International Municipal Lawyers Association - Local Government Blog

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

My favorite movie is The Wizard of Oz, so I couldn’t help but notice the decision of the Kansas Supreme Court yesterday on a wind energy issue in Wabaunsee County.  Zimmerman v Wabaunsee County.

Wabaunsee County is in the eastern part of the state 30 miles west of Topeka.  In 2008 it had 6,922 people in an area of 791 square miles.  The county lies within the Flint Hills, a six million acre grassland ecoregion of hills largely of limestone and shale.  Here is the Flint Hills area in Kansas.  “WB” is Wabaunsee County.

The Flint Hills extend into Oklahoma where they are known as the Osage Hills.

The soil is no good for growing crops, so ranching has predominated.  Today, the largely native Flint Hills Tallgrass Prairie, most of it unplowed, is one of the last intact preserves of the ecosystem which once was characteristic of the Midwest just east of the Great Plains.  There’s a Tallgrass Prairies National Preserve in the Flint Hills.

The Flint Hills not only has plenty of steady wind, but it also has a good infrastructure of transmission lines – thus, the interest in commercial wind power.

J.W. Prairie Windpower, the Lawrence subsidiary of a German company, proposed a wind farm. What followed were 54 public hearings with the majority of the people attending opposing the project because it would adversely affect the views.  The County adopted these changes to its ordinance: 

207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buildings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind. 

208. Commercial Wind Energy Conversion System: A Wind Energy Conversion System exceeding 100 kilowatt or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. (Commercial Wind Energy Conversion Systems are specifically prohibited as a use in Wabaunsee County.)

210. Small Wind Energy Conversion System. A wind energy conversion system consisting of wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 100 kilowatt, which is less than 120 feet in height and which is intended solely to reduce on-site consumption of purchased utility power.

30. Commercial Wind Energy Conversion Systems are not a use that may be approved or permitted as a Conditional Use in Wabaunsee County and are specifically prohibited.

The resolution in support of the amendments explained the rationale for the changes prohibiting commercial wind power anywhere in the county:

The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved.

The Kansas Supreme Court, in a unanimous decision which may be the first in the country to allow a local government to completely ban commercial wind power, upheld the ordinance prohibiting the wind farm construction on aesthetic grounds, finding it reasonable based on related objectives of protecting ecology, flora and fauna of the Flint Hills.

Here is the Kansas Judicial Branch report of October 30 on the decision.

Justice Lawton R. Nuss, writing for the court, noted that the Wabaunsee County Commission had identified these adverse effects of commercial wind farms:

The Flint Hills of Kansas, of which Wabaunsee County is a part, contain the vast majority of the remaining Tallgrass Prairie, which once covered much of the central United States and which is considered one of the most endangered ecosystems in North America.
Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. 
Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county, which make them “objectionable and unsightly.”
Wind farms would be detrimental to property values and opportunities for agricultural and nature based tourism.  The Flint Hills are unique in their ecology, heritage, and beauty.

The court found the ordinance reasonable when it assessed the totality of these permissible governmental objectives, the will of the people, and the wind farms’ lack of conformity with the county’s Comprehensive Plan.

The court left open the question of whether the prohibition might be a taking.  The County Board has argued the “whole parcel” rule – the Board thinks the owners of the wind rights should not be able to segment the wind rights from all of the other rights when they determine the impact on value.  If you are not familiar with the law of the relevant parcel, you may wish to read this article I wrote a few years ago: Rules for the Relevant Parce (double page version).

There is also a Commerce Clause claim still outstanding because the ordinance only allows wind power systems “to reduce on-site consumption of purchased utility power,” essentially limiting them to personal use rather than production and sale of power to others.  Briefs are due on both issues December 11 and oral argument will be on January 27.

Courtesy http://www.change.org/photos/wordpress_copies/cow.jpg

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

A couple of weeks ago, the South Dakota Supreme Court in Anderson v. Town of Badger held that a town had the power to grant a waiver of a distance requirement set by Kingsbury County for a CAFO. Click here for the decision.

