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3-1 vote in favor - Planners deem wind plan a fit

MONTEREY — Despite another strong majority opinion from citizens to the contrary, Highland New Wind Development’s application with regard to the comprehensive plan has now been deemed in accordance with land use goals by Highland planners

A now four-member planning commission voted 3-1 Wednesday, giving the developer a nod for moving forward now that it has met one of several conditions attached to its local permit.

Planners Jim Cobb, Doug Gutshall and Harry Sponaugle found the utility in accordance with the plan; Tony Stinnett was the lone dissenting vote.

Cobb, commission chair, required each planner to set forth their comments in writing. After a brief executive session to consult with county attorney Melissa Dowd, they made statements aloud before any motion was made.

Gutshall, the newest commission member, congratulated citizens for their cordiality at Tuesday’s public hearing on the issue. “We as commissioners share common concerns with you,” he said. “Though we might not agree on this particular issue, we hope there will something down the road we can agree on.”

Gutshall said projects that meet all comprehensive plan and zoning ordinance requirements are moved ahead, but those that do not meet all the requirements are sent by the zoning administrator to the planning commission for review if he deems an application has substantial merit. The commission then passes on a recommendation to supervisors, with approval or disapproval, or... more [truncated due to possible copyright]  
A now four-member planning commission voted 3-1 Wednesday, giving the developer a nod for moving forward now that it has met one of several conditions attached to its local permit.

Planners Jim Cobb, Doug Gutshall and Harry Sponaugle found the utility in accordance with the plan; Tony Stinnett was the lone dissenting vote.

Cobb, commission chair, required each planner to set forth their comments in writing. After a brief executive session to consult with county attorney Melissa Dowd, they made statements aloud before any motion was made.

Gutshall, the newest commission member, congratulated citizens for their cordiality at Tuesday’s public hearing on the issue. “We as commissioners share common concerns with you,” he said. “Though we might not agree on this particular issue, we hope there will something down the road we can agree on.”

Gutshall said projects that meet all comprehensive plan and zoning ordinance requirements are moved ahead, but those that do not meet all the requirements are sent by the zoning administrator to the planning commission for review if he deems an application has substantial merit. The commission then passes on a recommendation to supervisors, with approval or disapproval, or with no recommendation at all.

“That’s about all I have to say right now,” he concluded.

Stinnett explained he had set aside any personal views about the project in order to reach his decision. He reviewed the plan, and the staff report prepared by zoning official Jim Whitelaw, and noted there were issues in the analysis that could support the project being consistent, and those that could not. But in his opinion, he said, “The overriding theme in the comprehensive plan appears to be beauty, aesthetics, and rural character.” The need to protect the Staunton-to-Parkersburg Turnpike, he said, was specifically cited.

Sponaugle based his decision on economics. He emphasized the comprehensive plan’s goals for economic opportunity and improved tax base, though he noted scenic views do “come into play.”

Cobb reiterated the legal description of comprehensive plans as guides for the future, and that they are to be general in nature. “It is clear the comprehensive plan is intended to be a guide,” he said. “Not all issues could be foreseen. No one has a proverbial crystal ball to predict the future.”

Further, he said, the legal interpretations of finding the project “substantially in accordance” with the plan do not mean simply finding more statements to support a one determination over another. “Virginia code does not tell me a preponderance of” comprehensive plan topics must be found.

After reviewing comments from Tuesday’s hearing, and every page of the plan, Cobb said he counted 23 separate points supporting the project as not being in accord. However, he said, “I found not less than 19 other points,” plus conclusions in Whitelaw’s report, that support the project as being substantially in accord. The decision requires only substantial support, not majority support, he said.

Cobb listed some of the points in the plan he believes support the project as being in accord, including its location in one of the least populated areas of the county and its potential for creating economic opportunities and a stronger tax base.

Sponaugle made the motion to find the project in accordance with the plan; Gutshall seconded the motion. It passed favorably 3-1, with Stinnett dissenting.

Lisa Kodger resigned her post as a fifth commissioner member last week, and did not participate; several citizens speculated she would have voted with Stinnett in the minority on this issue. Kodger has declined to say publicly how she may have voted.

A 90-minute public hearing was held Tuesday night, where once again the majority spoke in favor of finding the utility not largely in sync with comprehensive plan goals and recommendations.

