Hot Springs & Monterey, VA

Judge dismisses 2 wind suits Permit decision still goes to trial at end of June by will o'connor • staff writer MONTEREY - Highland County officials have prevailed in two of five legal challenges to decisions surrounding Highland New Wind Development's conditional use permit for a commercial wind facility. Tuesday, substitute circuit court judge Paul Sheridan ruled in favor of the county in two of three summary judgments brought by citizens opposed to the decisions granting local approval for the 39-megawatt wind energy plant. But despite the county's request for dismissing all lawsuits, Sheridan ruled a full trial must move forward as scheduled for the end of this month. Arguments are now limited to whether supervisors acted arbitrarily and capriciously in making the decision to grant a permit, and whether they followed their own ordinance and acted within the bounds of the comprehensive plan. Land use attorney David Bailey, representing Highland residents and landowners who filed suit against the county after the decision, requested three summary judgments from the court: • A request to void the county's change to its height ordinance, from a variance for exceeding height to a conditional use; • A challenge to the county's decision to have the planning commission perform a 2232 review of the utility after the permit had already been granted; and • A request to find the conditional use permit void because supervisors had failed to follow county ordinances. Height ordinance changes Bailey argued that by turning height into an issue determined by conditional use, Highland supervisors had "unilaterally deleted" the county's height ordinance. By wiping out Highland's uniform regulations on height, supervisors were opening the door to arbitrary and capricious decisions, Bailey said. "You can't use discretionary ‘I know it when I see it,' decision-making," said Bailey. The move had infringed on the rights of landowners, who should have some level of predictability about what is allowed on and around their property, he said, and supervisors had opened the door, so this type of development could happen anywhere. The county's attorney Greg Haley argued Highland's height ordinance was still in place and is uniform. Buildings are limited to 35 feet; accessories are limited to 60 feet throughout the county. Anything above that requires a conditional use from supervisors, but there is an analytical process to determine whether the board grants the conditional use, he said. "It's not like there's no height ordnance," Haley argued. Sheridan said the issue was "a difficult call," but denied the request for a summary judgement from Bailey, and dismissed the citizens's suit altogether. 2232 review Bailey's second argument hinged on Virginia Code section 2232, which mandates a county's planning commission must review a utility extension if it's not specifically allowed in a comprehensive plan before construction, establishment, and authorization of that utility. Highland planners performed the review a few weeks ago, after supervisors had already granted the conditional use permit. Bailey argued the chronology was out of order, and because supervisors did not have the planners' recommendation before it granted the permit, the permit should be null and void. Haley said the permit was just that - conditional - and one of its conditions was for the commission to complete its review. Much of the debate centered on the definition of "authorized" in the context of the law, and whether a conditional use permit did in fact grant an applicant "authorization." Sheridan denied this citizens' legal challenge as well, and dismissed the suit. He said though the permit was granted, any other party involved would understand it was conditional, and that those conditions must be met for the project to be constructed. Conditional use permit The third motion from Bailey focused on whether the decision by the county to grant HNWD's permit had been made in accord with the comprehensive plan. The county has an ordinance which states supervisors must find "as a fact" that a proposed conditional use is consistent with the comprehensive plan. Bailey focused on the land use and public utilities sections of the plan to argue the turbines were not in compliance. Haley honed in on economic and technology aspects to say they were. He also argued the comprehensive plan was not binding and not specific. It was meant to offer general guidelines, not rigid mandates, he said. Supervisors had taken the plan into account when they made their decision, especially in concluding the plan called for a balance of all the goals laid out in the document, he said. Supervisors had added a long list of facts as to how and why the utility complied with the comprehensive plan when it adopted a resolution to grant the conditonal use. Going down the county's list of facts - which included statements such as, turbines do not emit air pollution, and they will be located in a remote location - Sheridan asked Haley to define which of the statements were facts and which were conclusions. Haley admitted many of the statements were not actual fact, but conclusion, and therefore debatable. "I think they have thrown more smoke and clouds over this issue," Bailey said, arguing the comprehensive plan was an integral part of the zoning and planning process and the county had installed this particular ordinance to make sure it carried weight. From the language of the plan, it seemed the county made it clear it didn't want people coming in and putting up things wherever they wanted, Bailey said. He also pointed to supervisors' list of facts and said not one of them was truly a fact. Judge Sheridan denied the summary judgment request said the conditional use permit suit must go to trial. "I don't know if (the supervisors) did comply with their own ordinance, and I'm not prepared to say legally either way," he said. Haley began to argue a motion to dismiss all the citizens' cases on summary judgment, but Sheridan advised it would be an uphill battle and Haley did not proceed. Sheridan asked Bailey and Haley how long they expected the trial on the permit decision to last. Bailey said he plans to call a variety of experts to testify, and his case could take a day. HNWD attorney Brian Brake said he planned to call each of his own witnesses to counter Bailey's, plus a few lay witnesses. Haley said he intended to call county administrator Roberta Lambert to the stand to walk the court through the county's exhaustive research into the issue. Based on what he heard, Sheridan guessed the trial might spill over into a third day. The trial is set for June 27, 28, and possibly June 29. Bailey and Brake are trying to restrict the testimony of each other's noise expert. Bailey is attempting to exclude Brake's expert from testifying at all, and Brake is trying to limit what Bailey's can say. That issue will be settled by Sheridan through written briefs, and the court set a conference call for June 23 in case Sheridan had any questions. Another lawsuit heard later The court set noon, Aug. 9 to hear a separate suit brought by citizens disputing the planning commission's conclusion that HNWD is in substantial accord with the comprehensive plan - a decision it made during its 2232 review. If Sheridan rules in favor of the citizens and decides to hear the case, the trial is set for the next day, Aug. 10, at 9:30 a.m.