Wind case witnesses take stand 3-day trial under way
By Anne Adams • Staff Writer
MONTEREY - Gray suits gathered Tuesday morning at Highland County Courthouse to launch a three-day trial. About 30 residents slipped in and out of the courtroom all day to see them in action as rain fell long and hard enough to flood area roads.
A year after county supervisors voted 2-1 to grant a conditional use permit to Highland New Wind Development, that move was taken to court by residents and landowners challenging the decision. The trial is expected to take about three days.
At one table were attorneys Brian Brake, defending the company; and Greg Haley and Melissa Dowd, defending the county. At the other were David Bailey and Chris Singleton, representing citizens filing suits.
Brake, Haley and Bailey were doing all the questioning, as witnesses for the plaintiffs were called one by one to testify and undergo cross examination.
Throughout the day, silver-haired Judge Paul Sheridan, a substitute on the bench from Arlington, listened intently and ruled on legal maneuvers and objections.
Each court officer and witness remained composed and respectful of the court environment as most took the stand for about an hour. By the end of Tuesday, six of Bailey's witnesses had testified, with three left to go on Wednesday. Among them were experts on birds and northern flying squirrels, plus residents from the Goodall family and Tom Brody, owner of Bear Mountain Farm and Retreat. Their testimony was given in support of Bailey's arguments that the county did not follow its own ordinances or comprehensive plan in making the permit decision.
Opening remarks
Bailey launched the proceeding with his opening summary. "This case is about evidence … not opinion," he said.
In addition to the traditional standards of review in land use decisions, he said the court must find whether the county complied with its own ordinances. "We will show the board of supervisors embarked on a completely new issue … and that their actions were inconsistent with the comprehensive plan."
Bailey told the court he intended to prove the county acted in an arbitrary and capricious manner, noting the comprehensive plan has self-implementing sections. "It is binding by its own terms," he said. He argued the county's ordinances regarding conditional use permits had specific requirements the county made mandatory, and the foremost mandate was the board had to make certain findings "as a fact."
In the project area, an agricultural zone, no conditional use permit can be granted unless the environment is protected, Bailey said. "This is a natural area with abundant species found nowhere else in Virginia."
He explained he would bring experts on wildlife to show this, but the overall environmental impacts were the subject of the State Corporation Commission's review and he did not intend to convert the case to a similar review in the courts.
HNWD applied to the SCC for a state certificate to build and operate its facility after it had secured the local conditional use permit. That review process is ongoing, with a decision expected this fall.
Bailey said he would show county supervisors did not adequately address how to mitigate nuisance noise from the 400-foot commercial turbines.
But he emphasized, "This is not an attempt to debate the merits of wind energy … this is a land use decision, and the complainants will point to an absence of facts … The ordinances and comprehensive plan were not complied with, or were completely ignored … and (the board) failed to mitigate damage to existing landowners."
Brake, on HNWD's behalf, lifted an aerial photo of the project sites, Tamarack Ridge and Red Oak Knob, onto a stand for the judge. He introduced HNWD owners H.T. "Mac" McBride, his wife Lola, and their son, Tal. The land had been in their families in some form for a number of years, he said. When the family decided to pursue a wind utility, the property was determined a good spot for three main reasons, Brake said - it was near a primary road (U.S. 250); it had some of the best wind in Virginia; and there was already a high-voltage transmission line running through the property.
"This decision was not made lightly by the board of supervisors," he added, saying the board had extensive public debate and massive research on the issue.
He pointed to 28 notebooks of information compiled by county administrator Roberta Lambert for the board's review, and said the permit was issued for an electric generation facility and substation, which is expressly permitted in the county ordinance as a conditional use. The legal standard for the court's decision, he said, was the decision to issue the permit was presumed correct - that the board did it right and it was a legislative action. The county only had to show "some" evidence of reasonable decision-making, Brake said. "The role of any of us is not to judge how wise the decision was."
