Posted by: Patricia Salkin | August 28, 2012

OH Sup. Ct. Upholds Siting Board’s Decision to Approve Wind Turbines

Buckeye Wind, L.L.C. developed a plan to build 70 wind turbines over approximately 9,000 acres in Champaign County, Ohio. The wind farm’s expected generation capacity exceeded 126 megawatts, qualifying it as a “major utility facility” which required approval of the siting board. In April 2009, Buckeye filed an application with the board and a group of neighboring landowners opposed the application on the grounds of noise, property setbacks, and effects on property value. The board rejected most of the neighbors’ requests. The county also sought financial protection through bond requirements to cover costs associated with the turbines. The board agreed to require a $5,000 bond. The county, who was dissatisfied with the amount, along with the neighbors appealed.

The neighbors argue that the board has failed to hold a full hearing and consider testimony from the opponents before acting. However, the court does not accept this argument. The appellants were active participants throughout the administrative process and were allowed to intervene shortly after the initial application was filed. Also, the intervening parties were allowed an opportunity to be heard at a public hearing.

The second argument from the appellants claims that the board improperly delegated its decision making authority to its staff because the order allows staff members to approve new sites, review and accept plans regarding the design and siting of electric-collection lines, resolve the distance a detached turbine blade could be thrown and determine the model of turbine to be used. However, the issues challenged by appellants must be finally resolved by the board before a certificate may be issued, and the certificate is allowed to be issued upon such conditions as the board considers appropriate. Furthermore, in establishing each condition of Buckeye’s certificate, the board followed statutory requirements for each one. The board did not improperly delegate its responsibility to grant or deny a certificate.

In regards to the appellant’s specific complaints, the court finds that the board acted appropriately. The proposition that the noise limits are unreasonable is not adequate since an acoustic consultant showed that the proposed limits were unreasonable and would prohibit wind energy in Ohio. Also, the claim that the setbacks are not supported by the record is not applicable since numerous conditions in the order ensure their adequacy.

The court concludes that the board’s order should be affirmed since it followed statutory requirements and further hearing is unnecessary. The board has exclusive control over wind farms such as the one proposed by Buckeye and an order shall be reversed only when the court finds it to be unlawful or unreasonable. Here, the board reasonably drew the line regarding the issuance of the certificate and the imposition of its conditions. In addition, all of the relevant issues were debated at length and the public was provided with a full opportunity for hearing, therefore any additional hearing is unnecessary.

In re Application of Buckeye Wind, 966 NE 2d 869 (OH 3/6/2012)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-878.pdf


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