. Planning Officer Mike Wozniak and Land Use Management Director Lisa Hanni told concerned residents on Tuesday, September 20, that the meeting was arranged at the request of AWA Goodhue Wind, and was publicized in the Red Wing Republican-Eagle on Saturday, September 17. The agenda, which was not posted on the county website until sometime on Tuesday, September 20, shows an application by the developers for a conditional use permit to replace a number of small areas of wetland totaling 0.225 acres. The wetlands would be “permanently impacted” by access roads needed for the project, and would need to be replaced by new wetlands covering twice that area.