Wait a minute.  Why wouldn’t you want to live near a CAFO?  What’s a CAFO?  It’s not Community Association Facility Operations.  It’s not Centralized Area of Fun Outside …no, it’s Concentrated Animal Feeding Operations, something akin to dinner time at my fraternity house in the mid-1960s…

Click here to read about a dairy CAFO proposed with 10,000 cows.   Of course, there’s an anti-CAFO group out there – F.A.R.M. – “Families Against Rural Messes” – http://www.farmweb.org.

In this case, it is a dairy operation on 320 acres, as I learned from the March 11-12, 2009 minutes of the Water Management Board where Richard Vendrig sought a permit for four wells 336 feet deep producing 200 gallons per minute for his proposed CAFO.  He testified that it would be a “zero contained facility, which means nothing wasted.”  Still, it has lagoons for the animal waste, although the manure will be treated and used in an organic farm operation.

Kingsbury County’s zoning ordinance allows local incorporated municipalities to waive the distance requirements. The county is rural – 5,815 people on 864 square miles.  Badger is one of thirteen townships.  It is tiny in area and population – 1.1 square miles and 144 people.

Here is downtown Badger, courtesy of Google Maps.

The county ordinance says that CAFOs can’t be closer than four miles from buildings in an incorporated area plus 440 feet for each additional 1,000 animal units over 1,000.

If the term “animal units” is a mystery to you, read this example of an ordinance.  Basically, it takes a bunch (flock, gaggle, covey, colony, troop, herd, swarm, drove, flange, shrewdness, kaleidoscope – I’m not making this up – click here) of small animals to be the equivalent of a big one, as in 50 chickens equals five pigs equals one cow.

Vendrig asked to build a CAFO two miles southwest of town, not in the town but in the county.  Can you say “new jobs”?  The Badger board of trustees granted the waiver and the neighbors sued.

I searched all over for information on Richard Vendrig and came up with nothing…except this:  he has a dairy farm already, in Canada, which is for sale.  Here’s a photograph of part of the 408-acre operation with a capacity for 300 cows courtesy of dairyrealty.com.

The listing reports that the Vendrigs have bought a farm in South Dakota and have told Great West to sell their farm at auction.  Another site, however, says the auction has been withdrawn.

Here’s an interesting fact from the Canadian listing (you don’t find this in most real estate listings), relevant to the CAFO part of the case.

“Manure Storage:
1 1/2 million gallon storage under slatted floors in barns
1 1/2 million gallon storage on Parcel #2 (circular pit)
Total of 3 million gallon or 1 1/2 years”

That sounds like a lot, but I did the math and 1.5 million gallons is two and one-half Olympic swimming pools, so call it five big swimming pools of manure storage…

The South Dakota Supreme Court found all the authority it needed, to uphold the trial court’s decision to dismiss the challenge, in the municipality’s right to contract.  The county gave the town the option to waive the distance requirement and the town chose to exercise its right to do so.  Simple enough.

As I was completing my final research for this, I discovered that Dean Patricia Salkin beat me earlier with a case note on the same decision. http://lawoftheland.wordpress.com.  Geez, it pains me to have Dean Salkin beat me to the punch.

I can add a little to the story, however.

I talked with one of the lawyers for the town of Badger, Gary W.  Schumacher, a senior partner with Wilkensen & Wilkensen in DeSmet, South Dakota (population 1,200), where Laura Ingalls Wilder lived – you can visit her homestead.

I also talked with Timothy G. Bottum of Morgan Theeler LLP in Mitchell, South Dakota, who represents Richard Vendrig.  It turns out, like many of these stories, that what happened in the end is much different than you would have guessed.

The county denied the conditional use permit required for the over 999 cows proposed — the build out, or maybe it’s hoof out, could have been 2,000-4,000 cows (MOOO!!) — so Vendrig appealed and the trial court upheld the county’s decision, using a standard of review that greatly favored the government.  This was the same judge who held for Badger (and in Vendrig’s favor) in the separation waiver case.  Here is the trial court’s decision. The standard is that the government will be upheld unless it “acted fraudulently or in an arbitrary or willful disregard of undisputed or indisputable proof.”  This considerable deference in South Dakota is to be expected — the state motto is “Under God, the People Rule.”   I’m moving to the land of the ring-necked pheasant to do government defense work. Maybe I’ll take up residence in Clark, known worldwide as the Potato Capital of South Dakota.  It seems like my kind of town. Clark is home to the famous Mashed Potato Wrestling contest.  And here they are going at it on August 1^st.

