Plaintiffs trump county's bid to dismiss suit Trial date set: June 14 in Highland courthouse
By Anne Adams • Staff Writer
MONTEREY - County attorneys argued vigorously Monday before the judge and a nearly full courtroom, but were unsuccessful in having one of the lawsuits brought against Highland to contest its decision permitting an industrial wind utility here dismissed.
The retired 17th circuit court district judge on loan from Arlington ruled almost across-the-board in favor of those suing the county, allowing a trial to move forward. As a result, the 32 landowners who filed suit Aug. 10 will have their day in court - June 14, 2006.
Judge Paul Sheridan, who was appointed to the case by the state Supreme Court this fall after local Judge Thomas Wood requested a substitute, heard well-honed arguments on both sides. Ultimately, he said, he would allow the plaintiffs to proceed with their case and bring evidence before the court in a trial.
Wood had stepped down because he felt too close to this area he's served regularly, though he had said he could hear the case if he needed to.
Next spring, plaintiffs will argue the county's decision to grant a conditional use permit to Highland New Wind Development was illegal and should be voided. It will mark the culmination of a year-long process that began when landowners and residents opposed to the project filed suit a few weeks after the county paved the way last spring for the company to construct a 39-megawatt utility on Allegheny Mountain consisting of some 18-20 wind turbines standing 400 feet high. Since it received a local permit, HNWD has moved along with its plans, and is currently awaiting an application review from the State Corporation Commission for a certificate to operate.
Who filed what?
Attorneys defending the board of supervisors were county attorney Melissa Dowd, and Greg Haley, of Roanoke firm Gentry Locke Rakes & Moore, hired by Highland after the suit was filed. Dowd and Haley had filed two motions, one requesting complete county documents be included in the record and one asking the suit be dismissed on the grounds the plaintiffs had no legal basis to sue.
Attorney Brian Brake of Keeler Obenshain in Harrisonburg represented HNWD and its owners, Mac and Tal McBride. Brake filed a motion to consolidate this case with the suit filed previously on the county's height ordinance change, two motions similar to the county's briefs, and one on a procedural issue. His clients are named in the suit, but only as defendants with a vested interest in the outcome as holders of the conditional use permit; no allegations of illegal actions were made against HNWD. Brake's representation in legal terms is entirely separate from the county's.
David Bailey of Beaverdam represented landowners making allegations. He was aided by co-counsel Chris Singleton of Warm Springs. Bailey filed both this suit against the county for its permit decision, and a prior suit against the county for its decision to change the way exceptions to height limits are addressed by Highland's zoning ordinance.
The hearing Monday was not evidentiary - the county has not yet answered the claims in the lawsuit. Rather, it was for the judge to decide on the motions filed.
Wrong defendant?
At the outset of the proceeding, HNWD's attorney attempted to get the suit dismissed because the defendant was named as "Highland County," instead of "Highland County Board of Supervisors."
Brake claimed case law in Virginia made it clear the board of supervisors should be the proper party to sue, and in order for anyone to appeal the supervisors' decision on the permit, the board itself would have to be named as defendant.
The arguments revolved around the proper definitions of "county" and "local governing body" and the distinction between the two. Naming "Highland County," Brake said, didn't satisfy legal requirements and he asked the judge to dismiss the case on those grounds.
Bailey countered Virginia operates under the Dillon Rule, in which all local governments are strictly controlled and legislated by the state, and any ambiguity is resolved under state statutes that say who to sue - a locality - and define locality as either "county" or "local government."
"They're synonymous," Bailey said, adding cases used to support Brake's position did not specifically deal with the question. "I can't have my case dismissed for suing who I'm supposed to sue," he said.
The judge said he wished it was as clear to him as it seemed to be to the attorneys, but he could not construe the case cited by HNWD as giving him any clear guidance. "Highland County remains a proper party," he said, ruling in favor of the landowners on the issue.
All evidence in the documents, county says
Attorneys for the county and HNWD then requested certain documents be included in the plaintiffs' claim so the judge could consider all the information in making his decision. The documents included the entire comprehensive plan and zoning ordinance, plus several sets of meeting minutes. Attorneys argued those contained everything the court needed to prove supervisors did a proper review of the project permit application.
Bailey argued, however, those documents were simply part of the evidence that would come up in trial. He didn't object to the documents' authenticity, he said, but they should not be attached to his clients' pleadings if they were going to trump their allegations.
Sheridan said he understood the documents were self-serving for the county, but believed they did reflect intense input the county received, and in this situation, the case called out for including them. He granted the motion in favor of attaching the documents, but made it clear that would not affect his ruling on the request for dismissal. Sheridan noted Bailey's objection and essentially agreed the mere act of attaching them did not mean he would rule on them as a point of law.
Should the case be dismissed?