He explained the permit came with a number of conditions, showing the board took steps to mitigate impacts. Also, he argued, one of the county's conditions was that no building permit could be issued until all environmental reviews had been met, and deferred to the SCC and other state agencies on those issues, knowing they'd be reviewing them.
Haley, defending the county, used his opening statement to explain the "fairly debatable standard" the court must use. If reasonable people could disagree on the issues, the court must find in favor of the county, he said.
Furthermore, the court is not allowed to substitute its judgement for that of a governing body; those legislative actions are given substantial discretion, and boards do not weigh evidence like a court would do. "They are not limited by rules of evidence," he said.
Haley said he predicted many citizens would testify about their fears and concerns, and most would be about visual impact. Supervisors did not definitively resolve potential impacts, and didn't need to, he said, because the county knew the permit would go through the SCC for these reviews. He pointed to the board's concerns about declining population and economic stagnation. "They made the finding this use was compatible with surrounding uses." And, Haley said, the board considered its ordinances and placed conditions intended to preserve Highland's rural character. The county must be flexible, and there must be a balance between environmental preservation and economic stability, he said. "They must be consistent with all of the comprehensive plan, and the conditional use permit was crafted to achieve those results."
Attorneys then spent nearly an hour reviewing the list of exhibits to come to an agreement on what evidence could be admitted. Sheridan admitted those they agreed on, and withheld judgement on the rest until they came up in testimony. By 10:45 a.m., the plaintiffs were ready to call the first witness.
Northern flying squirrels
Dr. John Pagels of Chesterfield was the plaintiffs' first witness, called as an expert on the endangered northern flying squirrel and its habitat.
Pagels explained the extensive research he'd done in the area in the last 25 years, and why he considered Highland, and the wind project site, special in Virginia. "Consider these ridgelines like islands in the ocean," he said. "Animals there now are considered relics of the last ice age … When glaciers receded … some species moved upward, and we find them now isolated here."
The Mt. Rogers recreational area was the only place in Virginia similar to this one, he said. There are 14 species restricted to the mountains of Virginia, Pagels said, and in this area the most important ones were a rock vole, a water shrew, and the northern flying squirrel. The vole and shrew, he noted, were not found at Mt. Rogers, only in Bath and Highland counties.
Pagels testified the squirrels were federally endangered because their population numbers were critically low and they could become extinct. He has trapped them in the Laurel Fork area, including on the McBrides' property, in suitable habitats that included red spruce trees. But from 1985-96, Pagels had only trapped 14 individual squirrels, he said, emphasizing the difficulty in finding them.
Brake cross examined Pagels in an attempt to show the utility site was not squirrel habitat, and Pagels trapped areas close to U.S. 250. Pagels said he would have likely found others if he'd been in other areas of the McBride property.
Brake also referred to a study showing the squirrels were being considered delisted from endangered to threatened; Pagels pointed out those studies were done in West Virginia, not Virginia, and said they had more habitat there. "In Virginia, this is an extremely special place," he said.
Recommendations from a planner
Bailey called Darryl Crawford to the stand next. Crawford is a senior planner with the Central Shenandoah Planning District Commission, and undertook research on wind energy on the county's behalf. Bailey had Crawford read excerpts from recommendations he'd submitted to Highland County; they included several points, among them:
• The CSPDC felt it was prudent for the county to work with the community on an amendment to the comprehensive plan addressing wind energy;
• The CSPDC felt it necessary for the community's stand on wind energy to be clarified in the land use document as the general policy document;
• If there were places the county would accept wind energy those areas should be identified with criteria for overlay zones;
• State and federal requirements should be completed at the time HNWD made application for its local permit;
• HNWD should provide a visual impact assessment to the county; and
• HNWD should conduct a balloon test.
When asked whether the county had required these things or completed these tasks, Crawford said no, or not to his knowledge.
Haley pressed Crawford about the comprehensive plan review process he'd been involved with for the last 18 months or so, and Crawford said the review committee had decided to address wind issues lastly, as part of a discussion on land use issues.
