Lawsuit could be blow to wind farm
By Stuart R. Wahlin
In what has become a longer process than Minneapolis-based Navitas Energy bargained for, the Winnebago County Board averted an additional delay Oct. 22, and approved an ordinance that will open the door to commercial wind power generation in Winnebago County.
As a result, however, at least one lawsuit could bring a proposed wind farm to a halt.
Although a legal objection by Seward Township meant at least 21 votes were required for the ordinance’s approval, a strong showing by labor unions in attendance seemed to ensure its passage without further delays.
Most opponents say they’re not against wind farms, but argue the turbines shouldn’t be a permitted use, but rather a special use, which would require public input regarding individual projects.
Despite concerns, Winnebago County Board Chairman Scott Christiansen (R) described the ordinance as “cutting-edge.”
“Is it perfect? Of course not. Can it be amended as time goes on? Of course it can,” Christiansen asserted. “But the important thing is, this is an opportunity for us, number one, to get looking seriously at alternative energy, but more importantly, putting some people back to work, and that’s what’s desperately needed in this county.”
Christiansen’s comment was met by applause from 60-70 laborers in the gallery. Two environmentalists and about six Seward residents were also in attendance.
Two weeks prior to the vote, the ordinance first came to the floor for approval, but last-minute amendments resulted in a layover so board members had time to review the changes. The amendments were approved 27-1, with Steve Schultz (R-2) casting the only dissenting vote.
Ted Biondo (R-9) said he had mixed feelings about the proposed project, which would place 40 turbines in southwestern Winnebago County as part of a three-county, 100-turbine wind farm.
“Tonight, I would rather be voting to build a nuclear power plant than a wind farm,” Biondo began. “If these were the most efficient and cost-effective forms of energy, they would have been producing most of our energy long before now. Turbines are 30 percent efficient, meaning that current power plants will still have to operate in reserve when the turbines are not online, which is 70 percent of the time. To replace the power capacity of one Byron nuclear plant, which is 2,240 megawatts, would require 1,150 wind turbines using one-and-a-half megawatt capacity. That’s twice the capacity of the first 17 wind projects in Illinois put together.”
Biondo also questioned the benefit to residents.
“The taxpayers subsidize construction, operating costs, including land leases, tax credits, power placed on the grids,” he noted. “How much is that once all that stuff is subtracted? Yes, our taxing bodies will obtain more revenue from these turbines…but it’s our federal taxpayer dollars. Would the wind farms be in business without these subsidies? Will our electric rates go down? Show me the cost-benefit analysis.”
In the end, the creation of jobs tipped Biondo in favor of the proposal.
“Some say they’re temporary, but if more wind farms are built in the future, which they probably will be, jobs may be permanent, with manufacturing jobs for the blades, gears, etcetera, created locally,” he said. “One could debate on either side of this issue and do pretty well. However, it’s obvious that even clean, alternative energy doesn’t satisfy everyone, with talks of waves reverberating from the turbine, migratory patterns of birds and bats, that if taken to the extreme, would eliminate all wind technology in Illinois, and another job opportunity for research, construction and manufacturing.
“The arguments for wind turbines are more convincing, and with unemployment today reported at 15.2 percent in the county, and 17.2 percent in Rockford, that’s why I will be supporting new technology research and jobs, even if I do feel FDR looking over my shoulder,” Biondo added.
“Taking the migratory patterns of birds and bats to the extreme was never proposed, so that argument is empty,” said The Rock River Times Editor and Publisher Frank Schier, a proponent of environmental protection. “Once the countryside is industrialized by these wind turbines, we cannot turn back to the moderate proposals for studies, temporary shutdowns and compliance with the Greenways and Natural Resource Inventory in the approved 2030 Land Resource Management Plan. This ordinance makes that plan a joke. The county administration and board just thumbed their noses at everyone who participated in the focus groups and negotiations over three years. That’s over $300,000 worth of farce for taxpayer investment, with a big greenwash brush off, while saluting slavery to wind industry and labor special interests. The larger interests of the taxpayers’ quality of life be damned.”
