March 9, 2015

Residents sue El Paso County commissioners over wind farm project

El Paso County residents sue commissioners over wind farm project | By Ryan Maye Handy | The Gazette | March 9, 2015 | Updated March 10, 2015 |

A group of disgruntled homeowners has filed a lawsuit against the El Paso County commissioners, alleging that the board abused its power when it approved an above-ground transmission line for a wind farm project last month.

The suit is another development in an ongoing effort by residents to block a wind farm project run by NextEra Energy Resources, which plans to raise at least 126 wind turbines over the plains near Calhan. Although the commissioners approved the plan in 2013, amendments to the project raised the ire of area residents who fear the wind farm and its accompanying above-ground power line will damage their property values and their health.

“We were appalled enough that we decided to fight, and we’re not really fighting people,” said Sandra Wolfe, a resident who is part of the lawsuit. “We’re really very ordinary people.”

When the commissioners approved the 29-mile transmission line last month, the decision spurred a group of residents to take legal action after more than a year of waiting to sue. Since 2013, around 100 families, all members of the newly formed El Paso County Property Rights Coalition, contemplated suing the county over the project, said Wolfe, who is a member. The group decided to drop the idea of a lawsuit in January after the El Paso County Planning Commission recommended that the county reject NextEra’s amended plans.

Residents addressed the commissioners during a hearing Feb. 5 in hopes that their concerns about health hazards and property values would encourage the board to accept the recommendation. But meeting concluded with the commissioners giving unanimous approval to the project. The decision was jeered by dozens of residents. Nonetheless, the decision was not universally derided. Many long-time ranchers and farmers from the Calhan area spoke in favor of the project in hopes that it would bring an economic boost. More than 150 residents had bought into the power line and agreed to lease some of their lands to NextEra.

The lawsuit does not appear to challenge the 2013 approval of the wind farm, but it does challenge specifically the commissioners’ approval of the changed plan, county spokesman Dave Rose said in an email. The 14-page complaint tosses many claims at the commissioners, including residents’ belief that their comments were censored during the hearing. Some members of the coalition are paying for a Denver-based law firm to represent them in the suit.

The lawsuit’s claims include:

– The county’s decision was “arbitrary and capricious.”

– Resident statements that the commissioners disregarded the project’s long-term “negative effects upon the health, safety and welfare” of people and has inadequate setbacks from homes.

– The commissioners were coerced into approving the wind farm project because a commissioner said in a television interview that NextEra threatened to sue the commissioners if the plan was not approved;

– The commissioners violated executive session rules when NextEra representatives went into a closed-door meeting during the Feb. 5 hearing. At the time, County Attorney Amy Folsom referred to a statute that allows the commissioners to meet with their attorney to receive legal advice.

On Monday, Commissioner Amy Lathen denied that any NextEra executives attended the session, which would have been illegal, she said.

The complaint’s allegation that Lathen told KKTV that NextEra threatened to sue if the plan was not approved, but Lathen said Monday that consideration did not influence the board’s decision. She added that since NextEra had met all of the federal requirements there was no reason to deny the project. Lathen voted against the wind farm in 2013, but said that her “yes” vote in February was cast in consideration of future appeals to change the project. Commissioners can only ask to have an issue reconsidered if they voted in favor of it; to vote against the power line would have prevented Lathen from reintroducing the project should issues arise, she said.

During the hearing, Lathen bristled when Laura Wilson, a plaintiff in the suit, accused the commissioners of taking money from NextEra. “Just because we are elected (officials) doesn’t mean we have to sit here and take that kind of garbage,” Lathen told her.

During the hearing, the commissioners also faced accusations of not representing their constituents. That, however, is not as simple as it sounds, Lathen said. “Which constituents?” she asked. “Some of my constituents were for it.”

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