October 14, 2011

Bent Mountain group sues over wind ordinance

By Katelyn Polantz, The Roanoke Times, ww.roanoke.com 14 October 2011

A group of Bent Mountain residents has sued the Roanoke County Board of Supervisors for policies it set last month to regulate wind farms.

One company and 26 residents, including activists Eldon Karr and Steven Hanes, want the court to overturn the county’s wind ordinance and prevent a company from erecting turbines near their homes, according to documents filed by Roanoke attorney John Fishwick on Thursday in Roanoke County Circuit Court.

Turbines atop county mountains such as Poor Mountain could hurt property values, scenic views, airplane traffic and the wildlife around them, the complaint says.

It calls the supervisors’ actions and parts of the ordinance “clearly unreasonable, arbitrary or capricious” and says they don’t take into account “public health, safety, morals or general welfare” of county residents.

The lawsuit says a section of the ordinance violates the Constitution because it takes residents’ properties without compensation. That claim directly relates to one of the most controversial parts of the ordinance, a 1,000-foot minimum distance that turbines must stand from neighboring homes.

That distance is 1,600 feet less than the county first proposed. The residents say that when supervisors changed the distance Sept. 13, they hadn’t provided county residents notice of a public hearing. The board held a hearing on the ordinance including the initial distance of a half-mile Aug. 23.

Also, the lawsuit claims the board’s actions exceed the authority it has been given via the Dillon Rule, which limits local governments to powers delegated by the state.

The residents claim that the policy will affect them because they live in sight of Poor Mountain, where a Chicago company has leased land and plans to build a wind farm.

County Attorney Paul Mahoney didn’t respond to the suit Thursday because he hadn’t reviewed it.

Parts of the complaint sound similar to lawsuits that reached the state Supreme Court in 2007 about a planned wind farm in Highland County.

The cases challenged the county on the permit procedure for a proposed wind site, a stage later in the process than the planned Roanoke County wind farm stands. The court dismissed those cases because of errors made by the plaintiffs in their filings.

The Highland County suits didn’t address the issues that drive opponents and advocates of wind farms, such as environmental impacts and other quality-of-life issues.

“This is kind of a developing area of the law,” Fishwick said Thursday. “These fights raise unique issues.”

The Highland County turbines, which haven’t materialized, were Virginia’s first proposed industrial wind project. Still, no utility-scale wind farms exist in the commonwealth.

Invenergy LLC has not yet asked Roanoke County for permits for the 15 to 18 structures it plans for Poor Mountain. The company still must clear Federal Aviation Administration regulations before it can pursue the project.

Invenergy did not respond Thursday to a request for comment.

County supervisors passed the ordinance one month ago, with an opposing vote only from Windsor Hills District Supervisor Ed Elswick, who represents and lives in the Bent Mountain area.

Elswick this week asked the board to tighten one piece of the ordinance: the sound-level limit of 60 decibels on turbines when heard from the nearest property lines. The board expects to discuss the limit at its next meeting Oct. 25.

Of his constituents’ legal action, “I think it’s a free country and they’re entitled to do that,” Elswick said.

News researcher Belinda Harris contributed to this report.

URL to article:  https://www.wind-watch.org/news/2011/10/14/bent-mountain-group-sues-over-wind-ordinance/