International Municipal Lawyers Association - Local Government Blog

Big Wind In Kansas Begets Another Battle | October 31, 2009

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.

flinthills

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.


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1 Comment »

  1. […] Read Dwight Merriam’s posting on the IMLA blog here […]

    Pingback by Ban on Commercial Wind Farm Upheld Based on Aesthetics « LAW OF THE LAND — December 26, 2009 @ 5:41 am


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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