Wind trial starts Tuesday

Wind trial starts Tuesday

By Anne Adams • Staff Writer

MONTEREY - Attorneys gearing up for next week's trial centered on Highland New Wind Development's proposed industrial wind project were too busy to talk this week.

Citizens opposed to the project have filed five separate legal challenges against Highland County and the Highland planning commission, two of which were dismissed by substitute circuit court judge Paul Sheridan June 6.

Next week, in a court battle that could last three days, Sheridan will hear arguments related specifically to county supervisors' decision to grant HNWD a conditional use permit to build and operate its 39-megawatt facility here on Allegheny Mountain.

Attorney David Bailey, representing residents and landowners, will present evidence and argument to show the county did not follow its own land use ordinances or the comprehensive plan in making its decision, which he calls arbitrary and capricious.

Attorneys Melissa Dowd and Greg Haley will defend the county's actions, and provide its own experts to refute Bailey's experts on the witness stand. In addition, Haley intends to spend much of his time questioning county administrator Roberta Lambert about the kind of research the county conducted before granting the permit.

HNWD's attorney Brian Brake plans to enlist expert environmental witnesses to defend statements made by experts brought by Bailey. HNWD is named as a party to the citizens' suits due to the company's direct involvement, but is not accused of wrongdoing.

Witnesses for the plaintiffs will include the landowners themselves, county officials, all three supervisors, Darryl Crawford and Bill Strider of the Central Shenandoah Planning District Commission, plus those testifying about a recent ongoing eagle survey and experts for everything from Northern flying squirrels to noise levels.

Witnesses for Highland will include county officials, HNWD owners Mac and Tal McBride, planning commission members (former and current), Industrial Development Authority members (former and current), plus environmental experts.

Bailey had filed a summary judgement request on the permit, heard by Sheridan two weeks ago, asking the court to rule on the issue in favor of his clients. The county has an ordinance that states supervisors must find "as a fact" that a proposed conditional use is consistent with the comprehensive plan, and he focused on land use and public utility sections of the plan to argue the 400-foot wind energy turbines were not in compliance.

Haley countered that economic and technology issues in the comprehensive plan supported the turbines' use, and that supervisors had indeed referred to those aspects in making their decision to grant the permit.

Bailey told The Recorder this week the case should not have come this far, as he felt the judge should have ruled in his clients' favor on the two other summary judgements brought before the court June 6. "But there wasn't a lot of case law for the judge to make his decision on," Bailey said.

Those two challenges - one against the county for its decision to change Highland's ordinance on height limits, and the other on the supervisors' decision to have county planners conduct a 2232 review after the permit was already issued - will be appealed to the Virginia Supreme Court, Bailey said.

An order on the appeal won't be prepared until after the trial, he projected, but after the judge signs the order, it could take 10-12 months before the Supreme Court makes a decision on whether to hear the case. If it agrees to take up the matter, it could be an additional six months before the appeals are heard, Bailey said.

Another lawsuit filed by county citizens against the planning commission for its finding in the 2232 review - that HNWD's project is in substantial accord with the comprehensive plan - is slated to go to court sometime in August.

Next week's trial begins at 9:30 a.m. Tuesday in the Highland County Courthouse, and is expected to be continued the same times Wednesday, and Thursday if necessary.