Small Town News

Frost details meanings of wind farm decision, order

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The Kansas Supreme Court's recent decision was primarily in favor of Wabaunsee County, but doesn't yet let any party, the plaintiffs, interveners or defendants, off the hook.

Wabaunsee County Commissioners received an update from their attorney in the wind turbine case, Bill Frost, and asked for him to discuss what the decision means in an open meeting, but asked for an executive session to discuss strategy.

"The Supreme Court has rendered a rather lengthy opinion on Zimmerman versus Wabaunsee County," Frost said.

The case, in which commissioners banned commercial wind energy systems from Wabaunsee County, citing ecological, scenic and heritage concerns, was appealed to the Kansas Supreme Court by landowners and interveners owning wind rights, and the court issued an opinion Oct. 30.

Frost said the 58-page ruling decided about 13.5 of 15 issues that were before the court.

"All those issues they decided, they decided in your favor," Frost told commissioners.

He said these include deciding that the action taken by commissioners was reasonable and did not violate the contracts clause, among others.

"The opinion is not only favorable to the county, but in a lot of respects, complimentary to the county," Frost said.

"The order really is more what we're going to talk about," he said, He said the order is that attorneys for each party rebrief some lingering issues and file those additional briefs by Dec. 11. A second round of oral arguments is scheduled to take place Jan. 27 at the Kansas Supreme Court.

Frost said one complicating factor is the interveners, who had real estate in the county and sold it, but retained the wind rights.

He said this case may end up determining whether or not wind rights are an investment that is ownable in the State of Kansas.

He said similar laws in other states equate wind rights to mineral rights.

However, Frost said the second issue mentioned in the order is a big one.

"Both parties have suggested that this resolution constituted a taking of their property," Frost said.

He said in his original brief he cited law that he believes outlines the requirements for taking by regulation, in which a regulation doesn't physically do anything to property but does have an impact on it.

He said the interveners only own wind rights, which begs the question of whether, when analyzing a taking, the court should look at rights one-by-one or as a whole. The commission, via Frost, has argued that a taking would represent depriving the landowner of all economically viable uses for the property.

The court asked each party to analyze whether Kansas follows or should follow the "aggregate approach" of looking at all rights as a package, as suggested by the commission.

Frost also said the court questioned whether the commissioner's decision violates the Commerce Clause of the Constitution, which says states shall not do anything to inhibit interstate commerce.

Frost said the plaintiffs allegation is that not allowing commercial wind energy systems but allowing individuals to build smaller systems to offset bills on their own site violates the commerce clause.

"It's a little unclear what the plaintiffs are suggesting," he said.

The plaintiffs have been asked to tell the court how the law violates the commerce clause and the commission to tell how it doesn't.

Each party also was instructed to outline whether the case should or shouldn't be sent back to district court for discovery.

Frost said all the information released by the court indicates that the commission's action was reasonable, and that it complied with state law in its procedures.

He said the takings issue would be the difficult part as the court determines whether or not a valid, reasonable zoning decision can result in a taking.

Frost said if the Kansas Supreme Court finds that a taking may have taken place it will send the question back to the district court to determine via trial whether a taking did occur.

The commission then went into a 25-minute executive session with Frost to further discuss the litigation.

In other business, the county received three bids for a Ford Explorer that had been used by the health department.

Commissioners discussed their discomfort with the way their last bidding process turned out. They said a number of constituents had called and complained about the commission accepting a bid pledging a certain amount over the highest bid.



Copyright 2009 The Wabaunsee County Signal-Enterprise, Alma, Kansas. All Rights Reserved. This content, including derivations, may not be stored or distributed in any manner, disseminated, published, broadcast, rewritten or reproduced without express, written consent from SmallTownPapers, Inc.

© 2010 The Wabaunsee County Signal-Enterprise Alma, Kansas. All Rights Reserved. This content, including derivations, may not be stored or distributed in any manner, disseminated, published, broadcast, rewritten or reproduced without express, written consent from DAS.

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