October 13, 2016

NextEra files lawsuit against Clinton County

By BRETT ADKISON, Assistant Editor | The Clinton County Leader | October 13, 2016 | www.clintoncountyleader.com

NextEra Energy Resources has filed suit against Clinton County in response to the county’s prohibition of large-scale wind turbines last month.

The suit – filed on Thursday, October 6, in Clinton County Circuit Court – alleges that the Clinton County Planning and Zoning Commission and Clinton County Commission mishandled the process which ultimately resulted in the wind turbine ban, and that the county acted outside of its powers in approving the prohibition.

The lawsuit requests that the court review the records and decision of the county while hearing additional evidence, and asks that the court reverse the county’s decision on the wind turbine ban. The suit also alleges that members of the zoning commission and the county commission conspired to enact the ban of commercial turbines without providing proper notice or a public hearing.

The plaintiffs – including NextEra Energy Resources, Osborn Wind Energy, LLC, Osborn Wind II, LLC, and Boulevard Associates, LLC – seek damages as part of the lawsuit.

NextEra Energy Resources has previously sought to build wind turbines in Clinton County as part of the company’s Osborn wind project, which is under construction in DeKalb County. The Clinton County Planning and Zoning Commission held a series of public hearings throughout the summer to gather expert testimony and evidence regarding proposed amendments to the county’s zoning regulations. Last month, the zoning board voted to ban large-scale wind turbines entirely from the county while making allowances for smaller turbines. The Clinton County Commission approved the zoning commission’s decision.

In the lawsuit, the plaintiffs argue that the proposed amendments never included a possible prohibition of commercial wind turbines, and that the zoning commission never heard evidence for, nor indicated their consideration of, a possible ban. It is also alleged that there was no hearing nor notice of a hearing pertaining to an outright ban, and that residents in favor of wind turbines or those who would have seen their property rights harmed by a ban were not given an opportunity to provide testimony.

It is alleged in the lawsuit that, during hearings, members of the zoning commission and county commission showed bias against wind energy projects and colluded with opponents of the project. It is also alleged that, during hearings, the planning and zoning commission failed to follow the procedures that had been agreed upon.

Boulevard Associates, LLC is described in the suit as the company that has worked to obtain leases with Clinton County residents for construction and land rights, to the benefit of Osborn Wind and Osborn Wind II. NextEra Energy Resources is the parent company to all three.

It is alleged in the lawsuit that the county commission, in approving the wind turbine prohibition, has deprived the plaintiffs their expectations in the use and development of the leased property, which is claimed in the lawsuit as an unconstitutional taking or damaging of property.

It is mentioned in the lawsuit that NextEra previously applied for a special use permit to develop a wind project in Clinton County, and that use permit – obtained “in or about 2010,” as described in suit – was never terminated pursuant to Clinton County’s zoning order.

As of the morning of Tuesday, October 11, the Clinton County Commission had yet to be served.

“I can’t say that I wasn’t expecting it,” Clinton County Presiding Commissioner Wade Wilken, Jr. said Tuesday. “But I have faith in the process. I think the zoning board made a tough decision and we stood by the zoning board.”

Second District Commissioner Larry King cited possible case law in the matter.

“Our zoning board acted in an educated, professional and resourceful way,” King said. “As I understand it, the ordinance they passed and we approved was the same ordinance that was upheld by the Kansas Supreme Court.”

First District Commissioner Charlie Dawson declined to comment. Attempts to contact Clinton County Planning and Zoning Chairman Michael Adair were unsuccessful as of press time. The Clinton County Planning and Zoning Department was closed this past Monday and Tuesday.

URL to article:  https://www.wind-watch.org/news/2016/10/13/nextera-files-lawsuit-against-clinton-county/