December 17, 2015
Virginia

Judge dismisses lawsuit filed by wind farm opponents in Botetourt

Laurence Hammack | The Roanoke Times | Posted: Wednesday, December 16, 2015 | www.roanoke.com

FINCASTLE – The road that could lead to Virginia’s first commercial wind farm passed through a Botetourt County courtroom Wednesday without hitting a speed bump.

Circuit Judge Paul Sheridan dismissed a lawsuit filed by five county residents that, at the least, had threatened to slow down plans to build up to 25 giant turbines on top of North Mountain, where they could begin converting wind to electricity by the end of 2017.

The lawsuit did not target the project’s developer, Apex Clean Energy of Charlottesville, or the details of its proposal. Rather, it attacked an ordinance, passed in June by the Botetourt County Board of Supervisors, that regulates all utility-scale wind turbines in the county.

“The case is essentially premature,” the judge said, siding with county attorney Michael Lockaby, who had argued the lawsuit’s allegations of public dangers posed by turbines were based on speculation – considering the county has yet to decide on Apex’s request for a special exception permit, as required by the ordinance.

Although dismissal of the lawsuit eliminates one hurdle for Apex, more lie ahead.

In addition to approval from the county board of supervisors, the company must also receive clearance from the Virginia Department of Environmental Quality, the Federal Aviation Administration and other federal agencies.

Apex says the project would provide enough clean, renewable energy to power up to 20,000 homes.

Opponents claimed in the lawsuit that the turbines would pose many dangers – low-frequency noise, shadow flicker that may induce vertigo in some people, and harm to the environment among them – that the county’s ordinance fails to address.

“We are not trying to defeat wind turbine construction,” Tammy Belinsky, an attorney for the plaintiffs, said during a hearing Wednesday on the county’s motion to have the lawsuit thrown out. “We are trying to ensure the ordinance will protect public health, safety and welfare.”

With his ruling, Sheridan left open the possibility that opponents could sue the county supervisors again, once an official action is taken, if they feel the board did not act reasonably. “I can’t anticipate or guess what the county is going to do,” Sheridan said.

But he said it’s too soon for the courts to consider an attack of the ordinance on its face. The case involves “fairly sophisticated lines of argument” that have evolved along with the wind industry, said Sheridan, who in 2006 dismissed a lawsuit filed by opponents of a proposed wind farm in Highland County. Although the Virginia Supreme Court later upheld Sheridan’s decision, plans for the project never got off the ground.

Now retired, Sheridan was appointed to preside over the Botetourt County case after Judge Malfourd “Bo” Trumbo stepped aside for reasons that are not articulated in court records.

In asking that the lawsuit be dismissed, Lockaby argued that the county’s ordinance allows the board of supervisors to consider 37 different issues, all of them raised by the plaintiffs in their lawsuit. To determine at this point how those issues might be addressed would be “extremely speculative,” Lockaby said.

The county also asserted that some of the plaintiffs live so far from the proposed wind turbines – in one case about 20 miles away – that they lack standing to allege they would be harmed by them. All of the residents who brought the suit live at least a mile away from the site.

So far, there has been only scattered opposition to the turbines in Botetourt, where the remote location of the site is different from those in other Virginia localities, where nearby residents fought proposals for wind farms that were never built.

Apex wants to erect up to 25 turbines along a 3.5-mile long ridge on North Mountain, about five miles northeast of Eagle Rock. Each turbine could stand up to 550 feet tall, higher than the tallest building in downtown Roanoke.

The planning commission is expected to consider the company’s application for a special exception permit at its Jan. 11 meeting. The board of supervisors will have the final say.

When the lawsuit was filed in July, eight residents and a company claimed that the county’s ordinance failed to protect them from various dangers posed by wind farms. “Industrial wind turbines are known to catch fire, to collapse, emit audible and low frequency noise, cause shadow flicker and to throw ice from spinning blades in the wintertime,” the lawsuit alleged, adding that they also kill birds and bats and destroy their habitat.

After suit was filed, three of the plaintiffs dropped out. One cited personal reasons; the other two did not own their homes, and as renters decided to relinquish any standing they might have had.

Although an appeal or other legal action is possible, Belinsky said after the hearing that it’s too soon to say what the remaining plaintiffs will do.