WWind project case heard by Virginia Supreme Court

WWind project case heard by Virginia Supreme Court

By Anne Adams • Staff Writer

RICHMOND - Considering the weight of the decision on whether Highland County will be home to Virginia's first commercial wind energy utility, the day's proceedings were not dramatic in any sense.

The hushed tones in the stately marble Virginia Supreme Court building on 9th Street last Thursday revealed little to those unfamiliar with the appeal brought by Highland citizens against their county.

Seven Supreme Court justices - three women and four men - heard attorneys' arguments on both sides. Ultimately, they will decide whether Highland County supervisors acted legally in the process by which they gave the go-ahead to Highland New Wind Development LLC to construct and operate a 39-megawatt wind energy facility on Allegheny Mountain.

"Win or lose, it's a whole lot of money," said supervisor Jerry Rexrode Wednesday, adding he wasn't impressed with either attorney. Rexrode attended the court proceedings last week with supervisor Lee Blagg and county administrator Roberta Lambert.
"I think each side has spent something like $600,000," he said. "I think we (the county) did it right, though. Whatever happens."
The appeal was filed a year ago after Judge Paul Sheridan ruled in favor of the county at the circuit court level. Initially, three lawsuits were brought against Highland, and two had been combined by the judge.

Several county citizens and landowners, represented by attorney David Bailey, alleged supervisors acted illegally by:
• Changing the county's height ordinance such that anything built higher than allowed in Highland would require a conditional use permit from county supervisors instead of a variance from the board of zoning appeals, and
• Granting HNWD a conditional use permit before the company's proposal for the utility had received a legally required review by the county planning commission.
The appeals were heard by the Supreme Court in consecutive sets of arguments mid-day - the last two on the court's eight-case docket June 7. Each side was allowed 15 minutes to make its case.
Defending the county was Greg Haley, a Roanoke attorney hired by supervisors two years ago when the project became embroiled in legal challenges. Haley shared his allotted time with attorney Brian Brake, who represented HNWD. The developer had been named in the suit but not charged by the plaintiffs with illegal actions.

Each attorney had prepared to argue before the justices, but all were interrupted with questions from the court, a scenario Haley says is not unusual.

Before the proceedings, the court justices would have read extensive briefs from the attorneys, and bench briefs by court staff that served to distill the arguments into the essential legal points to be decided.

A sticking point?
Brake, as he had done in the circuit court case, argued Bailey's appeals should not be considered because he had named the wrong person to sue. He cited case law to bolster his position that the Highland County Board of Supervisors should have been named as the entity, not just "Highland County."

In Virginia, governing bodies are considered to have sovereign immunity from legal challenges except where state laws specifically allow them. Brake cited a case in which the courts had decided if someone is going to sue a local governing body, he has to sue that governing body. That decision did not say "sue the county." Therefore, he argued, those suing Highland should have
named the supervisors as party to the suit.

The justices asked Brake and Bailey several questions about this issue. The question for the Supreme Court will be whether the case decision cited by Brake indicated which party should be sued, or whether its decision saying the governing body should be sued was just the language used, and not meant to be taken that way. The justices will debate whether "Highland County Board of Supervisors" and "Highland County" essentially mean the same thing.

Bailey argued they are, and said the case cited by Brake did not successfully support the position they are different. "I have to follow what the code tells me," Bailey told the court. "I don't see any mandate that says I have to sue the board of supervisors."

How the case made its way up
Highland County had prevailed in two of five initial legal challenges last year in circuit court.

Sheridan, who was a substitute judge for the case, had ruled in favor of the county last June in two of three summary judgments brought by citizens suing the county:
• 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 its planning commission perform a review of the utility plans after the permit had already been granted, instead of before; and
• A request to find the conditional use permit void because supervisors had failed to follow county ordinances.
Despite the county's request for dismissing all lawsuits, Sheridan had ruled for a full trial on arguments limited to whether supervisors acted arbitrarily and capriciously in making the decision to grant HNWD a permit, and whether they followed their own ordinance and acted within the bounds of the county's comprehensive plan. Sheridan had ruled in the county's favor in each issue.

