County wins 3rd lawsuit By Anne Adams • STAFF Writer
MONTEREY - As expected, Highland County prevailed in court last week.
The lawsuit against county officials was brought by residents and landowners, triggered by supervisors' 2-1 decision to grant a permit to Highland New Wind Development for a 39-megawatt electric utility on Allegheny Mountain.
 | | Highland's county attorney Melissa Ann Dowd defended supervisors last week in closing arguments. "There is ample evidence the board of supervisors went to great lengths to be thoughtful about this decision," she told the judge. (Recorder photo by Anne Adams) |
|
Three days of testimony and legal argument did not persuade Judge Paul Sheridan the county board had illegally issued the conditional use permit (see related story for details).
Attorney David Bailey, representing the citizens, had called nearby landowners to the stand to explain where they lived in relation to the proposed project site, and the quality of life they enjoyed in Highland County's westernmost corner.
In addition, he called up experts on northern flying squirrels, birds, bats, and noise, each of whom was rebutted by similar experts called by attorney Brian Brake, representing the developer, and Greg Haley, defending the county.
Closing arguments went well into last Thursday evening, and the judge stated his decision immediately following closing arguments, wrapping up the trial around 7:30 p.m.
Sheridan said he wished the legal situation had been more simple, but that he understood the weight of the matter in the community and the passion residents felt about Highland. "Their soul is in the soil," he said, "and they all have deeply felt emotional ties. The lawyers here have taken those passions and properly reduced them to a superb legal analysis."
He cautioned his decision did not reflect how he may have voted on the permit if he'd been a supervisor, and noted the plaintiffs had brought enough evidence to survive the county's motion to strike the lawsuit.
"But the burden on the county to produce some reasonable evidence (in defense) has been met. This court cannot and should not decide the experts over one another. Some were better skilled than others … but this court did not find any expert could be rejected as a matter of law … The concept of ââ¬Ëfairly debatable' is all over this case, but the sense of wrong doesn't mean reasonable people couldn't disagree."
In denying all counts brought by the citizens, the judge said, "The board of supervisors made a choice that cannot be overturned in these proceedings."
He added, however, that it was his understanding his decision would likely be appealed and instructed all attorneys to make sure the record was in order for an appellate court.
HNWD owner H.T. "Mac" McBride had no comment about the trial immediately following the judge's decision.
"I'm tired," he said. "That's all I have to say."
At issue: Land use
Each side laid out its arguments at the close of the trial citing case law from the Virginia Supreme Court.
Brake had argued plaintiffs must find "clear proof" the county didn't do its job in reviewing the matter before voting to issue the permit.
Bailey did not believe that was the standard to be met, saying the high court had only mentioned that standard a few times, and it really fell on the "fairly debatable" standard.
"We've shown (residents') basic use of their land - farming, logging, natural recreation, residential - and the interest in every plaintiff around Mr. McBride in efforts taken to preserve the land and contribute to Highland County with personal commitments like an entire farm under conservation easement. I don't say Mr. McBride has to accept this same ethic … he has a right to develop this property - to the extent Virginia land uses are restricted by zoning," Bailey said.
Highland's comprehensive plan imposes mandates, guidelines or conditions, he said, and McBride is bound to those uses. Bailey noted planner Darryl Crawford's point that the land use plan was in place to "look for an expression of the community," and had urged the county to amend its plan to address wind energy before deciding whether to grant a local permit, something the county did not do.
In this case, Bailey said, Highland's comprehensive plan contains self-imposed limits, which is not typical. He read from several statements in the plan that discuss Highland's beauty and sense of community. "This (vision) pervades this comprehensive plan. It runs all through it." He pointed to language describing the county's need to centralize growth and that any future growth should strengthen, rather than compete with, what already exists. "Well, we know what already exists, and it's unique. A boreal relic of the ice age … rural character that's been carefully preserved and maintained," Bailey said. "Highland County has built upon that, recognized it and promoted it. And Virginia has built upon that … everyone wants to protect it."
Industrial wind turbines, he said, are in direct conflict with the rural character. "It has divided this county terribly, and it's a lop-sided division; there is lots of anger and resentment and I'm sure it'll be reflected in (the) next elections."
As far as the county's estimate the utility would generate about $200,000 annually in tax revenue, Bailey said county officials want citizens to believe tourism plays a small role compared to a "powerhouse revenue" like wind turbines. "But nothing could be further from the truth," he said. "I would call the court's attention to the comprehensive plan … (noting) that $6.4 million was generated in Highland County on tourism (in 1999). And the potential is for far more than that … Tourism is an economic engine for Highland County."