The issue at the heart of Monday's hearing was the county's claim that those bringing suit had no legal basis to do so. Attorneys for Highland and HNWD requested the suit be dismissed in the form of a "demurrer" filed in response to the lawsuit's allegations.
A demurrer is essentially a legal briefing asking for a case to be dismissed on the point that even if all the facts alleged by the landowners are true, there's still no legal basis for a suit.
Haley argued on the issue of what's considered "fairly debatable," a legal term used in part to describe the legislative process of making law and determining public policy. When such a process is deemed "fairly debatable," it generally means that despite opposition to a decision like this one, the court finds the governing body reached conclusions on which reasonable people could disagree. In those circumstances, it is generally presumed the governing body went through its process correctly.
The court needed to decide whether supervisors appropriately investigated the effects of HNWD's commercial wind project before granting the permit, he said. If the evidence showed they did, the issue was "fairly debated" and the judge must therefore sustain the county's decision and dismiss the lawsuit.
Bailey argued taxpayers have a right to contest a land use decision in court, and a local government "can't come in with motions and argue it's fairly debatable and say the issue's over. If that were the rule," he said, "there would be no judicial review … There is a process to be followed."
Zoning, said Bailey, is a locality's way of handling how what one person does with his property affects other citizens and protects their rights. "It's the grease that makes this process work," he said. Once a decision moves into court, complaints are filed and demurrers made, then the case goes to a bench trial situation, where citizens can present their evidence. The board of supervisors must rebut that evidence, and only then does the court decide if it was fairly debatable, he said.
Haley pointed out courts may not substitute their judgement for that of a local government, only determine whether there was a reasonable basis for its actions. Based on facts, he said, the court needs to ask only whether reasonable people could differ on the matter. In an attempt to show supervisors' decision was fairly debatable, Haley described how Highland's comprehensive plan points out the area's environment and scenic beauty are important, but that the plan also calls for balancing that protection among the needs for economic development. The plan says improved, quality education and alternative tax revenue sources are important, too, he said.
Haley outlined some things supervisors did before granting HNWD's permit, including reviews conducted by Highland's industrial development authority and planning commission. "What evidence would the plaintiffs put on in this case that's not already been reviewed (by the county)?" he asked. The plaintiffs allege a review was "short-circuited" somehow, but the facts are inconsistent with that, Haley said, adding it certainly wasn't enough to prove supervisors were arbitrary and capricious in their decision, a claim also made by the plaintiffs.
Plaintiffs allege the board's decision precluded a review by the planning commission. One of the conditions attached to HNWD's permit was that planners review the actual placement of the facility. Dowd said the court, at this stage, needed to decide whether the planners' review had to come first, and argued state law does not say. "There's just no guidance," she said, adding under the Dillon Rule, a governing body can overrule a planning commission.
One of the allegations against the county is that supervisors prevented a study of wind energy effects during the comprehensive plan review. "Even if that's true, is that a fact significant enough to call (their decision) into question?" Haley asked.
Plaintiffs also allege the county did not conduct an economic development analysis. But Haley pointed to wind plant site visits, consultations with tax assessors, and an evaluation by the county's own appraisal service as evidence they did. In addition, Haley asked the judge to look at conditions attached to the permit, including setback requirements, noise provisions, and a visual impact study. More importantly, he said, the board required HNWD to provide environmental studies as required by the State Corporation Commission before it could get a building permit.
As to the suit's contention the comprehensive plan review should have been completed prior to granting the permit, Haley said state law is silent as to what happens when a plan review is not completed every five years as required. "We suggest it is a directory, not mandatory, deadline, and doesn't invalidate (the plan)." The question, rather, is even if the plan was beyond its five-year requirement, "what impact did that have on the conditional use permit decision? They did consider, specifically, the comprehensive plan."
The fact that wind energy is not addressed in the plan is irrelevant, Haley said, because any number of "high-impact" land uses are not listed, either. "It would be very unusual for a comprehensive plan to talk about a specific use." Dowd supported Haley's position, saying Bailey suggests because wind turbines are not mentioned in the plan, the county can't consider them. "We'd be up a creek without a paddle if we had to have every (land use possibility) that's requested (in the plan)."
Bailey responded that because the plan's review was not complete in time, that prevented the plan from addressing wind turbines. Plaintiffs submitted a petition to supervisors stating the board should hold off on its permit decision until after the public had a chance to review the plan. "The (board of supervisors) rejected that petition. They didn't even answer it," he said.
Virginia's Dillon Rule states the planning commission gets to review changes to the plan first, as part of the "constitutional grease" for the process, Bailey said, and unless a feature is already shown in the plan, no structure, park, public building, or public utility, whether publicly or privately owned, can be approved unless and until it's reviewed by planners. "The planning commission approves the comprehensive plan because the comprehensive plan is the way the people speak. This provides the mechanism where people get to have input." If a board says it's going to go ahead and grant a use not yet reviewed, "that defeats the plain language of the statute and they've just railroaded this job right through," he said.