He also pointed to a letter Crawford had sent to the SCC asking whether the agency would review concerns before a decision on the permit was rendered; the SCC had said it would be wasting its time.
Crawford was excused shortly after noon.
Adjoining resident
After lunch, Allegheny Mountain resident Pen Goodall, whose property shares a boundary with the McBrides, was called to testify.
Goodall explained he owned 98 acres there for the last 23-24 years, on which he farms and logs and his wife has an art studio.
Bailey had him examine a map by Blackwell engineering firm. Goodall said the map contained errors. "I see their property line is not at all right," he said. "They've got (the McBride property) more on me than where it should be." Bailey asked Goodall to draw the line where he thought it should go, and he did so in front of the judge as the attorneys gathered around the bench to watch.
Asked about what he hears on his property, Goodall said lately he's been hearing equipment and chain saws on the McBride property where logging is going on all day long. "It's very noticeable," he said.
Goodall said his front porch looks directly at Tamarack Ridge, where one cluster of turbines is proposed.
Brake asked Goodall about his logging practices, and Goodall explained he cuts about 30 acres of timber on his brother's adjacent property each year, but not all in one place. "I never gouge the land. I do not clear timber," he said. When asked, Goodall said harming endangered species "is always a concern. We try not to cut places with habitat," he said.
Asked whether he felt his logging had an adverse impact on the McBrides, Goodall said no. "And yet you're concerned these wind turbines may impact you?" Brake asked.
"Yes," Goodall replied.
Brake also asked him about the sheep he raised; Goodall said he sells 60-70 lambs a year. "How close are the sheep to your house?" Brake asked, adding he wanted to know whether they make noise.
Goodall said the sheep were 100-200 feet from the house, and yes, he heard them every so often. "But sheep don't baa all night long," he added.
Expert by video
Around 2 p.m., Bailey showed a videotaped deposition of Dr. John L. Rowlett of Charlottesville, who Bailey brought on as an expert witness to testify about birds in Highland County, and eco-tourism.
Rowlett, an English literature professor at the University of Virginia, had spent 30 years visiting Highland, and said he knew the bird life here very well. He takes tour groups to Highland professionally several times a year. "Highland County is my favorite place to go in the state," he said.
Part of what makes it so special, he said, is its southern, "true" boreal forest with a mix of red spruce and other plants typical of the boreal zone. That makes it an important breeding area for high-elevation grassland birds. Coupled with its low-density, rural character, he said, Highland is a "magnet for people who want to experience wilderness in Virginia." Rowlett said several species of thrushes, warblers, woodpeckers, bobwhites, hawks and other birds of prey do better in Highland County than any other place in the state.
Of these the species of most concern is the golden winged warbler, he said. "It's precariously holding on," declining since the mid-'60s, Rowlett noted. One of the reasons is that it cross breeds with a blue winged warbler, and "conservationists recognize it could be bred out of existence."
But the blue winged doesn't do well at higher elevations, and in Highland County, the golden winged warbler is, therefore, "hanging on famously because blue wings don't make it that high. It's the most important species found in Highland County," he said. "It's watch-listed."
Rowlett said in his opinion, birds will be killed by an industrial wind utility on Allegheny Mountain, partly because it's in a flyway - a migratory path for birds. Asked whether he felt birds would be impacted, Rowlett said, "Without any doubt they certainly would be."
He also felt birds such as ruffed grouse, bald and golden eagles, meadowlarks, American kestrels (a small falcon) and hawks could be at risk. He felt the study conducted by HNWD's expert was too short, as it did not include the month of August, or a spring migratory study.
Rowlett's video testimony was interrupted while the attorneys and the judge hashed out whether certain letters from Virginia's Department of Game and Inland Fisheries could be brought in as evidence to support Rowlett's claim the studies were inadequate.
