In an emotional decision that prompted a rapt crowd to applaud, lulu and even weep on Thursday evening, the Osage County Board of Adjustment did what few believed it would do: It voted to deny a permit for the construction of an industrial wind farm west of Pawhuska.
The board voted 3-0 to turn down TradeWind Energy’s application for a conditional use permit for Mustang Run, a 68-turbine wind farm that largely would have been built on ranches owned by Ladd and Anne Marie “Ree” Drummond and Joe Bush, a Drummond on his mother’s side.
Member Rick Hedrick was first to speak after the board emerged from executive session with its attorney, Tom Hillis, to vote on TradeWind’s conditional use permit,
“What are the wins and what are the losses?” he said. “When I look at the wins, there’s energy produced. When I look at the losses, I see loss of habitat, loss of something unique to this county. And when I balance all those things, my thought is that wind farms are good but I am not sure this is the right place for them.”
Chairman Mike Render also spoke, addressing the fact that those neighboring the project were so adamantly opposed to it.
“If you’re living next to a hog farm, that has an impact on neighbors but maybe not if you’re 10 houses down. This, it seems, would have a bigger impact.”
In the short term, Render added, denying the permit could have some economic impact on Osage County, but in the longer run the economic impact could be even greater should the prairie be fragmented and lost.
While the rejection of Mustang Run was a victory for the Osage Nation, environmentalists and neighboring ranchers, the Board of Adjustment also dealt a blow to that same coalition opposed to wind by striking down a petition filed by the tribe to vacate a decision more than two years ago in which it granted a variance for another wind farm, Osage Wind, adjacent to the proposed Mustang Run project.
The tribe maintains that the Board of Adjustment had no legal authority to allow that project to go forward. Shavitz asked that the board put an end to the “illegal activity” TradeWind is currently involved in on the prairie, bulldozing the land. The reasons are manifold but legally center on two issues. First, under the county’s wind ordinance, the board has to issue a conditional use permit, but under the county’s zoning ordinance, it has no legal authority to issue such a permit for any purpose not listed in the zoning law – and the zoning law never mentions wind facilities at all. Second, when it voted on the Osage Wind project, the board specifically used the word “variance” not conditional use permit, and a conditional use permit is what the wind ordinance requires.
In voting down the petition on Osage Wind, the Board refused to elaborate on its reason for denying it.
“We will not at this point, thank you,” said Board of Adjustment Chairman Mike Render when the tribe’s attorney, Ian Shavitz, asked for an explanation.
Shavitz said after the meeting that he thought that silence was peculiar.
“I find it to be odd,” Shavitz said. “It would be difficult to defend that decision; when you don’t have any grounds for it, it’s difficult to say it’s not arbitrary.”
Before the board voted on the Nation’s petition, TradeWind attorney Ryan Ray rose to counter Shavitz’s statements. At first, chairman Render shushed him: “Unfortunately, you’re not on the agenda,” Render told Ray. After some back and forth, Ray spoke briefly.
“Our position is that this attack on the conditional use permit that was issued years ago is procedurally improper,” Ray told the board. “My client has been conducting operations and construction on reasonable reliance upon a permit issued by this board in 2011 and the attack that has been levied on it is simply based upon one person using the word ‘variance.’ It is clear from materials before the board that a conditional use permit was before the board and any suggestion to the contrary is an overly technical, far-too-late attack on the process.”
After the meeting, Shavitz disagreed, saying that the word “variance” is what the board voted on in 2011. “I am sure that TradeWind was well aware that what they got was a variance not a conditional use permit,” Shavitz said. “I think what I would have done is to get that clarified, even if that meant going back to the Board of Adjustment.”
Thursday’s meeting stood in stark contrast to a similar one almost three years ago at which Osage Wind was approved. At that meeting, Shidler residents enthusiastically supported that wind farm and objections to it, although vociferous and impassioned, failed to sway members of the Board of Adjustment, which immediately voted to approve the project.
For TradeWind, the reception was cool, even frigid. Few except those with a vested interest – landowners with TradeWind leases – spoke in favor of the project, and a veritable posse of detractors spoke at the public hearing held in April.
Owners of massive ranches – Fred Drummond and the Reed ranch – decried the project, as did Osage Nation tribal leaders, the Audubon Society, the Nature Conservancy, promoters of the National Scenic Byway, and more. Chairman Render finally closed the public hearing when no one would step forward to speak in favor of the Mustang Run project.
Many issues were raised: The desire to save one of the last remaining shreds of the Flint Hills tallgrass prairie; allegations that the project was a rape of taxpayers; worries about the deaths of eagles and demise of the greater prairie chicken; the alleged hypocrisy of wind businesses who promised to keep turbines out of the Flint Hills in Kansas but felt no such compunction when they crossed the state line into Oklahoma.
After that April public hearing, the Board of Adjustment decided to table TradeWind’s permit application for a month.
When the board met again on Thursday, Rancher Ron Reed was on the agenda and threw some more wrenches in TradeWind’s works. Reed came armed with affidavits from adjacent landowners who swore that they had never been notified by TradeWind of the April public hearing, a legal requirement. One landowner who got no notice, Juanita Brokey, was even shown by TradeWind to own land within the project boundary although TradeWind had no easement or agreement for the land, on which no turbines would be placed.
Such errors, Reed said, were fatal for TradeWind.
Reed also took aim at a claim made at the public hearing that there are no greater prairie chickens in the area of the wind farm, producing photos and news articles that clearly demonstrated there are such birds in the area.
Reed added that 99 percent of the landowners who adjoin the project oppose it – virtually all of the landowners who do not have an agreement with TradeWind or Osage Wind. Osage Wind was purchased by TradeWind last month for $60 million, so both wind farms now have the same owner but they maintain different names and have different power purchase agreements. Osage Wind has an agreement to sell electricity to Associated Electric Cooperative in Missouri and Mustang Run has one to sell power to the Grand River Dam Authority.
TradeWind has the right to appeal the Board of Adjustments denial of the conditional use permit to District Court, just as the Osage Nation can push its effort to stop the Osage Wind farm currently under construction into the same court.
TradeWind attorney Ray said that the company would do as it sees fit and declined to comment.
Shavitz said the tribe, too, would regroup and decide whether to move forward with an appeal.
Shavitz said he assumed TradeWind, which has high financial stakes in the Osage, will appeal. But he thought the company had a low chance of success.
“What happened here is exactly what is supposed to happen,” Shavitz said. “They had a public hearing, they heard the public, and they weighed the plusses and the minuses, the pros and the cons. And they came out with a decision that is reasonable and rational.
“I think it is going to be very difficult for TradeWind to come in and say that the board didn’t do their job.
“That is going to be a very difficult fight.”
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