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Editorial: Can the county board undo its mistakes?

November 4, 2009

By Stuart R. Wahlin

Staff Writer

Who could possibly be against wind power in Winnebago County? When people choose not to play by the rules, you’d be surprised.

Although this paper’s editor and publisher, Frank Schier, must often take sides on issues, particularly those related to the environment, this reporter must  avoid such crusades of advocacy journalism, for the sake of day-to-day objectivity in news stories. In the case of the proposed Navitas wind farm in southwestern Winnebago County, however, common sense has taken a back seat to politics, and an editorial of my own has become necessary.

This editorial has nothing to do with wind farms as they relate to birds and bats, the viewscape, shadow flicker and strobe, electromagnetic radiation, ice and blade throw, or any of the other valid environmental and safety concerns. Of course, the question of what will happen to adjacent property values is also of concern. Instead, this piece will focus on the flawed process by which your elected county officials crafted an ordinance destined for litigation. And if the county doesn’t make it right, those union jobs we’ve heard so much about aren’t going to happen anytime soon.

Having attended meetings throughout the process, it is evident there is not a single Winnebago County Board member who didn’t want to support a wind farm ordinance. But some found themselves in awkward positions Oct. 22 when an effort was made to send the proposed ordinance back to the Zoning Board of Appeals to “bulletproof” the measure from potential litigation.

When it was requested that the names of those who supported sending the ordinance back to the ZBA be read out loud by the clerk, it was as if to say, “Pay attention, unions—these are the board members who voted against jobs for you.” Frankly, the opposite is true.

Instead of receiving praise for their foresight, four brave souls were vilified and shunned by their fellow board members. One even called their prudence a stall tactic.

But with at least one lawsuit poised to pounce on the ordinance in a legal challenge, history may look more kindly upon the four board members who had the courage to suggest the measure deserved further review. They are Paul Gorski (D-5), Bob Kinnison (R-10), Dorothy Redd (D-6) and Steve Schultz (R-2), and they should be commended for tuning out pressure from unions and recognizing the county is at risk.

Granted, having the ZBA revisit the matter would mean a brief setback in approving the ordinance. But with winter upon us, it seems the delay would have been negligible in terms of construction seasons, especially when compared to a years-long lawsuit that would halt construction completely.

It appears the board’s Democratic and Republican caucuses were so busy falling over themselves to promise unions their support of the ordinance that they ignored the obvious flaws and alleged process violations.

It’s no secret that labor unions are major campaign contributors. One of the unions to lobby in favor of the wind farm ordinance’s passage, the International Brotherhood of Electrical Workers Local 364, for instance, has contributed more than $270,000 to local and state campaigns, according to the State Board of Elections. With that kind of clout, the ordinance’s overwhelming approval was no surprise.

These guys want jobs, and who can blame them? However, their desire for fast-track approval may result in a circuitous journey that could delay the project indefinitely.

It seems the board may have made some mistakes during the process, leaving the county more vulnerable to potential lawsuits as a result. If a lawsuit should arise, it is likely that anger from the unions would be directed at the plaintiffs—but it is your Winnebago County Board that should be blamed if the jobs aren’t there in the spring as promised.

Here’s what most everyone seems to agree upon: We need jobs, and a wind farm project could put some union laborers to work. We want to be more green and, although wind farms aren’t the answer, they’re a step in the right direction. With these common grounds, it’s difficult to fathom how we became so divided on the issue, but it happened.

Pulling dollars out of the air

Winnebago County has been kicking around the idea of a wind farm ordinance for years, but none was in place yet. Luckily and conveniently for county officials, Minneapolis-based Navitas Energy—which, by the way, does not happen to be in the business of protecting Winnebago County taxpayers—rolled into town this summer with an ordinance already drafted.

Navitas schooled county officials regarding how they think things should be done. Not surprisingly, the Navitas method would be extremely beneficial for the company, but little, if any, benefit could be identified for taxpayers—aside from some loudly-touted construction jobs.

Still, officials wondered, “Who could possibly be against wind power in Winnebago County?” and the issues have been clouded ever since.

Of particular interest early in the process was the debate regarding whether wind farms should be a permitted or a special use in agricultural areas.

By requiring special-use permits for wind farm projects, each application would be evaluated individually at ZBA hearings for each proposed site. Nearby Ogle and Stephenson counties permit wind farms as a special use.

