Posted by: Patricia Salkin | July 10, 2019

OH Supreme Court Grants Motion to Strike Claims Stemming from Wind Farm Application

This post was authored by Matthew Loeser, Esq.

In 2014, the Board approved Greenwich Windpark’s application to construct a wind farm, subject to 53 conditions agreed to by Greenwich Windpark and the board’s staff. The wind farm would consist of up to 25 wind turbines and was designed to operate at an aggregate capacity of 60 megawatts and to generate 210,000 megawatts of electricity per year; however, in its original application, Greenwich Windpark proposed only one turbine model for its project. Greenwich Windpark therefore filed a new application and Greenwich Neighbors United (“GNU”) intervened. According to GNU, some of its members owned property near the proposed wind farm and filed comments and objections opposing Greenwich Windpark’s application. In 2016, the Board approved Greenwich Windpark’s application without holding a hearing, and thereafter denied GNU’s request for a rehearing.

On appeal, GNU argued that the Board acted unreasonably and unlawfully by refusing to subject Greenwich Windpark’s application to the current minimum turbine setbacks applicable to any certificate “amendment.” Here, the record reflected that the Board found that Greenwich Windpark’s new turbine models were “adequately covered by the existing conditions of the certificate” and that the impacts of the proposal did “not require a change to the existing certificate.” Accordingly, the court rejected GNU’s first contention.

GNU next claimed that the Board acted unlawfully by permitting Greenwich Windpark to waive the minimum setback requirements without first obtaining waivers from “all owners” of property adjacent to any portion of the proposed wind farm. In response, the Board argued that R.C. 4906.20(B)(2)(c) required a waiver only from those landowners who owned property adjacent to a turbine that fell within the minimum setback.  The court found that under GNU’s theory, an owner of property adjacent to any portion of a wind farm, which could cover thousands of acres and be the equivalent of dozens of square miles, could prevent the construction of a turbine miles away. Instead, the court found the statute allowed a turbine to be placed within the minimum setback only if the neighboring landowners who were directly impacted had waived application of the setback to their particular properties.

GNU also argued that the Board was required to hold a hearing and that by refusing to do so, the Board violated R.C. 4906.07(B) and deprived GNU of due process. Pursuant to R.C. 4906.07(B), upon receipt of an amendment application, the Board shall hold a hearing “if” the proposal would result in certain changes to the facility. After reviewing Greenwich Windpark’s application, GNU’s comments and objections to the application, and the investigative report prepared by the Board’s staff, the Board determined that Greenwich Windpark’s proposed changes did not require a hearing under R.C. 4906.07(B). Accordingly, the court rejected this claim.

Lastly, Greenwich Windpark moved to strike the supplement GNU filed with its reply brief and the portions of the reply brief that relied on that supplement. In so doing, Greenwich Windpark contended that the supplement contained materials that weare not part of the record. The record reflected that most of the materials were dated after the Board issued the orders on appeal. Since the appellate counsel could therefore not properly refer to those acts, and GNU failed to allege a compelling reason to do so, the court granted the motion to strike the documents that were not part of the record and the portions of GNU’s reply brief that relied on those documents.

In re 6011 Greenwich Windpark, L.L.C., 2019 WL 2527370 (OH 6/20/2019)

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