February 5, 2019

Seneca Wind fails to get restraining order against leaseholders

Tom Henry, Blade Staff Writer | The Blade | Feb 5, 2019 | www.toledoblade.com

TIFFIN – Seneca Wind LLC, a subsidiary of Utah-based sPower, whiffed Monday on its first attempt for a court order that would have let it proceed with preconstruction work on 31 tracts of private land that are part of the massive wind farm it wants to build.

Visiting Judge Robert Pollex denied a request from Seneca Wind attorneys for a temporary restraining order against 30 property owners holding the combined 31 leases.

The leaseholders apparently have had a change of heart since signing over easement rights more than a decade ago.

Seneca Wind contends they are in breach of contract.

Judge Pollex scheduled a hearing at 9 a.m. Feb. 22 to go deeper into the merits of the case. After that, the judge will be asked to rule on the company’s request for a preliminary or permanent injunction, a court spokesman said.

Arguments related to the company’s request were heard for hours inside a Seneca County Commons Pleas courtroom. About 75 people watched and listened.

Judge Pollex is a retired Wood County jurist the Ohio Supreme Court appointed last week to hear the complaint after Seneca County Commons Pleas Judge Michael Kelbley recused himself.

Judge Kelbley stepped down because he has a staffer who has displayed a yard sign in opposition to sPower’s project and because he was approached – but did not accept – a lease offer years ago.

Representatives of Seneca Anti-Wind Union, a citizen group opposing the project, said in a statement that Judge Pollex turned down Seneca Wind’s request for immediate access because of “powerful arguments” to the contrary.

The group also acknowledged the ruling on the temporary restraining order was only a first step.

“In the meantime, sPower will have to twiddle their thumbs instead of working on this part of their project,” according to the statement from the citizen group.

Dan Williamson, Seneca Wind spokesman, said the judge’s ruling was only on whether there was a compelling need to grant immediate access while the case continued to be heard.

“The judge’s determination was that our needs were not urgent enough to justify the TRO,” Mr. Williamson said. “We’re disappointed, but we do understand the position the judge is taking.”

He also said the company fully intends to continue pursuing its complaint on Feb. 22.

Leases were signed between the company and the 30 affected property owners in 2008, with an amendment in 2013.

At issue is what are authorized preconstruction activities, such as surveying. The company is required to limit its work to those activities until it gets authorization from the Ohio Power Siting Board to proceed to the construction phase.

The court complaint is separate from – though related to – the case sPower has before the siting board in Columbus. The board is being asked to approve the developer’s application to proceed to the construction phase.

No tree removal for the wind farm is allowed before the construction phase begins.

But the siting board’s staff is OK with the developer doing limited tree removal between Feb. 11 and March 31 in some areas where it has filed a separate application for an $11 million substation and transmission line to connect to the proposed wind farm. That recommendation is part of what has gone to the agency’s governing board for approval.

Construction of the substation and the transmission line can’t begin before approval is granted for the wind farm.

With a proposed 77 turbines across five townships, the Seneca Wind project would become one of Ohio’s largest wind farms for an industry moving rapidly into the Buckeye State. It would have a capacity of 212 megawatts, and bring $56 million to the region in terms of direct lease payments to property owners and payments in lieu of taxes to township boards and school districts.

The application needed to proceed to the construction phase is being heard by an administrative law judge.

The siting board has not rescheduled a public hearing for the project. The public hearing originally scheduled for Feb. 19 at Tiffin University’s Marion Center was postponed. The developer and the siting board staff have recommended the new date fall during the week of April 22, but no action has been taken on that.

URL to article:  https://www.wind-watch.org/news/2019/02/05/seneca-wind-fails-to-get-restraining-order-against-leaseholders/