Attorney Bottum had researched the South Dakota Supreme Court decisions from such trial court judgments in favor of the government and couldn’t find a single reversal.  No appeal was taken, the time to appeal has run, and there is no permit for the CAFO.

So, for now there is no CAFO on the border of Badger.

Posted By: Joseph Van Eaton, Partner, Miller & Van Eaton, PLLC

Tucked into the Stimulus Bill, officially known as the American Recovery and Reinvestment Act of 2009,  there was nearly 8 billion dollars for expanding broadband availability in the nation.  According to Section 6001 of the statute, the broadband program was to provide service to unserved areas and enhanced services to underserved areas,  and also program dollars were to be made available on a competitive basis to link community anchor institutions and support public safety broadband services.  While there was not enough money to connect all anchor institutions or service all public safety needs, these funds would serve as an incentive to municipal leaders to create models that others could follow.

Almost six months after passage of the ARRA, on July 1, 2009 the Department of Commerce issued its Notice of Funding Availability (“NOFA”).  A NOFA establishes what funds are available for applicants, the timeframe for seeking these funds and the rules that govern applicant eligibility.  Miller & Van Eaton has created a web link to the governing documents and offers a PowerPoint to take the reader through the NOFA in a step-by-step process.

The bottom line is that there is wide spread disappointment in the NOFA.  This disappointment arises from two rules established by the Department of Commerce.  First, the NOFA mandates that no funds would be available for public safety or connecting anchor institutions unless the applicant can demonstrate that the project will reach unserved or underserved census blocks, as defined by the Department.   Second the NOFA allows all for-profit entities to compete for the funds so long as they agree to certain interconnection obligations. 

The net result is that urban America will likely be barred from competing for these broadband funds (except for more limited community computer center and broadband sustainability projects).  And incumbent telephone, cable and cellular providers which have failed to offer their communities broadband services in the past will now be the most likely recipients of the funds.

While advocates for local governments are right to be disappointed, there is no reason to give up.  The NOFA releases only about one-third of the available funds and the Department of Commerce has indicated it might be willing to refine the rules for further funding rounds of the program. 

You should make your voice heard at the Department of Commerce and with your congressional delegation.  The message is simple.  Don’t leave the urban underserved behind in the broadband age and tell Department of Commerce to give public safety a fair shot at demonstrating their broadband application could be a model for others.

Additional Online Resources

New Website http://broadbandusa.sc.egov.usda.gov/index.htm

Notice of Funding Availability (NOFA) for the first round of broadband stimulus grants http://broadbandusa.sc.egov.usda.gov/files/BB%20NOFA%20FINAL%20with%20disclaimer_1.pdf

Workshop materials http://broadbandusa.sc.egov.usda.gov/workshop.htm

Recovery.gov:  Tracks federal agency expenditures of American Recovery and Reinvestment Act monies: http://www.recovery.gov

Office of Management and Budget implementation guidance on stimulus spending: http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-10.pdf

National Telecommunications and Information Administration programs:  http://www.ntia.doc.gov/otiahome/otiahome.html

Rural Utilities Service programs: http://www.usda.gov/rus/telecom/index.htm

Federal Communications Commission on rural broadband: http://wireless.fcc.gov/outreach/index.htm?job=broadband_home

Full text of American Recovery and Reinvestment Act of 2009:  http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1enr.pdf

The Supreme Court released its decision today in the case of District Attorney’s Office for the Third Judicial District v. Osborne, opinion available here. In a nod to federalism, the Court held there is no due process right under the U.S. Constitution for an individual to obtain postconviction access to a State’s evidence for DNA testing. As the Court states in today’s opinion,

The elected governments of the States are actively confronting the challenges DNA technology poses to our criminal justicesystems and our traditional notions of finality, as well as the opportunities it affords. To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.

IMLA, along with the Council of State Governments and the National Association of Counties, submitted an amicus brief, available here.