Bailey claimed since he could not, by law, force the state officials to testify, he had to rely on their documents. County and HNWD attorneys said that would be like using expert witnesses they couldn't cross-examine, and the letters weren't relevant.
Ultimately, the judge said they were relevant, and noted it was the board's responsibility to protect the environment, not just hope someone else (at the state level) would do their job. He ruled, however, that because of the level of information in the letters, the state officials could be considered experts, and the exhibits could not be used.
Rowlett then testified Highland's eco-tourism industry would be impacted. "On my own business, (the wind utility) won't have a significant impact, but I will no longer bring tours to Highland County."
On cross, Brake asked Rowlett a series of questions to show he had no formal education in ecology, biology or ornithology, and had not been to the actual site of the facility on the McBride property.
Rowlett said nevertheless he believed wind power should not be developed at sensitive ecological sites. "We need more study, since we know so little."
Family land
McChesney Goodall was next on the stand, testifying about his family land adjacent to his brother, Pen, and the McBride property. Goodall is a consulting forester in Albemarle County, and helps manage the 1,683 acres of family property atop Allegheny Mountain. He said the first tract had been purchased in 1959, and the family practiced selective logging and used the property for retreat and recreation purposes. There are conservation easements on some sections. Goodall explained it had been his late father's wish to preserve the property forever as a single tract due to its beauty, ecological richness and red spruce.
The Goodalls hope to open the land to more scientific research and education, especially for Highland County residents, and put the rest of the property under easement as well "to reinforce our vision and land ethic, to give back to this land," he said. "Obviously this huge wind farm is in direct conflict with our plans."
On cross examination, Goodall explained the family does limited timber cutting annually with good management practices.
The property shares about 16,000 linear feet of boundary with the McBride place, and its ridgelines are between 4,100 and 4,200 feet.
"The viewshed is very important to us. It's incredible, and it's all we've known since we were kids. It's what makes the county unique and our property so special," Goodall said. "It's very dear to us."
Like his brother, Goodall said sound there travels easily, and far.
Bear Mountain business
Bailey called Tom Brody to the stand around 5:30 p.m. Brody, his wife Patti Reum, and their home and eco-tourism business are situated in direct view of the proposed utility site.
Brody explained he had been a resident since 1975 and owned the 52 acres on Allegheny Mountain since 1983. At 4,400 feet, the Bear Mountain Farm and Wilderness Retreat offers services to individuals and groups who "appreciate our unique scenery," in addition to educational seminars focused on the environment. The property, south of U.S. 250 on Route 601, serves as headwaters for the Potomac, James, and Greenbrier rivers.
Before the retreat, Brody operated Bear Mountain Outdoor School offering building and rural living skills from 1987-97, and then changed the focus to a retreat center. Three years ago, an eco-tourism component was added for outdoor enthusiasts and naturalists, he said. "Everything I own I have in this business … since 2003, we have seen an increase (in business) almost triple … We can see an economic boom for us, and for the county."
Brody said the HNWD project would be the business and home's front porch view directly to the north.
Bailey and Brake both asked him what he could hear from the lodge, and Brody said he could occasionally hear trucks on U.S. 250, and sometimes dogs barking.
Brake asked how many nights a year the retreat was occupied, and Brody said 60-75 percent of the time; it accommodates up to 22 beds, plus camp sites.
When Brody was excused from the stand shortly after 6 p.m., Judge Sheridan offered the attorneys the opportunity to go later into the evening, but said he didn't want them to lose their "intellectual edge." Court was adjourned for the evening and picked up again at 9:30 a.m. Wednesday.
Wednesday morning testimony included two more experts for the plaintiffs - one on noise and one on bats.
Editor's note: This week's trial on Highland County's decision to grant a permit for an industrial wind facility here is set to continue through Thursday, straddling Recorder deadlines Wednesday. This issue will contain the latest information through Tuesday's proceedings; next week's issue will contain a report on the second half of the trial. See: www.TheRecorderOnline.com for an update prior to the next The Recorder beginning Friday, June 30.
| 