Bailey said a major part of Highland's tourism business is generated by its natural beauty, recreational opportunities, and agriculture, and it's increasing, not decreasing. "Highland County is becoming a farming and tourism county," he said. "We are faced with a situation where maybe $200,000 has to be pitted against the risk to the tourism and agricultural industries."
Highland's land use plan, he argued, went further than Virginia law requires with its self-implementing section on utilities, which he says may not be granted as a conditional use without first conducting a review with the plan. "Other policies are not implemented by the plan," he said. "For whatever reasons, the county decided for (all) utilities, their comprehensive plan had to be binding and consistent. (The board) did not do that. It didn't change the plan … there's no two ways about it."
Other Allegheny Mountain residents are doing things consistent with the plan, which says the rural character should remain and industry allowed only when it does not degrade the environment, Bailey said, adding the county did not do nearly enough to mitigate or prevent impacts to these residents.
He discussed the county's requirement to review issues and find them compatible with surrounding uses "as a fact." That language is used both in the land use plan, and in the zoning ordinance, he said, arguing supervisors' list of conditions attached to the permit were not "findings of fact." It was especially true regarding noise impacts, he said, which were not addressed at all by the board. For many of the conditions, Bailey said, supervisors simply did not do their own review.
"The board doesn't even know, and apparently doesn't care (about these noise impacts). They simply deferred to the applicant."
Environmental reviews, he said, cannot be deferred to the State Corporation Commission. "Why? Because first of all, the SCC process occurs anyway, even if the board does nothing." He said the county could have asked for the same studies the SCC is requesting of the developer, and made a judgement for themselves. By delegating that authority to the state, he argued, the county's decision was arbitrary and capricious.
Bailey asked the judge to rule the conditional use permit illegal and hand it back to supervisors until they change the comprehensive plan and adequately address environmental issues.
The board's defense
County attorney Melissa Dowd made closing arguments on the county's behalf. "The first thing you've heard here," she told the judge, "is that this is a special place. People feel passionately about this place."
However, she said, the court has to keep that in perspective. "We are a county attempting to thrive," she said, but the board has the same obligations to meet state mandates for education, among other things. "There are three gentlemen accountable for that - the board of supervisors. Even though Mr. Bailey points in the comprehensive plan to text he chooses … you have to balance that with what these three gentlemen are tasked with doing, and that's running the business of this county," she said.
Dowd said Bailey was asking the court to "split some pretty fine hairs" when it comes to findings "as a fact" and providing no conditions to mitigate noise. The board collected 28 notebooks of information, made site visits, held hearings … "Somehow that's not evidence? ... That's not what the law says," Dowd argued. "The board gets to judge the credibility of the information before them, not this court. These guys went through a lot. They did their research … There is ample evidence the board of supervisors went to great lengths to be thoughtful about this decision," she said. "They did not delegate their duties to the SCC. The are entitled to rely on their own common sense and own research, and weigh the evidence as they go."
Dowd said it was impractical for the court to hold the county to its land use plan and zoning language calling for "as a fact" findings. "It's too fine a hair to split, requiring these exact words," she said, maintaining there was no distinction between "findings" and "findings as a fact."
The only standard was based on what was fairly debatable, she said, adding the split vote on the permit decision (2-1) was enough evidence to show reasonable people could disagree on the issue. She pointed to conflicting reports on wind energy listing pros and cons, and to the experts consulted who could not agree. "And there's divisiveness in the community. Unfortunately, for some, the folks who get to decide are our elected officials," she said. "A two-year process took place to try to reach the best decision for the community … The issue here is, did the board of supervisors do their jobs in making the land use decision?"
Dowd argued those bringing the lawsuit simply disagreed with the conclusions supervisors reached.
Brake followed Dowd with his own closing arguments on behalf of HNWD, restating the opinions expressed by the company's experts, and noting the court only needed "some" evidence the county did its job, not a "preponderance" of evidence.
Sheridan found some of what HNWD's experts said lacking, and asked Brake about questions they did not answer. In addition, the judge asked Brake what he believed the difference was between a utility and a utility extension, as described in the land use plan. Brake argued the self-implementing language referred to things like extending a sewerage line.
Bailey briefly rebutted, noting the arguments were not what he wants, but what his clients want, and reiterating his arguments about findings "as a fact."
Ultimately, Sheridan disagreed with Bailey's arguments and denied each count brought against the county.
In August, another suit comes to trial regarding the Highland planning commission's review of the project as related to the county's comprehensive plan. Attorneys involved will have a conference call with Sheridan Aug. 9. If the judge agrees there's enought to move forward, proceedings will begin Aug. 10 at the Highland County courthouse.
| 
