As the Associated Press has reported, on Friday, October 30, 2009, the Kansas Supreme Court ruled that “Wabaunsee County commissioners have the right to prohibit the construction of commercial wind farms in their county.”For wind turbine advocates all was not lost in the ruling, as the court “questioned whether an ordinance banning commercial farms but allowing smaller wind generators for personal use violated some provisions of the US Constitution.” The ordinance in question was adopted in 2004.
The decision reached by the court was unanimous. The court acknowledged both the concerns from the commission about harm to aesthetics and ecology of the Flint Hills if the turbines were erected in the county. At the same time the court considered the opposition from the residents who attended “54 public hearings on commercial wind farms.”
Today's ruling on the issues is the first in Kansas and perhaps in the country where the construction of commercial wind farms as an alternative energy source is being pitted against landowners seeking undisturbed vistas of their wind-swept countryside," Supreme Court spokesman Ron Keefover said in a news release.
The sight chosen for the turbines, the Flint Hills, are home to “the last remaining unplowed tallgrass prairie in the country . . .” However, the sight has existing transmission lines, making it an attractive location for the turbines.
Those who supported the commercial wind farm development argued the county ban on commercial wind farms was a violation of their personal property rights. Opponents argue the turbines, which are roughly 300 feet high, will hurt the vistas of the prairie, hurt decreasing populations of prairie chickens, and cause noise pollution. Ultimately, the court agreed with the county’s reasoning for the ban—that the farms would adversely, “if not dramatically,” affect the county’s aesthetics, and should be banned for that reason.
However, as the Associate Press notes, despite upholding the ban the court is not “convinced the ordinance is constitutional.” One argument comes down to the Takings Clause of the US Constitution. Does the ordinance amount to a “taking” of the residents’ wind property rights, and, therefore, should the residents be entitled to “just compensation”? Additionally, questions exist as to whether the ordinance discriminates against interstate commerce since wind generation is only allowed ‘“to reduce onsite consumption of purchased utility power,’ for personal use only.”
According to the AP, oral arguments for those issues will be heard in late January.
To read the AP article click here.
Posted: 11/02/09
