Cherry County commissioners’ recent approval of a long-discussed wind farm west of Kilgore has opened a second front in legal struggles over wind-energy development in Nebraska’s largest county.
Preserve the Sandhills LLC, which managed to briefly delay the project last summer, has appealed to Cherry County District Court to reverse a 3-0 County Board vote Oct. 29 granting a conditional use permit for the 19-turbine Kilgore project.
The appeal, filed Nov. 29, alleges “numerous flaws” in the county’s approval process and claims the wind farm is “vehemently opposed by a majority of the citizens of Cherry County.”
County Board members defended their vote in a letter published last month in the Stapleton Enterprise and Thedford’s Thomas County Herald.
It cited a dozen conditions attached to the permit atop wind energy regulations they called “perhaps the most stringent in the state.”
The appeal by Preserve the Sandhills, which claims 500 members throughout the region, renewed the group’s claim that Commissioners Martin DeNaeyer of Seneca and Tanya Storer of Whitman have “pervasive conflicts of interest” in regard to wind projects.
Its earlier suit to disqualify them from voting on such matters remains alive, with a pretrial hearing set for Feb. 21, 2020.
Multiple members of both commissioners’ families, the citizens group says, have ties to project promoter Cherry County Wind LLC and are likely to benefit financially if and when wind turbines are built.
Cherry County Wind, organized in 2011, has promoted both the Kilgore project and a possible 150-turbine wind farm in southeast Cherry County near Thedford.
Those are the sprawling 6,009-square-mile county’s only two areas both feasible and physically suitable for wind farms, some of its leaders said in 2016.
Preserve the Sandhills, joined by rural Valentine property owner Charlene Reiser-McCormick, first sued after the Planning Commission voted 4-3 following a lengthy June 4 public hearing to recommend approval of the Kilgore project.
District Judge Mark Kosizek temporarily restrained DeNaeyer and Storer July 15 from discussing or voting on the Kilgore permit. That denied the County Board a quorum on the matter, forcing postponement of the board’s planned July 16 public hearing.
Kosizek lifted the ban Aug. 8, denying Preserve the Sandhills a temporary injunction – on the grounds that no legal harm had yet occurred – but also declining to dismiss the suit.
That cleared the way for a rescheduled County Board hearing Sept. 17 on the application by BSH Kilgore LLC, part of the joint Bluestem Sandhills venture of Bluestem Energy Solutions of Omaha and Sandhills Wind Energy of Valentine.
Twenty people testified against the permit and 12 people in favor of it at that hearing, according to County Board minutes.
The board’s Oct. 29 vote to approve the wind-farm permit adopted a “zoning resolution” with six conditions the Planning Commission had recommended and six more commissioners set on Oct. 15.
Among other provisions, BSH Kilgore must reach suitable agreements with the county before construction to restore county roads damaged during installation and decommission the turbines after their useful life.
The zoning resolution estimates decommissioning costs at $4.12 million, with BSH Kilgore required to commit to their payment by depositing 10% of that amount in a Cherry County bank.
The county’s most recent zoning regulations, adopted in 2016, require wind-farm applicants to keep turbines at least one-half mile from “non-owner dwellings.”
They impose limits on “shadow flicker” from turbines, limit them to 50 decibels of sound “at the nearest structure occupied by humans” and require their removal within 180 days after they’re shut down permanently, among other provisions.
Nebraska Supreme Court rulings won’t let counties “ban or ‘in effect’ ban a business activity that the State of Nebraska deems to be legal,” Storer, DeNaeyer and Commissioner James Ward of Valentine said in their letter to the Stapleton and Thedford newspapers.
Absent that power, commissioners “have taken extensive measures to address the concerns of Cherry County citizens” and ensure the Kilgore project “will meet the highest standards available,” they said.
But nearby property owners stand to suffer “adverse impacts upon their property values, quality of life and right to quiet enjoyment” of their land, Preserve the Sandhills says in its appeal.
It declares that relatives of Storer, the County Board’s current chairman, “originally orchestrated” plans to develop Sandhills wind energy projects.
BSH Kilgore “is being used as the token applicant” for the Kilgore permit because Cherry County Wind “is largely comprised of family members of Commissioners DeNaeyer and Storer and their property interests,” the document says.
An initial BSH Kilgore application to install 30 turbines was “appropriately denied” in 2016 by a County Board with different members, it says. The 19-turbine version was submitted in June 2018.
Storer was first elected to the board in 2014, DeNaeyer in 2016 and Ward in 2018, according to Cherry County election records.
Preserve the Sandhills’ appeal also contests the Planning Commission’s June vote to advance the application, saying the late York planning consultant Orval Stahr incorrectly and improperly advised the panel that it couldn’t reject it.
Stahr, who had been hired to help Cherry County revise its comprehensive plan and zoning regulations, died July 18 at age 72. The county has hired David City planning consultant Keith Marvin to finish the task.
Commissioners have not yet filed a court response to the latest appeal. They hired the Houghton Bradford law firm of Omaha Wednesday to provide them with additional legal help, but their motion didn’t reference the Kilgore project, the County Clerk’s Office says.
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