DAVID CITY – Over the past two weeks, voters in six Butler County townships overwhelmingly approved regulations for wind energy development, but whether the restrictions will stand remains to be seen.
On Monday, Butler County Attorney Julie Reiter said she doesn’t think the townships have the authority to enforce regulations that amount to zoning.
Reiter discussed the issue during the Butler County Board of Supervisors meeting and was asked to draft a letter for the board.
The wind turbine regulations were passed this month by six townships – Franklin, Savannah, Linwood, Skull Creek, Oak Creek and Richardson. In each township, only a handful of people voted against the regulations while dozens supported the rules.
Drawn up by the Bohemian Alps Wind Watchers, a group of citizens concerned about proposed wind development projects, the regulations were presented as safety measures. The restrictions would ban high-voltage power lines under township roads, prevent turbines from being erected within 1,640 feet of roads or properties not participating in the wind farm project and establish noise limits.
Reiter told the board she has been contacted by the townships for an opinion on the regulations, but has not provided one.
Instead, she said, the county board needs to make it clear to the townships that the county, villages and cities have zoning authority, but townships do not. Butler County does not have countywide zoning, or a comprehensive plan that would be needed to enact zoning.
“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 wind developers. This happened when Butler County Dairy sought to overturn a Read Township regulation against placing manure pipelines under its roads.
In 2013, the Nebraska Supreme Court upheld lower court rulings that determined the county did not have to overrule the township’s regulation. The dairy court issue did not directly address the matter of zoning and townships.
John Stanner and Bruce Bostelman, members of the Wind Watchers, said the rules passed are safety regulations, not zoning. Just as Read Township had the right to ban manure pipelines, other townships have the right to look out for the safety of their roads and right of way, they argue.
“You can argue whether it is zoning. It’s the opinion of the lawyer that represents four townships, who believes they are not,” Bostelman said.
Bostelman asked if the county would be working against townships if a court challenge developed.
“I don’t see it as working against the township. I see it as establishment of what lies as this body’s exclusive authority to enact countywide zoning,” Reiter responded.
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.
The board asked Reiter to talk to Lincoln attorney Greg Barton, who represents four townships and the Wind Watchers. Barton has argued the townships have the authority to pass the regulations.
Reiter said she can’t predict what consequences might occur if the township regulations end up in court.
“All I can say is, I believe that is a zoning ordinance. At that point then the township is stepping onto the authority of the county board,” she said.
Supervisor Max Birkel said the board so far was only hearing one side of the wind development issue from the Wind Watchers.
“I think we need to look at both sides of the issue,” he said.
David Levy, a Lincoln attorney representing NextEra Energy, said he agreed with Reiter’s opinion. He referred to state laws from the 1880s that 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.”
Florida-based NextEra Energy hopes to install up to 112 wind turbines in an area stretching from near Bellwood to southeast Butler County, and also east into Saunders County.