Height ordinance changes
At the circuit court level, Bailey had 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.
He made the same argument to Supreme Court judges last week, saying the ordinance change infringed on the rights of landowners, who should have some level of predictability about what is allowed on and around their property, and supervisors had opened the door, so this type of development could happen anywhere.
The justices asked him to address the arguments by the county on case law Haley cited.

Haley argued Highland's height ordinance is 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, and there is an analytical process to determine whether the board grants the conditional use, he said.

Bailey told the court supervisors changed the regulation because "they said, ‘We want them decided by conditional use permit, at our discretion'," which Bailey argued was not fair to citizens. "You still have to have certain protections," he said.

Planners' review
Bailey's second argument hinged on Virginia Code section 2232, which mandates a county's planning commission must review a utility extension proposal if it's not specifically allowed in a comprehensive plan before construction, establishment, and authorization of that utility.

Highland planners performed that review after supervisors had already granted the conditional use permit. Bailey argued in his appeal that 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 argued the permit was just that - conditional - and one of its conditions was for the commission to complete its review. The circuit court had denied this legal challenge as well, and dismissed the suit. Judge Sheridan had 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.

Supreme court justices asked Haley several questions about the chronology of the planners' review. One said it seemed to her to be out of proper order.

Bailey told the court, "The General Assembly set out a process to be followed, and they (supervisors) reversed that process."
Haley said the processes for reviewing the conditional use permit application and whether the project was in substantial accord with the comprehensive plan overlapped in many ways. Supervisors, he noted, evaluated a multitude of issues before the permit was approved, and when it was granted, they had made completing the 2232 review a condition of the permit.

"They can make that a condition after the fact," one justice asked. "I think that leaves them (citizens) without any remedy, don't you?" She said it seemed county residents were denied an opportunity to object to the 2232 determination. "They were deprived of it," she said, adding later she was "very disturbed" by the process.

Haley responded the two processes (the permit and the 2232 review) were separate, but still very similar. "The processes are independent … one doesn't control the other," he said, and supervisors and county staff had done an "amazing job" in their analysis of the project application.

Conditional use permit
The third original 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. This motion had been combined with the allegations of the planners' review at the supreme court level, and the challenge to the supervisors' decision on height variances.

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's challenge focused on the land use and public utilities sections of the plan to argue the 400-foot wind towers and turbines would not be in compliance.

Haley's arguments point to economic and technology aspects to say they would be. He also argues 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 had argued, and furthermore, 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 conditional use.

Sheridan had denied a summary judgment request from the county, saying 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 at the time.

The Supreme Court justices asked no questions about this aspect of the appeal.

Suit against the planners
The second appeal was brought after Sheridan had ruled in favor of the Highland County Planning Commission last August. Citizens had sued the planners' decision that found HNWD's project was in substantial accord with the comprehensive plan (the 2232 review).
The suit was originally filed April 28, 2006 by Tom Brody and Patti Reum, the Goodall family, and the Swecker family, as a civil action seeking a declaratory judgment against the commission for its conclusions. Sheridan ruled in favor of the planners at the circuit court level.

What next?
Virginia's Supreme Court justices issue case opinions on the Fridays of their sessions. Their ruling on these two cases will be issued Friday, Sept. 14.

If the court agrees the properly named party in the suit should have been the board of supervisors, not just Highland County, the case could be dismissed. Appeals have been derailed on such technicalities before. If the court rules the right party was sued, then decisions will be made on both appeals.

Citizens cannot bring any further action against the county on these appeals. Federal courts do not take on cases involving local jurisdictions.

Should the court rule in favor of the citizens, the justices could remand the conditional use permit process back to the county requiring it be done again in proper order. HNWD would have no case to bring against the county in this situation, nor would it be able to properly sue the county if a second permit were not issued.
Both Haley and Bailey declined this week to discuss the proceedings. Each has extensive experience arguing before the court.