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Wagner men claim local wind turbines violate county commission agreement

WAGNER – Two Wagner men have taken legal action against the Charles Mix County Commission, alleging wind turbines near their homes aren’t meeting criteria outlined in the commission’s agreement with a wind energy company.

In an affidavit filed May 2 against the county commission, Jerome Powers and Darrell Petrik said they’ve observed high noise levels and ice flung onto roads by turbines, violating what they argue is a one-sided agreement with Prevailing Wind Park that the county has no authority to enforce.

Throughout 2018, according to the affidavit, the Charles Mix County Commission discussed implementing a zoning ordinance for the construction and maintenance of the 23 proposed wind turbines in the county that were to be part of Prevailing Wind Park’s project that also included construction of turbines in Bon Homme, Hutchinson and Yankton counties.

On Aug. 9, 2018, those discussions were concluded when the commission entered into an agreement as outlined in an affidavit by Peter C. Pawlowski, vice president of wind for Sustainable Power Group LLC, representing Prevailing Wind Park.

That affidavit stated Prevailing Wind Park agreed to ensure wind turbines constructed in Charles Mix County met a number of criteria related to noise, lighting, shadow flicker and ice. Among the criteria specified were that noise levels from turbines were not to exceed 43 dBA without a waiver at residences of those who weren’t participating in the project and that either control systems would automatically shut down turbines or Prevailing Wind Park would do so manually when ice conditions were identified.

Powers and Petrik asserted in their affidavit that those noise and ice criteria are not being met, that some of Prevailing Wind Park’s building permits for the turbines expired in January and that the county commission, based on its agreement with Pawlowski, has no authority to make Prevailing Wind Park comply with that agreement.

According to the affidavit, Powers and Petrik live on Wagner’s 294th and 296th streets, respectively, and neither has signed any wind turbine-related waivers regarding the Prevailing Wind Park project. They allege that “excessive and damaging noise pollution” is being caused by the wind turbines, with noise levels at their homes recorded at up to 52 dBA. The affidavit also asserts Powers has observed dangerous amounts of ice thrown from turbines onto local roads near his residence.

Powers’ and Petrik’s complaint asks a court to take action in one of two ways. The first, an alternative writ of mandamus, would involve a court ordering the Charles Mix County Commission to either enforce compliance from Prevailing Wind Park or appear in court and explain why it shouldn’t have to do so. The former proposed resolution would involve the commission adopting and implementing zoning ordinance requirements that would give the county leverage to enforce its agreement with Prevailing Wind Park, as well as issuing a cease and desist order for any future building done on turbines for which building permits may have expired.

Alternatively, Powers and Petrik are requesting a court to grant declaratory relief, finding agreed-upon commitments hadn’t been held to and the county commission has a legal obligation to ensure Prevailing Wind Park is in compliance with building permits and factors caused by its wind turbines.