Ogle County Planning & Zoning Administrator Mike Reibel told The Rock River Times: “I believe that, due to the magnitude of wind farm projects, and their impact—real and/or perceived—the public expects an opportunity to be heard.”

He added: “Since each project is somewhat unique, a special use provides an opportunity to the county to impose specific conditions upon the project to ensure the protection of the health, safety and general welfare of the county.”

Stephenson County Zoning Director Terry Groves said although wind farms are governed by special use in his county, he personally prefers the permitted-use model Stephenson County first tried before changing as a result of litigation.

“My permitted use had higher standards, more restrictive standards, than the special use has now,” he noted. “But, the objectors—they didn’t like it, because they wanted public hearings. They wanted somebody like the county board to have oversight on it, instead of my office, or the standards that I had.”

Groves indicated, however, public meetings remained part of the permitted-use process to allow redress of grievances.

“I think there should be some sort of mechanism for the public to address concerns, rather than just having someone start to dig in the back yard and, all of a sudden, you’ve got a 60-unit wind farm,” Groves added.

Winnebago County, however, opted for the Navitas-recommended permitted use, which essentially gives a blanket permission for wind farms. Under this model, the county appears to have decided we’ve heard the last of any public input regarding future wind farm projects.

Andrew Evans, the Navitas project manager, explained the company’s ordinance addressed all the concerns that tend to come up at ZBA hearings. Therefore, Evans reasoned, a permitted use is sufficient to address the concerns of all residents in all cases.

“The same issues come up at almost every single special-use hearing,” Evans indicated. “Instead of hearing those again and again and again for each individual wind farm, we’ve essentially put them directly into the ordinance. So, what we have left is an ordinance that’s significantly more restrictive than any other ordinance you’re gonna see in Illinois.”

During the Zoning Committee phase of deliberation in September, Frank Gambino (R-14) assured colleagues a permitted-use ordinance could be air-tight as long as the proper care was taken to address public concerns.

“I think if we get those right, I don’t know that special use is needed,” Gambino said. “Permitted use would help support this industry in this county, as long as we get it right.”

But did they get it right? Schultz wasn’t buying it, and tried to change the proposed ordinance to a special-use.

“There may be unique factors relative to a particular siting of a particular project that, by allowing it under the special-use, you would provide for that to come out in the testimony, so whatever the special circumstances of that particular location were, it could be evaluated individually,” Schultz said.

Gorski wasn’t convinced the county needed to go as far as requiring a special-use permit, but agreed that residents should be able to have some say about future wind farm projects. For this reason, Gorski said, he supported Schultz’s motion for a special use, but the amendment failed.

Regardless, Gorski said he believes state law requires public hearings to review individual wind farm applications. Although such language never made it into Winnebago County’s ordinance, it is no less a state law, Gorski maintains.

According to Illinois statute, “There shall be at least one public hearing not more than 30 days prior to a siting decision by the county board,” but Winnebago County’s ordinance makes no such provision. Reportedly, the state’s attorney’s office is of the opinion a permitted use precludes the state law.

Absent public review of each site application, however, Gorski fears the county is an easy target for litigation, and he’s probably right.

‘You’re gonna need a bigger boat’

There’s more to consider. Wind power is in its infancy, and whatever turbines are planted in Winnebago County’s countryside will surely become obsolete long before their anticipated retirement.

Most county board members seem comfortable with the protections in place regarding costs of decommissioning, but Gorski and Schultz argued it’s unclear who might be on the hook for decommissioning costs if, for instance, Navitas sells the proposed wind farm, as the relatively young company has been known to do.

“The liability under the ordinance remains with the owner and the operator of the turbines,” explained David Kurlinkus, deputy of the state’s attorney’s civil division. “If the units are sold, or a different entity assumes operation, the liability for decommissioning would go to the new owner and operator.”

According to Navitas, farmers who opt to lease their land for the project would see about $6,000 per year. But what landowners may not see coming is a huge personal liability. What if the wind farm operator goes out of business?

“Ultimately, the responsibility for decommissioning would lie with the landowners since they would continue to own the land on which the turbines rest,” Kurlinkus responded. “I would presume that they would have language in their lease agreements with the owner-operators indemnifying them for any costs incurred in the decommissioning, but our office is not privy to, or involved in, the drafting or enforcement of those lease agreements.”

Those considering entering into an agreement to lease their land for wind turbines would be well advised to read the fine print.

