Letter: Nemaha County has options when it comes to wind farms.
Wabaunsee County experienced a very similar wind farm issue in 2004 that our county is experiencing today. The overwhelming majority of their citizens did not want to see wind turbines come in for a variety of reasons, including aesthetics. Wabaunsee made the bold step of banning commercial wind turbines from the county. NextEra and the leased landowners then sued the county. The county won the lawsuit in district court and also won when further challenged in the Kansas Supreme Court.
Wabaunsee County was zoned, Nemaha County is not. That is the biggest difference but does not mean Nemaha County’s situation is insurmountable. What is stopping the commissioners from adding the Soldier Creek project to the current moratorium and then enacting minimum zoning for the entire county? NextEra does not yet have vested rights to the wind resource so the commissioners would be able to do this. Vested property rights are those rights that have been previously established within the county. In this case, since no wind farms exist in Nemaha County, the property rights to wind have not yet been established (vested). Until a property right for a given purpose has been established (in this case wind), the state gives broad discretion to counties to be able to enact legislation regarding that particular (non-vested) right in order to protect the general welfare of its citizens as they see fit.
Wabaunsee County amended its zoning regulations to prohibit commercial wind farms in the entire county. It was determined by the courts that this was not unreasonable or improper. Aesthetics was the key factor for the zoning amendment, which falls under general welfare, the good of the public. Also the court essentially stated that while the view of the majority of citizens alone is not a basis for proper regulation, it should be considered in the ultimate decision of whether to implement the zoning regulations. General welfare is a very broad term and is meant to enable our public officials, not to restrict them.
It’s important to keep in mind that zoning does not have to be (and should not be) burdensome on the citizens and landowners in Nemaha County. It can be very limited so that the activities that have taken place in the past would never be impacted in the future. The horror stories you generally hear about come from counties and cities that have strict, broad zoning laws.
The Nemaha County commissioners have a big decision to make. If they feel the Soldier Creek project is not in the best interest of the county as a whole, including the future of the county, they have the option to stop it. No decision is going to satisfy everyone, but it’s their responsibility to do the right thing and they have the power to do just that.
Letter paid for by Bob Carson