When does wind project permit expire?

MONTEREY — Is it August or October?

Attorneys representing Highland New Wind Development and Highland County disagree on the exact date HNWD's local permit for a wind utility expires.

The permit was issued in July 2005 with a two-year deadline for the project to get under construction, but it contained a clause that said any days the permit was being legally challenged would not count as part of the two years.

Brian Brake, an attorney for HNWD, calculated the date of expiration as Aug. 17, based on the day the Virginia Supreme Court issued its final decision in lawsuits filed against the county for the way the permit process was handled.

County attorney Melissa Dowd, however, has a different interpretation.

She told county officials Monday that she believes since attorneys representing Highland citizens had filed a petition with the court for a re-hearing, the days the court took to decide not to re-hear the case also counted. The final, drop-dead answer from the Supreme Court, she said, did not come until Nov. 9, 2007, following the court's decision in September that year.

Therefore, she said, her calculations lead her to believe the permit does not actually expire until Oct. 14 this fall.

HNWD asked supervisors for an extension in June, and the board had agreed to call a meeting to make a decision next week. But Tuesday, supervisors did not take up the matter, as it appears an extension might not be needed.

Furthermore, Dowd said she had done more research on a new state law that extends all special use permits until 2011, and told the board she believed that applied to HNWD's permit.

HNWD's permit says the project must be under construction before it expires. Dowd said "construction" could include site work done before building permits are issued. "Site preparation could reasonably fall under the term 'construction.' I could argue construction includes site construction, and I could argue it doesn't — either way. But I don't think you'll have to worry about it," she said.

Flora said he really did not want to be tested on whether the project was actually under construction before the permit expired, so he had asked Brake to be conservative in his estimate of the expiration date. "I don't think any of us want to deal with going all the way to the Supreme Court again," he said.

The company hopes to have site work construction under way this week.