Cobb enforced the commission’s rules and procedures, which allowed each speaker to talk for three minutes, cite pages of the plan supporting their positions, and did not allow opinions to stray from the narrow issue up for discussion.

Fourteen of 15 citizens speaking, using statements from the plan, substantiated their belief the utility was not the right project in the right place for Highland.

The lone supporter, Dave Smith of McDowell, said he felt the project was supported by the document since the facility could potentially increase tax revenue, and would be near an existing 69 kv transmission line in a remote area of the county. He also pointed to a statement in the comprehensive plan that referred to “thinking regionally,” which he said he felt was very important. Smith argued in his view, the utility could be considered a light industry — a category the plan supports for development.

Attorney Lisa Hawkins of Keeler Obenshain, a Harrisonburg law firm representing HNWD and its owners, the McBride family, made a presentation on behalf of her client. She told planners they could support a favorable review due to the comprehensive plan’s statements supporting industrial development in appropriate areas. She noted HNWD’s project was to be located where a primary road and transmission line already exist. She said the site was already in pastureland and required minimal deforestation. In addition, she noted, supervisors had imposed conditions on the permit that required vegetative screening to reduce visual impact, and returning land to original conditions after any access road improvements.

Hawkins said the location was ideal for such a project because that area of the county was sparsely populated, and out of the view shed of Monterey and McDowell, and most tourists visiting the county. She pointed to a low average daily traffic count to support her arguments that section of U.S. 250 was the least traveled. She also pointed to the developer’s noise impact analysis which she said showed any noise nuisance from the 400-foot turbines would be “generally acceptable.”

David Bailey, attorney representing residents and landowners suing the county for issuing HNWD’s local permit, objected to the proceeding entirely. He said it was his opinion that, by law, the planning commission had no jurisdiction in the matter (see related story).

That said, he told planners there was case law supporting the specific way he felt they could undergo their process. “You need to be very careful about using the right standard of review,” he said. Bailey explained finding HNWD’s project “substantially in accord” with the comprehensive plan meant they could only undergo a “fact finding” mission to determine whether the utility was in “factual agreement” with the plan. And since the plan nowhere addresses wind utilities, the commission could not in fact find it in accordance.

While many will point to certain sections of the comprehensive plan to support their arguments one way or another, Bailey said, “for the most part, that doesn’t help you. Many of those statements are conflicting in themselves and don’t lead you anywhere.”

Not only that, Bailey said, but the utility section of the comprehensive plan was the only section was adopted as procedure, not guidance, and cannot therefore be judged as a “recommendation.” The comprehensive plan explains the rest of the sections are treated as guidance, but the utility section is treated differently.

Citizens opposed to finding the utility in accordance listed several major areas of discussion in the comprehensive plan that addressed the need to protect Highland’s rural and scenic character, its focus on supporting existing businesses, and the goal of supporting industrial development only in clusters designed in established growth areas.

The utility proposed by HNWD, they said, did not support those goals. In fact, Carol Bandy of Blue Grass said, the project was “substantially in discord” with the comprehensive plan.

Laurie Berman of Hightown, who lives in close proximity to the project site, pointed out that HNWD’s map in its application omitted the location of three of the homes nearby, including her own. Cobb interrupted her comments and asked her to mark those places on his map with a red pen. Hawkins later apologized on behalf of HNWD for leaving off those residences, saying it was unintentional.

John Sweet of Mustoe pointed out that last summer, as supervisors prepared to vote on whether to issue a permit to HNWD, they had prepared two different resolutions to support a decision for approving or not approving the permit, both citing sections of the comprehensive plan to support the arguments. “Comparison of these resolutions easily shows that the resolution of denial is the stronger of the two, even though it was not ultimately adopted. These documents demonstrate that wind turbines are not substantially in accord with the county’s comprehensive plan,” he said.

Randy Richardson of Monterey was one of those involved in developing the current comprehensive plan. “The authors (of the plan) were only interested in available power, which they thought was adequate,” he said. “This (utilities section) goes back to the original plan and all updated plans.”

The commission’s vote in support of the project’s accordance with the plan Wednesday night stands, and no further action by supervisors is required.


Source: http://therecorderonline.co...

APR 20 2006
http://www.windaction.org/posts/2361-3-1-vote-in-favor-planners-deem-wind-plan-a-fit
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