Wind energy suit will go to trial By Anne Adams • Staff Writer
MONTEREY - Highland New Wind Development and the county took a double hit Monday, and for the first time, opponents of industrial wind energy felt they were given credibility by the system.
 | | County attorney Melissa Dowd helped defend Highland's board of supervisors Monday. The county argued for dismissal of the suit. |
|
A substitute judge discounted HNWD's contention the case should be dismissed on a technicality or as irrelevant and then agreed with the plaintiffs the matter should go to trial where opponents can put evidence on the table for judicial review.
Landowners' attorney David Bailey was more than pleased with the result. "I think I won everything," he said Wednesday. "I think (my clients) are happy especially because I had told them this is an uphill battle, to attack a decision of a governing body."
In snow flurries and bitter cold Monday morning, about 50 citizens attended the hearing, the first involving the lawsuit filed in August by 32 landowners concerning the county's vote to allow an industrial wind turbine facility to be built on one of the highest ridges in the westernmost edge of the county.
 | | David Bailey represents 32 Highland residents and landowners suing the county; they allege supervisors acted illegally. |
|
Supervisors' 2-1 decision last spring to grant HNWD a conditional use permit for the project, opponents allege, was illegal and should be voided. The county, in its defense, filed a series of motions asking the court to dismiss the case. (See related story for details, page 4.)
Retired judge Paul Sheridan of Arlington was appointed by the state Supreme Court in October to hear the case.
"It was clear to me this judge believed these plaintiffs deserve their day in court. We weren't surprised," said county attorney Melissa Dowd Tuesday of the decision. "I was very impressed with this judge. He had read everything in the two-inch thick pleadings, and every case cited, along with others we didn't. He was very well-prepared."
One of the plaintiffs, Patti Reum, lives in close proximity to the project site. Reum and her husband, longtime Highland resident Tom Brody, operate their business within sight of where turbines are proposed.
Reum felt the judge was experienced, well-versed in this type of case, and vested in having all information on the table. "For the first time, it seemed that someone was willing to listen to the evidence that says that wind energy may not be the green panacea that wind companies proclaim it to be and that our ridges are not the right place for them," she said.
Another plaintiff, Charlotte Stephenson, said, "I am grateful that we will have an opportunity to be heard by a prudent judge who is very interested and willing to listen to the events that have transpired this past year which ultimately lead to the reckless unfounded decisions supervisors (Jerry) Rexrode and (Lee) Blagg have burdened our county with."
Stephenson is also president of Highlanders for Responsible Development, a non-profit, grassroots group raising money to help pay legal fees for the lawsuit, but said she did not want to speak on behalf of HRD about Monday's outcome.
HRD's vice president Randy Richardson, however, said the group was glad the lawsuit would go forward. "I couldn't speculate as to the final outcome, but we're happy (these landowners) will have their day in court," he said Wednesday. Richardson, who attended the hearing, found the judge "astute and knowledgable," and said it seemed to him attorneys on both sides had done a lot of homework. HRD is still seeking contributions to cover the legal expenses. "HRD is not a plaintiff in the case but some of our members are," he said. "We as a group are very interested in the outcome. Personally, I hope (Judge Sheridan) realizes how important this case is to the state as a whole. I'm not entirely opposed to wind power, but I am opposed to it right here, right now."
Bailey told The Recorder he, too, was pleased with Sheridan. "I like law-and-order judges who keep control of their courtroom … a good law-and-order judge looks at the law very closely," he said Wednesday. Judges unfamiliar with land use decisions, he said, can often say to themselves, these citizens will lose anyway and just move on. "This kind of judge is better for our side," said Bailey. "And I understand he can be very hard on counsel who aren't prepared."
There's an important distinction between trying fact and putting the facts into legal perspective as to how they're applied, Dowd explained. In most cases, a jury is the trier of fact and the judge rules on matters of law. In this case, Sheridan will judge both. "The important thing is, we have a well-educated, professional judge," she said.
Chris Singleton, serving as Bailey's co-counsel, called the judge's decisions a "clean sweep" for the plaintiffs, but noted the rulings meant "nothing except that the case is still in court."
Most important, he said, was Sheridan's refusal to accept the proposal by HNWD that would have effectively ended the case. "Had he done that, we would essentially have been dead in the water."
Brian Brake, representing HNWD, had made a motion arguing Bailey's suit listed the wrong party. The plaintiffs should be suing the "Highland County Board of Supervisors," not "Highland County," as was listed, he said.
