The Kansas Supreme Court on Friday ordered Wabaunsee County District Court to reconsider certain aspects of its decision to uphold a county ban against commercial wind farms.
The district court in 2007 dismissed most of the claims filed by Wabaunsee County residents who had entered into land agreements with wind-power developers before a county ban was imposed.
The plaintiffs sued the Wabaunsee County Board of Commissioners, which in 2004 voted to ban wind turbines taller than 120 feet and producing more than 100 kilowatts of power. Smaller turbines generally are used for private wind energy, while wind farms use the bigger units for commercial production.
In Friday’s unanimous decision, written by Chief Justice Lawton Nuss, the high court said the district court was correct in dismissing several aspects of the plaintiffs’ suit.
But the Supreme Court told the district court to re-examine other aspects of its decision as it relates to the Commerce Clause of the U.S. Constitution – the provision that allows Congress to regulate commerce among states.
The district court said the county’s ban didn’t discriminate against interstate commerce by treating in-state and out-of-state economic interests differently, and the Supreme Court affirmed that decision. But the high court ruled the ban still impacted interstate commerce to an extent that was clearly excessive.
In imposing the ban on larger turbines, the county said it was doing so to maintain “the rural character of the county with respect to its landscape, open space, scenery, peace, tranquility and solitude.”
The high court said the district court had made no determination as to the extent of damages that would be incurred by plaintiffs because of the county ban and ordered the lower court to consider the issue.
“This court cannot know how much electricity would be generated from Wabaunsee County wind, and eventually kept out of the interstate power grid, if there were no board prohibition against (commercial wind farms),” Nuss wrote. “This type of information would be relevant (to further analysis).”
Friday’s remand of the case – Roger Zimmerman et al. and A.B. Hudson and Larry French, intervenors, v. the board of Wabaunsee County commissioners – is the second time the high court has considered whether the county’s ban of commercial wind farms violates state or federal law.
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