Commercial wind zoning ban in Kansas
In what may be a first in the nation, the Kansas Supreme Court approved a county’s outright zoning ban of industrial wind turbines, defined as those over 120 feet or 100kw 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”. Owners of land and of wind rights had challenged county zoning decisions banning such facilities.
On the appeal of a lower court case won by the county, the court unanimously upheld as reasonable under state statute Wabaunsee County’s decision to ban such turbines. The county is home to the Flint Hills and some of the last remaining tall grass prairie -and its denizen, the prairie chicken- in the country.
The court agreed that the Board of County Commissioner’s “findings could reasonably have been found to justify its decision: that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and for that reason should be prohibited.” It also opined that relevant factors included commercial wind farm noncompliance with the county’s comprehensive plan and that a ban was in keeping with the wishes of residents.
The court noted that reasonableness of action by the Board was presumed; overcoming the presumption appears to require what in New York state would be the presentation of sufficient factors demonstrating an arbitrary and capricious action. Another factor viewed favorably the court was that the zoning allowed smaller turbines; the county’s was not an outright ban of all wind facilities.
The court has ordered the parties to submit supplemental briefs on federal issues: “whether the [lower] district court erred in dismissing the claims alleging that the Board’s decision amending the zoning regulations violated the Takings Clause and the Commerce Clause of the United States Constitution.” Per the court, briefs on those issues are due December 11 and a second round of oral arguments has been scheduled for January 27, 2010.
The case is Zimmerman et al. v. Wabaunsee County (Appeal No. 98,847, 10/30/2009)
KidWind and Pandion announce “WindWise Education” program for grades 6-12. “Pandion and KidWind launched WindWise Education at the annual conference of the Science Teachers Association of New York State (STANYS) on November 2, 2009. WindWise Education is a comprehensive curriculum for grades 6 to 12 that explores the dynamic field of wind through hands on physics, engineering, biology, math, and earth science activities.” I’ve met the KidWind folks; they are a dedicated group. (Pandion, 11/2009)