Zoning Committee Chairman John F. Sweeney (R-14) noted the country presently has the ability to power 5 million homes with wind turbines, adding, “Many acts of human ingenuity happen in baby steps, so wind is not the answer, but it’s one of the answers, and it’s moving forward.”
“Because wind turbines produce, on average, only one-quarter of the time, it actually takes at least 2,200 turbines to equal one nuclear plant,” Schier added. “That’s miles of baby steps tottering all over the landscape and threatening the chain of life and property values. This technology may soon be outdated, and requires massively costly grid growth for distribution outside the area it ruins, and sometimes runs only at night when demand is very low. Yippee, more taxpayer subsidies and not-so-real-efficient energy, but big money and short-term labor trumps overburdened taxpayers and common sense.”
Once the amended proposed ordinance was on the floor for discussion, Paul Gorski (D-5) made a surprise motion to send the matter back to the Zoning Board of Appeals (ZBA) for further consideration.
Upon Schultz’s second of the motion, one anxious union member in the audience was heard to mutter, “Ah, Jesus.”
Despite union frustration, Gorski explained, “Just this week, we were sent information from the state’s attorney office that indicated that…somebody showed an interest in showing us a way how to possibly get more money out of this—more tax dollars, or more revenue, and possibly…lower the tax burden for residents.
“In addition to that, there’s other testimony that I believe we should consider regarding the financial stability of a business partner of the petitioner, and also the vendor that they usually sell their wind farms to,” Gorski added, referring to Babcock & Brown, Ltd., which began liquidating its assets in August.
“I believe there’s enough information to warrant going back to the ZBA to revisit these issues, especially considering our own state’s attorney office gave us new testimony after the fact,” he noted.
Legally, the board is not permitted to consider any new evidence presented after the ZBA hearing, which was held in August.
“Navitas, the petitioner, was asked to present information before the Democratic and Republican caucuses regarding other elements of this, which is also new testimony,” Gorski indicated. “However, other individuals and organizations were not allowed to present new testimony, either here, or at the Zoning Committee, so I think it’s only fair to send it back to the ZBA for the proper review of this information, and rebuttal of this information.”
Sweeney, however, argued Bill and Susan Hoff—rumored plaintiffs in an impending lawsuit—were also permitted to speak to both caucuses. The Hoffs would not comment regarding a possible lawsuit.
“Both sides came and spoke,” Sweeney asserted, indicating the process was not one-sided.
According to other reports, particularly in the Democratic caucus, the Hoffs, unlike Navitas which presented new text amendments, deletions and a migration map, were told they could not present anything that had not beenoffered in evidence before the ZBA because it was new evidence.
Kyle Logan (R-3) said of Gorski’s motion: “This is nothing more than a stalling tactic. We’ve seen it before in other zoning petitions.”
Logan’s Democratic counterpart in District 3, Doug Aurand, concurred.
“If we’re to go down this road, we could be sending everything back. We’ve all gotten mail. We’ve all gotten phone calls,” he argued. “It’s time we move forward. Let’s approve this. Let’s get the jobs going.”
Gorski retorted: “The difference, Mr. Aurand and Mr. Logan, is that these weren’t e-mails from residents and the like. …This was actually information supplied by our own staff, or the petitioner, after the fact, which was considered in private meetings outside the ZBA process, without the ability for somebody else to rebut, which is in clear violation of state statute and the ZBA process. All I’m asking is that we do the right thing.”
Granted the floor, Fred Wescott (R-9) tried to call the question to avoid further debate, but Christiansen allowed discussion to continue.
Responding to Logan’s suggestion the motion was a stall tactic, Schultz said, “When we characterize each other’s motives, we’re in dangerous territory.
“This is an issue of new testimony, and it’s clear that, from a variety of sources, we did receive new testimony,” Schultz argued. “That’s not debatable. We do need to have a high standard in regards to this, because our own rules suggest that that’s not supposed to happen.”
