Planners review wind, again - 60 days to decide if utility site is suitable

When the company received its conditional use permit last July, one of the conditions attached stipulated the 39-megawatt utility must have all required state and federal approvals pursuant to the section of Virginia Code that requires public utilities and other certain facilities to be reviewed to make sure they comply with local comprehensive plans.
 
County attorney Melissa Dowd told the planning commission last Thursday what it had to do by April 20, and encouraged the commission to hold a public hearing on the matter.
 
It is this review with the comprehensive plan that is one of several procedural issues that led to the county being sued by Highland citizens and landowners. Their attorney, David Bailey, calls this step a “bogus” attempt to fix what should have been done earlier in reviewing HNWD’s application.
 
Essentially, state law says whenever a locality adopts a comprehensive plan, the plan “shall control the general or approximate location, character and extent of each feature shown on the plan.”
 
Then certain structures, including utilities whether they’re publicly or privately owned, cannot be constructed unless their location and character has been approved by the planning commission as being “substantially in accord with” the plan.
 
Dowd explained state code does not define what it means to be “substantially in accord” with a comprehensive plan, but cited a Supreme Court of Idaho case in which the phrase had been defined as meaning the governing body must make a “factual inquiry” into whether a request reflects the goals of a plan and takes those factors into account in light of the circumstances of a request.
 
From that case, Dowd told planners they were charged with making a factual inquiry into whether HNWD’s project would reflect the goals of Highland’s comprehensive plan. She provided sections of the plan to the commission, along with the county’s resolution attached to HNWD’s conditional use permit.
 
Bailey said, “No matter how hard they try to fake it, it isn’t going to survive a legislative review … They can’t fix it now.”
 
Bailey has argued in court the county failed to conduct this kind of review and allow planners to make this determination before supervisors voted to approve HNWD’s permit. “They (the county) authorized it without that review … They can’t now go back and do it after the fact. It’s a bogus attempt to fix one of the many procedural mistakes they made. The planning commission has a very important role to play,” he said. “This happens all the time, and depending on the nature of the error, some can be fixed. But this is a statutory error, and that’s different. Good luck to them.”
 
Planners have until April 20 to make a determination, and may hold a public hearing to do so, though they are not required to. If planners make no finding, HNWD’s proposal is considered to be in accordance with the land use plan. If the commission determines the utility is not in accord with the plan, HNWD can appeal to the board of supervisors. The board can overrule the planners’ determination.
 
HNWD, through attorney Lisa Anne Hawkins of Keeler Obenshain, applied for this determination last week, but not in time for the planning commission to consider it on last Thursday’s agenda.
 
The application describes the project plans, and states the project will “impose negligible requirements on the existing Highland County infrastructure while providing significant benefits to the area in increased local tax revenues.”
 
The developer cites determinations made by supervisors in approving the permit and says that according to the board’s findings, the location, character and extent of the project are in accord with the comprehensive plan.
 
“This is a very narrow look,” Dowd told planners. “It’s only a planning issue and siting, not a zoning issue.” She said HNWD chose not to ask for this determination before now, and reminded planners this was separate from HNWD’s proceedings with the State Corporation Commission.
 
County administrator Roberta Lambert agreed. “This was not initiated by the county,” she explained this week. “It was a condition of (the applicant’s) permit, but I can’t tell you why (HNWD) waited until now to make this application. It’s only one of the conditions on the conditional use permit.”
 
Zoning official Jim Whitelaw will prepare a report for the planners’ March 23 meeting, along with photos of the project site. He is to list advantages and disadvantages of the project site from a planning perspective.
 
Dowd told planners in her 13 years’ experience as county attorney, “My recommendation is, err on the side of more public input than less.”
 
Planners will take up a discussion of the matter in March, at which time they are expected to decide whether to hold a public hearing.
 
“Don’t talk to the press about your thoughts as you work as a group,” Dowd told the commission. “I recommend you say ‘no comment’ on advice of legal counsel due to litigation. You need time to let this sink in.”