2 new laws may affect wind project decisions

MONTEREY — As the September permit deadline for the proposed wind energy plant here approaches, Highland supervisors are considering scenarios that might unfold.

The board requested that county attorney Melissa Dowd research new legislation, passed by the General Assembly last session, and how it could affect its decisions early this fall.

In a closed meeting Tuesday, April 7, supervisors learned about two new laws that may have a bearing on Highland New Wind Development LLC's conditional use permit for its proposed 39-megawatt utility.

That permit, approved with a controversial 2-1 vote in July 2005, gave HNWD two years to get the plant under construction. Due to a slew of lawsuits that did not end until the county prevailed at the state Supreme Court level on Sept. 13, 2007, the two-year timeframe did not begin until that point.

HNWD attorney John Flora told supervisors this month the company expects to submit a final site plan on May 5 — the board's next monthly meeting.

Dowd explained to the board that whatever happens between now and the time the permit expires this September, supervisors should be prepared for all the eventualities.

The new laws extend special use permits, in an effort to essentially help construction projects like subdivisions and commercial developments keep moving if they had been stalled by the economic downturn.

Now signed by the governor, the new laws go into effect July 1 — before HNWD's conditional use permit expires.

Dowd called for a closed meeting after the board's meeting this month to explain how they might affect HNWD's county permit.

What could happen?

If HNWD gets its ducks in a row before its permit expires, the new state laws will have no bearing on the process.

If not, the company could ask supervisors to extend its permit. The board already has the authority to grant an extension, regardless of the new laws.

But if supervisors decline to grant an extension, Virginia's new laws might come into play. In that case, HNWD might argue the new legislation supercedes the local board's decision, and that supervisors must grant an extension in compliance with state law.

If that happens, supervisors will either agree, and grant the extension, or disagree, and hold their ground.

No matter what unfolds, Dowd believes a lawsuit is likely to be filed — either by citizens opposed to the project or by the developer, depending on what the board does.

Supervisor David Blanchard agreed, saying the county is likely to end up in court no matter what happens.

There are already lawsuits threatened by citizens who believe the project will be a deadly threat to endangered species. Blanchard anticipates that before a building permit is considered, these issues will come to a head. And now, he says, it's possible HNWD would consider suing the county if a request for a permit extension was requested but not granted.

Both Blanchard and Dowd stress HNWD has not threatened a lawsuit against the county, or implied legal action would be considered.

"The question is whether the commonwealth can apply this (new) law to counties," Blanchard explained. "It's really taking the power of local government away. If we, as a board, decided to extend or deny (the conditional use permit), would we have no choice under the law now?"

Dowd declined to give her opinion publicly, saying that doing so would give away the county's potential legal strategies.

She did say, however, the new laws were poorly written. "I think it's going to cause a lot of problems statewide," she said. "The General Assembly used such broad language … I was shocked and appalled. I expect lawsuits will be filed (on special permit decisions) all over Virginia. I did tell our supervisors we should be very firmly opposed to the adoption of these bills."

Dowd explained the laws take local land use decisions, which have firmly and historically been the jurisdiction and responsibility of local governments, out of their hands. She said the Virginia Association of Counties is opposed to the laws as well.

Highland supervisors, she said, did not seem concerned when she explained the potential impacts. "All indications are that Highland New Wind will submit a site plan by next month, and then it might be a non-issue," she said.

Her meeting with the board in closed session was a discussion of the probabilities, she said. "It was my weighing of the issues and the likelihood of litigation from either side — my interpretation of that and how it applies to our situation with Highland New Wind."

The bill on the Senate side (SB 1533) adds a section to the code that says any permit that was valid and outstanding as of Jan. 1 this year is extended to July 1, 2011, regardless of local ordinances.

The bill on the House side (HB 2077), written to address the housing crisis, says permits, site plans, and other land use approvals related to "new residential or commercial development" shall be extended to July 1, 2014.

Both laws have been signed by the governor, and go into effect July 1.