November 18, 2021

Second lawsuit filed by opponents of proposed wind farm in Botetourt County

Laurence Hammack | The Roanoke Times | November 17, 2021 |

A citizens group opposed to putting a row of 612-foot-tall wind turbines on top of a Botetourt County mountain has gone back to court in an effort to stop the renewable energy project.

[Virginians] for Responsible Energy, in a lawsuit filed Nov. 10, takes issue with a recent decision by the county Board of Zoning Appeals that allowed plans for the wind farm to move forward.

At a meeting last month, the board overturned a decision by the county zoning administrator, who found that Rocky Forge Wind did not qualify for a statewide extension of zoning deadlines for projects delayed by the coronavirus pandemic.

Apex Clean Energy, the Charlottesville-based company that is proposing the wind farm, appealed the zoning official’s ruling. Had the decision stood, it would have invalidated a county permit for an industrial-scale utility that will include 14 giant turbines atop North Mountain in the county’s rural northeastern corner.

Now, [Virginians] for Responsible Energy is asking a judge in Botetourt County Circuit Court to reverse the board’s reversal.

“The BZA’s pronouncement includes no reasoning, argument, or justification; it is hardly recognizable as the outcome of a deliberative, public-facing quasi-judicial process,” the lawsuit states.

In asking that the decision be invalidated, the lawsuit argues that the vague process the board followed was complicated further by the possibility that a conclusion was reached in a closed session with an attorney.

Although the Virginia Freedom of Information Act allows public bodies to meet behind closed doors to seek advice on “specific legal matters,” those matters were never identified, the lawsuit states.

Named as defendants are the county’s board of supervisors, Rocky Forge Wind and an irrevocable trust set up by the family of Jerry Fraley, which is leasing nearly 7,000 acres to Apex for the wind farm. The actual development will occupy about 200 acres along the ridgeline.

Following the board of zoning appeals meeting, the supervisors had 30 days to challenge its ruling in court. The county chose not to, according to spokeswoman Tiffany Bradbury, allowing the project to move forward.

“Botetourt County has met with APEX representatives to address any questions they have about their previous application and also to answer any questions about the review and approval process,” Bradbury wrote in an email.

The lawsuit is the second legal challenge brought by [Virginians] for Responsible Energy – which consists of at least 13 residents of Botetourt and Rockbridge counties – to a project that, if completed, would be the first onshore wind farm in Virginia.

Rocky Forge has run into repeated delays and legal challenges since announcing the project in 2016.

The citizens group filed its first lawsuit last December, challenging a separate approval by the Virginia Department of Environmental Quality. DEQ found the project would not harm natural resources, although it ordered the turbines to be turned off at night in the warmer months to protect flying bats.

Judge Joel Branscom allowed the case to move forward in August. However, he said the question of whether the plaintiffs have standing to bring suit – some of them live more than five miles away from where the turbines are to be located – was a close call that may be revisited later.

In its latest lawsuit, the group raised concerns about the long-term impacts of infrasound, the low-frequency noise that is generated by the slowly spinning turbines.

Opponents also say the turbines, which would be about twice as tall as the Wells Fargo tower in downtown Roanoke, will mar the scenic landscape and endanger wildlife and water bodies.

A special exception permit granted by the board of supervisors last year required final site plans be approved for the facility by May 26. Apex missed the deadline, saying that supply chain issues caused by the COVID-19 pandemic were to blame.

Although the General Assembly approved an extension of deadlines for projects slowed by the pandemic, zoning administrator Drew Pearson ruled in July that the law did not apply to Rocky Forge.

That issue, along with questions about the wind farm’s environmental impacts, will now be decided in court.

Supporters say that more energy from the sun and the wind is needed to curb climate change worldwide and to meet the requirements of a new law in Virginia that calls for major utilities to be totally carbon-free by 2050.

Apex has said that its latest goal is to have the wind farm in service by the end of next year.

“We are confident that our argument that the COVID extension law passed by the Virginia General Assembly applies to Rocky Forge and will be validated by the Circuit Court as it was unanimously by the Botetourt County BZA in October,” company spokesman Patrick Chilton wrote in an email Monday.

“We remain eager to get back to work to bring this investment to Botetourt County.”

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