September 22, 2015
Nebraska

County Attorney: Townships lack zoning authority

By Larry Peirce | The Banner-Press | September 22, 2015 | columbustelegram.com

The six townships which have approved regulations limiting wind turbine development will be getting a letter from the County Board of Supervisors.

County Attorney Julie Reiter’s letter hasn’t been written, but the Board’s discussion on Monday indicated that it may be discussed at the Oct. 5 meeting.

The Board’s first agenda item on Monday dealt with the regulations passed this month by six townships, Franklin, Savannah, Linwood, Skull Creek, Oak Creek and Richardson.

Drawn up by the Bohemian Alps Wind Watchers, a group of concerned citizens, the regulations were proposed as safety rules. The first banned high voltage power lines under township roads. The second placed setback limits of 1,640 feet from wind turbines to the nearest township road and non-participating property. The second set of rules also placed lower overnight noise limits, as determined by a study, on the turbines.

Reiter told the board that she had been contacted by the townships for an opinion on the regulations, and that she had not provided one.

Instead, she said, the County Board needs to make it clear to the townships that the county, along with villages and cities, have zoning authority, but townships do not.

“The township is doing something that lies within your exclusive control to do,” Reiter said. “Only this body has the power to enact county zoning.”

The county, Reiter said, runs the risk of being named as an “indispensable party” if a lawsuit develops between the townships and the wind developer. That was what happened when Butler County Dairy sought to overturn a Read Township regulation against placing manure pipelines under its roads.

The Nebraska Supreme Court ruled that the county did not have to overrule the township’s regulation.

John Stanner and Bruce Bostelman, members of the Wind Watchers, said that the regulations were not zoning, but instead were safety regulations. Just as Read Township had the right to ban manure pipelines, other township have the right to look out for the safety of their roads and right-of-way.

Bostelman maintained that the townships have the authority to regulate safety within their area.

“You can argue whether it is zoning. It’s the opinion of the lawyer that represents four townships, who believes they are not,” he said.

Bostelman asked if the county would be working against the townships if a court challenge developed.

Said Reiter: “I don’t see it as working against the township I see it as establishement of what lies as this bodies exclusive authority to enact countywide zoning.”

Supervisor Scott Steager asked whether the Board needed to respond immediately with a letter.

“If the board agrees with my position, I would be happy to advise the townships of that. Whether they like the opinion or not they would welcome that,” Reiter said.

Reiter said she couldn’t predict what any consequences would occur if the township regulations went to court.

“All I can say is, I believe that is a zoning ordinance. At that point then the township the township is stepping onto the authority of the county board,” she said.

County Highway Superintendent Jim Rerucha asked what responsibility the county had for protecting the county’s roads.

How will the county make sure that the roads are in good condition after wind developers install turbines, he asked.

Reiter said the county’s zoning authority could be used for that purpose. However, other supervisors noted that the county would first need to have a comprehensive plan.

Supervisor Max Birkel asked Rerucha if he had looked into how other counties’ roads were affected by wind development. Rerucha said he had talked to Holt County officials. Butler County’s engineering consultants, Mainelli Wagner & Associates of Lincoln, had also done work in other wind development area.

Birkel recalled that those counties with wind farms found their roads were in better condition than before.

Referring to the Wind Watchers, Birkel said that the County Board so far was only hearing one side of the wind development issue.

David Levy, a Lincoln attorney representing NextEra Energy Resources, arrived after the discussion had started. He said he agreed with Reiter’s opinion. He referred to the state laws of the 1880s which allowed for the creation of townships.

“Townships only have the authority expressly delegated to them by the Legislature,” Levy said. “There is nothing in Nebraska law to enact zoning regulations. Any zoning regulations must be preceded by a comprehensive plan.”