Posted by: Patricia Salkin | December 26, 2009

Ban on Commercial Wind Farm Upheld Based on Aesthetics

After being contacted by a wind farm company that was interested in building wind farms in the county, the zoning administrator notified the Board (the county did not have any zoning regulations regarding wind farms at the time of the contact).  The Board then “passed a temporary moratorium” to accept applications for conditional use permits for wind farms while the county planning commission began to conduct hearings to update their zoning regulations.  The commission held a public hearing to discuss proposed changes, and the Board recommended updating the county comprehensive plan (which had not been updated since 1974). Several months later, the Board adopted the commission’s recommendations which detailed the county’s goals as to zoning regulations; for example, some of the recommendations included, among other things, land use patterns that allowed for controlled and smart growth; maintaining a rural character; attracting small business; and providing various housing opportunities. After the adoption of the plan, the Board, despite the commission’s recommendation to allow commercial wind farms, voted in favor of regulations of small wind farms but prohibited commercial wind farms.  The ordinance provides, among other things, that wind farms with towers 120 feet in height or more “would be incompatible with the rural, agricultural, and scenic character of the county.”

The Kansas Supreme Court upheld the Board’s action, finding that the Board complied with all procedural requirements as stated under K.S.A. 12-757(d) when it modified the recommendation.  The Court said that the Board’s prohibition of commercial wind farms was within their legislative powers, and, even assuming that it acted in a quasi-judicial manner, the Court said that Board nonetheless acted reasonably. The Court held that aesthetics, “nonconformance of the commercial wind farms with the county’s [plan],” and the citizens’ wishes were sufficient factors for the Board’s consideration.  Specifically, the Court noted the negative effects of commercial wind farms in the area: “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.”

Zimmerman v Board of Commissioners of Wabaunsee County, 218 P. 3d 400 (Kan. 10/30/2009).

The opinion can be accessed at:

 http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2009/20091030/98487.pdf

Read Dwight Merriam’s posting on the IMLA blog here

See a summary on the Wind Power Law blog here

Read a posting on Wind Watch here


Responses

  1. As a colonial-rooted Cape Cod native who firmly believes in the sanctity
    of our maritime heritage, I am writing to express my steadfast support for the Alliance to Protect Nantucket Sound. Based upon logic and reasoning, I am also conversely opposed to the Cape Wind project which seeks to despoil and rob us of the pristine nautical legacy bestowed by our forefathers. As a result of the profound damaging regional financial, ecological and public safety consequences Cape Wind would wrought upon us all, it should not proceed to fruition.

    The project poses a cogent danger to essential air and sea navigation. Siting the windfarm project in Nantucket Sound is a breach of the public trust. Contrary to their sham claims, the cost of the electricity which the project will produce would not be competitively priced. It would be an fiscal burden hoisted upon us without our consent by it’s absconding of undeserved taxpayer-funded subsidies, forced real estate devaluations, and lost revenues from commercial and tourism activities. Finally, it unnecessarily endanger a critical marine and wildlife habitat. The proposed Cape Wind Project must not become a reality which will forever doom our children and grandchildren to a ghastly socially inhumane legacy.


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