As the judge openly weighed both sides of Brake's argument, Singleton said he was afraid Sheridan might come down on the side of the applicants. "He seemed to be wrestling with it," he said.
Bailey said the motion surprised him mainly because there's no case law to support Brake's position. He called it a "creative and inventive" strategy, and was glad Sheridan did not rule in Brake's favor since the issue would have ultimately ended in the Virginia Supreme Court. "In one sense, I would have been happy to take it to the Supreme Court because it would have delayed everything," Bailey said. "But this judge knew it would have put (HNWD's) permit in limbo, maybe a year and a half … and if (our position) had been upheld, it would have come back and we'd have to start all over again)."
Though HNWD and the county argued the plaintiffs had no legal basis to bring a lawsuit, the judge ruled against them and allowed a trial.
"This judge, in my opinion, believes on some issues that have been raised, there's some evidence he needs to see to make a judgment," Dowd said. Governing bodies are entitled to judge the stuff that's given to them and make a decision, she explained, and just because some citizens might disagree doesn't mean the decision was arbitrary or capricious. The plaintiffs have a difficult burden, she added. "(David Bailey) has to prove the board of supervisors' action was not fairly debatable … The court cannot look at supervisors' personal intent or motives. They have to look at the action taken.
"Judge Sheridan knows he's limited on what he could question, and it's our understanding there are very few things that could be challenged," Dowd said.
Bailey successfully argued his clients had evidence the court needed to see, and that the county needed to provide evidence supporting its permit decision. Going to trial forces the county to explain how supervisors reached their conclusions in granting the permit. "They can't just say, ââ¬ËWe considered wildlife effects.' They have to show what they did, and how they decided to mitigate them," Bailey said as an example.
There are some issues the judge can decide simply as matters of law. For example, Bailey's clients allege supervisors did not put HNWD's permit application before the planning commission to review for consistency with the comprehensive plan. That, Bailey contends, is something that must be done according to the law. "They did not do it," he said, though the county will probably argue supervisors didn't have to.
Bailey had filed a prior suit against the county for its decision to change the zoning ordinance, specifically on the way exceptions to height limits are handled, which is still pending. He says if the county were to lose that suit, and he's confident it will, the entire conditional use permit application process will have to start all over again.
Dowd said despite the judge's ruling in favor of the plaintiffs, "I truly believe - and this is total supposition on my part - that we technically carried our burden to have the case stopped. But because (the judge) could see this had been hard-fought already, he said to himself, these people deserve the opportunity to present their evidence … He could see the intensity of the issues."
Singleton, for his part, said he was confident going in none of the motions filed by the county or HNWD had any merit. For him, the judge's rulings were further evidence the strong legal presumption in favor of decisions by governing bodies in matters that can be fairly debated is not as pervasive as in the past. "The pendulum may be swinging the other way," he said.
From the county's perspective, Dowd says she's sorry Sheridan ruled in favor of the plaintiffs because of how much money the county will spend on its defense. But generally speaking, she's glad to see a judge bend over backwards in granting the public opportunity for more input.
Before the case is heard in June, there will likely be some pre-trial motions asking the judge to direct that only evidence dealing with certain issues be allowed, Dowd said. "We'll do our best to cooperate with each other to narrow the issues before they're presented at trial," she said. "I'm hopeful Mr. Bailey will be mindful of the burden on the county … and by the time we get to trial it's likely to involve some very narrow, boring issues."
As the attorneys move forward to prepare, Bailey could decide to file a motion for summary judgement if he believes he has enough evidence at some point for the judge to rule in his clients' favor before June. That, he says, would save a lot of money on both sides if the judge were to rule in his favor.
Bailey says despite the fact that it's hard to win against a local government in land use decisions except on matters of law, he feels strongly there is a solid case against this board of supervisors.
"They're in trouble in so many places it's not even funny," Bailey said of the county's permitting decision. "That's what happens when you try to shove something through like this. You forget about the process. You get heady."
Supervisors were either unavailable or declined to comment this week on Monday's hearing. County administrator Roberta Lambert said it's doubtful they would, since they had been advised not to discuss a pending lawsuit.
Dowd believed the end result of this week's hearing was satisfactory to all involved. "Both sides were given something; both sides were backed up a little," she said. "This judge was thoughtful and reasonable, which is the best you can ask for.
"I think the pleadings have been quite fine," she added. "There isn't any animosity among the attorneys. We're professionals, and Judge Sheridan responded very positively to that."
| 