According to Energy Ventures Analysis, of Arlington, Va., the cost of decommissioning just one turbine is approximately $83,900. If, for some reason, an operator doesn’t make good on the promise to bear that burden, the $6,000 per year for farmers suddenly ceases to seem like such a good deal.

And if the individual property owner can’t afford to decommission an abandoned, unprofitable wind turbine, that only leaves John and Susie Q. Public to pick up the tab.

How two wrongs are alleged to have made a right

Perhaps most troubling is the suggestion that board members considered new testimony, despite only being allowed to weigh evidence presented to the ZBA in August.

“Navitas, the petitioner, was asked to present information before the Democratic and Republican caucuses regarding other elements of this,” Gorski said, “which is also new testimony.

“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,” Gorski argued during the Oct. 22 board meeting.

Zoning Committee Chairman John F. Sweeney (R-14), however, argued Bill and Sally Hoff—rumored to be considering a lawsuit—were also given an opportunity to speak to the caucuses. Therefore, Sweeney said, both sides were able to address board members.

Although they’d been granted an audience, Schier argued the Hoffs were bound by a different set of rules than when Navitas was permitted to elaborate on its plans.

“Taxpayers, welcome to the doors of double standards swinging us right into another lawsuit,” said Schier. “In their wide-open-arms sessions with the caucuses, Navitas wrote and spoke about their text amendments, complete with deletions of langauge set in and according to the rules of the zoning code process. They presented more new evidence in the form of a migration map as a ‘look-how-big-the-migration routes-are’ scare tactic. In their sessions with the caucuses, the Hoffs were never presented with the map, nor has anyone else seen it. They felt they were rudely treated by the Republican caucus, and they were carefully limited to addressing only material presented as evidence before the ZBA. The lawsuit will be very basic—what is fair for the wild goose chase presentation should be fair for the whooping crane and property value cause. This unfairness will cost taxpayers, again, just like the Sheriff Meyers’ Bachman lawsuit. If they amend the ordinance (and they can), for special-use permits with hearings and full NRI studies, we can avoid a hard whack in the wallet on the way out of this mess.”

Under the rules and laws that govern the board, it was arguably improper for the caucuses to invite further input from the applicant. Perhaps realizing the ordinance was now on thin ice as a result, the caucuses also asked the Hoffs for input, but the damage had been done. The entire process was compromised, leaving the ordinance open to challenges from either side.

The state’s attorney’s office is also alleged to have presented new evidence to the board, saying more tax revenue could be garnered through permitting each site and requiring fees for roads. Then there’s the question of fees for decommissioning each site.

When union laborers are still unemployed next summer, after a judge orders a stay on wind farm construction until litigation is resolved, sending the proposed ordinance back to the ZBA will probably seem like a much better idea in hindsight.

Intervening in the county’s addiction to lawsuits

Oct. 29, the Winnebago County Board agreed to a $1.5 million settlement of a civil lawsuit related to the death of Daniel J. “DJ” Bachman.

The month prior, the board approved another $15.5 million in settlements related to the 2006 traffic accident, involving Sheriff’s Deputy Joseph Boomer, which killed DJ and brother Aaron, and left sister Kori with brain damage.

The Bachmans’ vehicle was struck by Boomer’s squad car as the siblings tried to cross West State Street at Weldon Road. Boomer was responding to a call at high speed, but was not using the squad car’s siren or emergency lights.

Daniel J. McGrail, an attorney for the Bachman family, stated the Sheriff’s Department has agreed to publicly take responsibility for Boomer’s actions, thereby vindicating Kori, who was driving the Bachman car, of any fault for the collision.

Although Boomer was acquitted of criminal charges, the county is paying a dear price for civil litigation. The county’s insurance only covers up to $5 million of the settlement, and alternative revenue bonds are being considered to pay the remaining balance.

With a price tag approaching $20 million for one mistake, voters may want to consider being more selective when choosing our county’s policymakers.

But for now, it seems the county board is trying to wash its hands of fault for a poorly-crafted wind farm ordinance destined for the courts. “Let the unions blame the NIMBYs,” their battle cry seems to be, “and anyone who asks questions is against jobs and alternative energy.”

It’s time Winnebago County voters consider how many more lawsuits taxpayers can afford when deciding whether to retain their county board members. Sadly, only four out of 28 had the courage to try to avert one more.

From the November 4-10, 2009 issue

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