The Linn County Commission discussed wind- and solar-power issues with Jim Kaup via video conference on Tuesday, May 30. (Screen capture/Linn County Kansas Live Stream)
MOUND CITY - The Linn County Commission is expected to send back a newly revised set of zoning regulations back to the county’s planning and zoning commission for further clarification on two controversial sections next week.
Both sections deal with whether the county will allow renewable energy installations – commercial wind turbines and solar farms – and what limitations will be placed on them.
During the county commission meeting on Tuesday, May 30, the commissioners discussed the those subjects via teleconference with Topeka attorney Jim Kaup. Kaup was hired to assist the planning commission in developing the new regulations last fall.
After the commission’s discussion with Kaup, County Counselor Gary Thompson suggested that he draft a document listing items on which the county commissioners wanted planning commission to clarify. He said that county commissioners could then send that document back with the new zoning regulations for the planning commission.
The county has had a moratorium in place on construction of commercial wind turbines for more than two years, and so far none have been installed in the county. The proposed zoning regulations would prohibit any commercial wind turbines to be installed in the county.
The county also put in place last year a moratorium on commercial solar installations that is due to expire soon. The proposed zoning regulations would allow for solar farms to be built, however, companies looking to install them have challenged the 4,000-acre total solar farm limit the regulations would put into effect.
Company officials have also challenged the 150-foot setback from the rights-of-way the regulations would impose.
There has been considerable discussion about whether a ban on wind turbines would hold up in court if a company filed a lawsuit against the county. Both Kaup and Thompson have said that an outright ban might be harder to defend in court than a regulation that strictly controls wind power installations.
On Tuesday, Thompson backed off from that, saying that if the planning commission includes a list of “findings” that support the ban he would be more comfortable with that. Findings could include reasons why turbine installation would not fit the character of the neighborhood and concerns about nighttime lighting.
“Anything that restricts property rights should be supported by detailed findings so that you cannot be found to be unreasonable in your decision,” Thompson said.
Several members of a group of county residents who have been lobbying heavily for a ban on wind turbines were at the commission meeting as they have been in recent weeks.
One of them, Robert Tyson of Parker, told commissioners that he had been talking with people in Topeka and he was certain the county would not get sued by enacting the ban.
“You’ll be responsible on doing away with the ban,” he warned them.
David Fisher, also a proponent of a ban, presented a letter he received to the county commission from Wichita attorney Patrick Hughes that suggested that an outright prohibition of wind generators was a safer path to follow than regulations that haven’t been tested in court.
“Concerns about the risk of a lawsuit do not justify a county adopting regulations rather than a ban,” Hughes’ letter stated. “Adopting regulations rather than a ban actually heightens the risk of litigation, in my opinion.”
Two of the county commissioners, Jim Johnson and Jason Hightower, indicated at that point that they were in favor of the ban.
However, Commission Chair Danny McCullough said he wanted to make sure they were doing the right thing. But he also asked if the planning commission to call a special meeting and indicated he would like to finalize the zoning regulations by the end of June.
Planning commission member Mike White asked county commissioners not to give that group a time limit to insure there was enough time to fully discuss the issues.
McCullough also said later in the meeting that while he had not decided yet on supporting or opposing the prohibition on wind generators, he was thinking about long-term growth.
He speculated that when the coal-fired La Cygne Generating Station was being built east of La Cygne, there were likely people who opposed it. But, he added, it has become a part of the county now.
Johnson asked if the planning commission had thoroughly discussed the wind- and solar-power issues.
One planning commission member questioned whether that group could hold a free discussion about the findings.
Planning commission member Charlene Sims said that during the workshops held by the group, discussion had been limited and had been characterized by bullying by an anti-turbine planning commission member who “blew up” at Kaup and commission members who didn’t see things his way.
Sims said that planning commission member used misinformation to steer that group toward the total ban. She said that, despite that commission member’s efforts to portray public support for a ban, at the public hearing in April when the audience was asked whether they were against wind turbines about half of those in attendance raised their hands and the other half did not.
She also pointed out that while the county’s recently adopted comprehensive plan cited an informal survey in which about 66% of the 585 respondents did not favor wind turbines in the county, the comprehensive plan does allow for wind turbine installation in approved areas of the county.
One of the goals listed in the county’s comprehensive plan is, “Update zoning regulations to include design review standards for industrial wind turbine and commercial solar array development in limited zoning districts.”
She said that a case involving Wabaunsee County, Kansas that is often cited by wind turbine opponents as proof that the county would win a lawsuit, was a case where landowners sued the county because it did not allow them to the right to have wind turbines on their property. She said that case was appealed and sent back to the district court for clarification on several issues. This has been costly to that county.
“What happens when a company with deep pockets like Evergy sues the county because they want to put up windmills close to their generating station?” Sims asked, adding that a lawsuit like that could place a burden on the county’s resources.
Sims also pointed out that attempts in the Kansas Legislature to ban wind turbines had failed more than once and she was concerned that by counties banning wind turbines, it could result in legislation similar to laws that have tied the hands of local governments to prohibit the proliferation of cell towers whether they are needed or not.
David Berglund, also a planning commission member, told commissioners that he supported landowners’ property rights. He said as long as someone’s activity doesn’t harm his neighbors, it should be allowed.
He said that while he didn’t care if he saw another windmill, landowners should be allowed to allow them to be built on their property as long as the rights of their neighbors were not impacted.
The representatives from two solar utility development companies also spoke to the commission about the 4,000-acre cap on solar utility developments. Both deemed that figure was unreasonable and only represented about 1% of the county’s land area.
(Editor's disclosure: Charlene Sims is both a longtime member of the Linn County Planning and Zoning Commission and a writer for the Linn County Journal. We have strived to make this report objective. We invite you to watch the livestream video of the proceedings at https://www.youtube.com/watch?v=OoYY4fgD9U8 . The proceedings of this article begin at about the 2 hour and 6 minutes mark.)