At this point, he added, the county is trying to support its decision by saying after the SCC reviews the matter, then the county will go back to the planning commission. "That's a sham," Bailey said, arguing the reason supervisors are doing it this way is because they know they can't get approval from the existing planning commission.
"I don't know what else the county of Highland could've done," Dowd countered. "I don't think that's railroading anything. I can't imagine what would show this was not fairly debatable," she said.
That prompted judge Sheridan to say, "The court has an underlying uncertainty. I'm picking up on what the county attorney is saying - what is it I'm going to hear at trial (that's not already documented)?"
Bailey gave one example: The allegation by citizens the turbines were going to result in huge bat kills. "The county says, no, I don't think so … That's insufficient rebuttal evidence," he said. Another was noise. Bailey says plaintiffs have evidence about noise created by turbines that is not covered in the allegations, and noted the county did not set a decibel limit in conditions attached to the permit.
The judge stressed courts are not to overturn local government decisions; state law is clear that local governments are more attuned to policy needs of their localities. So, he asked, "What do we need to do to make this judicial review?"
"Require the county to answer," Bailey said.
Brake told the judge if a trial were held, there would be nothing new to learn that wasn't already in evidence in county documentation.
"What if you're off by 1 percent?" Sheridan responded.
Brake said, "Not only do you have their side of the story, you have our side of the story. You can decide if it's fairly debatable. If the court simply finds there's some reasonable basis (for the county's decision), the Supreme Court says that's the end of it."
But Sheridan remained concerned there might be evidence, even if only a little, that has not been produced. "It seems in this judge's view to be incomplete. I'm overruling demurrers." He said there needs to be a "proper sense of justice" in the form of a court review. "But this is not a start-over," he stressed. Sheridan said he did not want those opposed to the project to give their opinions again in court. "I only want to look at what's appropriately reviewable."
The judge said he understood the county was "cloaked with a presumption of validity." But, he said, "I'm unwilling to rule as a matter of law that all (evidence has been heard) ... The court's going to allow the plaintiffs to present their evidence."
The other lawsuit
Bailey noted the county's decision on height had also been challenged, and a lawsuit he filed prior to this one is pending.
In April, before HNWD was granted a permit, supervisors changed the zoning ordinance so that exceptions to height limits now require a conditional use permit approved by them, instead of a variance approved by the board of zoning appeals after Dowd advised them the ordinance was not clear.
Bailey argued the height ordinance case should be heard first. "What they (the county) assert is that the board has the power to issue conditional use permits … and the board doesn't have to have standards in place for every use," Bailey said. "I claim that's illegal." He pointed to statutes that say ordinances for height shall be uniform for all structures in each district. "I've never seen one before that's not," he said. The county's change now makes height exceptions on a case-by-case basis as conditions on permits, he said. "There's no authority for that. None."
Brake had filed a motion on behalf of HNWD asking for the two cases to be consolidated; both involve a similar set of plaintiffs and arguments.
"They may be redundant, but (that case) is not before this judge," Sheridan said. Unless he was appointed to take up that issue, he could make no rulings on whether they should be consolidated. If Judge Wood wanted to recuse himself from that case also, Sheridan indicated he would be willing to hear both.
Dowd agreed to contact Wood and find out what he would like to do.
All plaintiffs have standing
The county argued only four of the 32 landowners bringing suit had standing to do so - Pen Goodall, and Ralph, Timothy, and Chris Swecker - as adjacent landowners. "The rest are at some distance" from the project site, and may or may not see the wind turbines, Haley said. Dowd argued members of this community needed to understand what it meant to have standing in a case so that not just any group of people believes they could file a lawsuit on a decision and think they automatically have standing to do so.
But Sheridan said he would allow all those bringing suit to remain as plaintiffs.
Trial date set
Those matters settled, the court moved on to establish a timetable and guidelines for the coming trial. Bailey told the judge he would like to see all the county's documents and board minutes. Dowd said she'd already given him everything the county had, but Bailey said he'd like to be sure. The judge instructed the two of them to work it out and he'd get involved only if needed.
Bailey said he did not intend to depose members of the board of supervisors, as their motives were irrelevant, but he may want to depose the applicants, Mac and Tal McBride. "I may have some things (from them) I need to know about," he said, and told the judge he would need at least six months to prepare for trial.
HNWD's attorney said his client had "a large financial commitment" involved and would like to move along faster. But Bailey pointed out the project's SCC review may take at least that long to complete, and didn't feel the trial schedule would interfere with the project plans.
Sheridan said he did not want things to drag on, given the enormous financial burden on everyone involved, but he understood the responsibilities of attorneys on both sides, and set a June 14 trial, expected to last two days.
What next?
Dowd, Haley and Brake have two weeks to file responses to the suit on behalf of their clients. They will take each count alleged by the plaintiffs and either admit it, deny it, or say there's insufficient information to answer.
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