Although clearly having Schultz’s support, Gorski found little favor among his fellow Democrats.
George Anne Duckett (D-12) argued Gorski never objected at the times new testimony was allegedly given.
“I’m just sort of disappointed that we have to continue this argument when I think most people know that the majority of this board had felt like we had enough information,” she said. “I think the urgency that comes with this issue is just too important for us to continue to delay it.”
In a vote to send the issue back to the ZBA, only Bob Kinnison (R-10), Dorothy Redd (D-6) and Schultz supported Gorski’s push, and the motion failed.
With debate exhausted, the motion to approve the wind farm ordinance prevailed 27-1, with Schultz left standing alone in opposition.
“We didn’t approach this with the right kind of a process,” Schultz told The Rock River Times. “There were politically-driven decisions based on pressure, instead of people really understanding the dimension of what they were dealing with.
“I’m not opposed to wind farms,” he noted. “I’m opposed to this particular ordinance. I believe it should have been special use, instead of permitted use, to ensure the proper siting of the wind farms, and to allow public input in the process of the siting of the wind farms.”
In addition to echoing Gorski’s unease regarding consideration of new testimony, Schultz expressed concern that new language in the ordinance may allow applicants to disregard recommendations of a wildlife expert.
Additionally, Schultz is worried about liability for decommissioning the turbines.
“I’m concerned about how the new technology could make these particular wind turbines obsolete before the end of their useful life, 20-25 years—and related to that, the decommissioning,” Schultz said, noting Navitas often sells the wind farms it constructs. “Does the liability for decommissioning follow that new business entity that would then own the wind farm? …If not, obviously the landowner’s on the hook, or the county is on the hook.”
Elated by the victory, union members filed out of the board room, but work on the Navitas project may not begin during the next construction season, as expected.
By not sending the proposal back to the ZBA to make sure all its bases are covered, the county board may have delayed the process by years if a lawsuit results.
Lawsuits related to Navitas wind projects in Ogle and Stephenson counties have lasted for years.
In Stephenson County, a lawsuit filed in 2007 by 10 landowners was eventually settled in August, effectively delaying a $120 million wind farm between Freeport and Dakota until at least 2011.
Ogle County has also been in litigation since early 2007, because of local and federal lawsuits related to Navitas’ Baileyville wind farm project.
“Both of those cases have been dismissed at their trial level, and they are now at the appellate court level,” Ogle County State’s Attorney Ben Roe reported. “We haven’t been able to move forward with this [wind project]. It was stayed by the court until there’s finality to these cases.”
Even if appellate decisions uphold the previous rulings, an end to the litigation may not be in sight.
“If they affirm the local court’s decision, then there’s always the option that the plaintiff could ask for leave to file to the Supreme Court, which could again push back the finality to this,” Roe said. “It’s hard to anticipate how much longer these cases are gonna go on.”
Asked why he ultimately voted in favor of an ordinance he fears could result in litigation, Gorski responded, “I support the wind farms in principle, but object to the process we used to approve the text amendment, and propose to use to approve the wind farms.
“My major concern with the wind farm text amendment, which I have stated repeatedly in public meetings, is that I believe state law requires us to have a public hearing to review each wind farm application,” he explained. “I had hoped to put that hearing language in our ordinance so we all knew what the process was. The hearing language never made it into our ordinance. However, if state law requires a hearing for each application, we are still bound to hold that hearing, regardless of whether we mention it in our ordinance or not.”
Gorski indicated, “I will continue to work to have public hearings for all wind farm applications, because if we fail to hold hearings for each application, I believe the county is opening itself up to lawsuits.”
Meantime, Navitas officials expect to present a formal proposal by early December.
However, again, construction could potentially be delayed up to two years or more if a lawsuit is filed, as indicated by the lawsuits against wind projects in Ogle and Stephenson counties.
From the October 28-November 3, 2009 issue
Print This Article