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The state Supreme Court heard arguments Tuesday in a case that pits a group of property owners against NedPower Mount Storm LLC and its owner, Shell Windenergy Inc. The companies want to build a 10 1/2-mile string of 200 wind turbines along a ridge top in Grant County.
Residents claim the project would severely damage the value of their property. The companies argue the 330-foot-tall turbines will not only bring economic gain to the area, but the homeowners' concerns have already been dismissed by the state Public Service Commission.
The justices agreed to hear the case after Grant County Circuit Judge Phil Jordan ruled he did not have the jurisdiction to hear the homeowners' complaints since PSC had already approved the project. Jordan also ruled the case appeared to be an attempt to have him substitute his own judgment on the siting of the project for that of the PSC, and that an injunction was inappropriate because they could seek financial damages in a separate legal action.
Charleston attorney Richard Neely, representing the residents, argued before the four-judge panel Jordan was wrong to dismiss the suit. Justice Larry Starcher was absent.
"All I want is my day in court," said Neely, a former state Supreme Court justice. "I want to bring on my witnesses and prove these things are worthless."
But Justice Elliott "Spike" Maynard asked whether Neely's argument could open the door to circuit court judges overruling state decisions on a multitude of unpopular but necessary projects, like prisons.
Neely, though, said the state has the power of eminent domain, which the companies behind the wind turbines lack. He compared the turbine project to a brothel, calling it both a public and a private nuisance, since it would be so close to his clients' property.
"These things are the brothel on top of the hill next to my clients' houses," he said.
Charleston lawyer Samuel Brock, who represented the companies, argued that Jordan was right to dismiss the case, since the PSC had already approved the project.
Complaints about damaged property are hypothetical at this point, since construction hasn't started yet, he said.
"Every claim in this case is sort of Rube Goldberg-like," Brock said. "There is a series of things that have to happen to get to the plaintiffs' complaint."
When Justice Joseph Albright asked him whether he believed the homeowners' property values would suffer if the project is built, Brock said he didn't think the values would go down.
"You're saying that with a straight face?" asked Chief Justice Robin Davis.
If property values do suffer after the project, Brock said, the homeowners can sue in circuit court.
The Grant County project is expected to generate 300 megawatts of power and would be near a 166-turbine project proposed by US Wind Force LLC. Both projects would dwarf the state's lone existing wind farm, the 44-tower Mountaineer Wind Energy Center in neighboring Tucker County.
NedPower originally hoped to start construction last November, but officials have since said there is no date on when construction would begin.
NedPower first proposed the project in 2005, and was then purchased by Houston-based Shell Windenergy, a subsidiary of Royal Dutch Shell. Virginia-based Dominion Resources Inc. announced in December that it had acquired a 50 percent stake in the project.
The value of wind turbine facilities has been questioned not only by residents, but also by Rep. Alan Mollohan, D-W.Va., whose district includes Grant and Tucker counties. According to a representative from Mollohan's office, a study by the National Research Council on the viability of wind power in West Virginia expected to be released in December has been delayed until later this spring.
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