The Kansas Supreme Court, in a unanimous decision authored by Justice Lawton R. Nuss, ruled that the Wabaunsee County Board of Commissioners properly followed Kansas statutory procedures in adopting an ordinance prohibiting the construction of wind farms.
However, the court also ordered parties to submit additional briefing and to appear before the court for oral arguments on several other issues. The issues include claims that the ordinance violates certain provisions of the U.S. Constitution. Owners of wind rights contend that Wabaunsee County's ordinance constitutes a ‘taking’ of their property rights without just compensation, asserting that it is ‘no different than banning all oil and gas wells in Wabaunsee County and preventing use of mineral interests.’
The Wabaunsee County Board contends that to prove an unconstitutional taking, these wind rights owners must show they were deprived of all economic beneficial use of the land as a whole, and not just their ‘discrete segment’ of wind rights.
In addition to the takings claim, the Supreme Court has ordered the parties to address all aspects of whether the ordinance violates the Commerce Clause of the Constitution. This requirement includes addressing possible discrimination against interstate commerce and possible burdens on interstate commerce, since the ordinance only allows generation of wind energy ‘to reduce on-site consumption of purchased utility power,’ (e.g., for personal use).
In its ruling against wind turbine construction, the court ruled that Wabaunsee County's ordinance met the Kansas statutory requirements for reasonableness. The reasonableness was based, in part, upon the board's consideration of aesthetics and the closely related areas of ecology, flora and fauna of the Flint Hills. However, the court said certain questions remain, particularly whether the ordinance passes muster under the U.S. Constitution.
The Supreme Court agreed that the board's findings ‘could reasonably have been found to justify its decision that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and, for that reason, should be prohibited.’
Attorneys have been directed to submit additional briefs on those issues no later than 5 p.m. on Dec. 11. A second round of oral arguments before the Supreme Court has been scheduled for Jan. 27, 2010.
SOURCE: Kansas Judicial Branch