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Palm Springs cleared in suit over wind farm notification

U.S. District Judge Manuel L. Real tossed the final remaining count in Wind Energy's lawsuit, which challenged the city's approval for a proposal from NextEra Energy Resources LLC to repower its 49.5-megawatt wind farm in Riverside County, Calif. - a project about which Wind Energy said it was not sufficiently notified.

The city of Palm Springs did not violate Wind Energy Partnership Ltd.'s due process rights by inadequately notifying the wind power developer last year about a rival project taking place on adjacent property, a California federal judge ruled Monday.

U.S. District Judge Manuel L. Real tossed the final remaining count in Wind Energy's lawsuit, which challenged the city's approval for a proposal from NextEra Energy Resources LLC to repower its 49.5-megawatt wind farm in Riverside County, Calif. - a project about which Wind Energy said it was not sufficiently notified.

The judge found Wind Energy was well aware of its Florida-based peer's plans to overhaul a Windpower Partners 1993 LP farm and add turbines that could possibly interfere with wind flow to Wind Energy's own Palm Springs operations, so the plaintiff's due process rights remained intact.

"There is no rigid formula regarding type of notice that must be given to satisfy due process," Judge Real wrote in a conclusion of law that dismissed with prejudice Wind Energy's bid for injunctive relief.

In late February 2010, a NextEra operating subsidiary applied to Palm Springs for a conditional use permit... more [truncated due to possible copyright]  

The city of Palm Springs did not violate Wind Energy Partnership Ltd.'s due process rights by inadequately notifying the wind power developer last year about a rival project taking place on adjacent property, a California federal judge ruled Monday.

U.S. District Judge Manuel L. Real tossed the final remaining count in Wind Energy's lawsuit, which challenged the city's approval for a proposal from NextEra Energy Resources LLC to repower its 49.5-megawatt wind farm in Riverside County, Calif. - a project about which Wind Energy said it was not sufficiently notified.

The judge found Wind Energy was well aware of its Florida-based peer's plans to overhaul a Windpower Partners 1993 LP farm and add turbines that could possibly interfere with wind flow to Wind Energy's own Palm Springs operations, so the plaintiff's due process rights remained intact.

"There is no rigid formula regarding type of notice that must be given to satisfy due process," Judge Real wrote in a conclusion of law that dismissed with prejudice Wind Energy's bid for injunctive relief.

In late February 2010, a NextEra operating subsidiary applied to Palm Springs for a conditional use permit that would allow it to replace, relocate or add new turbines to the Wind Power Partners farm, which began commercial operation in 1994, the judge noted.

One month later, when Wind Energy started talking to NextEra about purchasing a parcel of land on the rival farm's property line, NextEra approached Wind Energy officials with a waiver outlining its repowering proposal. The waiver made it clear the repowered Wind Power Partners farm could disrupt air flow to Wind Energy's turbines and asked that the company pledge not to interfere with the repowering project, according to the judge.

Wind Energy declined to sign the waiver, and by the end of the year, Palm Springs had approved the conditional use permit that NextEra needed for the repowering. As part of its approval process, the city mailed notices to all property owners within a 400-foot radius of NextEra's farm, published a notice of the proposal in a local newspaper and similarly publicized a Dec. 8, 2010, public hearing on the repowering plan, Judge Real found.

Wind Energy later closed on the parcel purchase. The California developer and affiliated companies sued in December, claiming Palm Springs wrongly gave its blessing to a pair of windmills that were too close to Wind Energy's existing and proposed turbines, hindering their ability to operate.

Wind Energy argued the NextEra project "effectively prohibits" it from pursuing its own wind farm on the adjoining land, and that it stood to lose $12 million. In addition, impacts from the NextEra project would cause $2 million in losses at Wind Energy's existing Karen Avenue Windfarm, located downwind of NextEra, the lawsuit said.

In March, Judge Real tossed five of the six counts Wind Energy brought against Palm Springs, city officials, NextEra and its wind farm. On Monday, he rejected Wind Energy's arguments in his dismissal of the remaining count.

"The specific language of the waiver informed plaintiffs that defendants' repowering project would potentially cause waking or interfere with wind flow," Judge Real wrote. "This gave plaintiffs actual notice of both the repowering project and that their right would potentially be impinged upon."

The judge further noted that he barred Wind Energy's claim because it was not until after Palm Springs finished its permitting process that the developer purchased the parcel that made the neighboring farms too close for comfort.

"We are pleased with the result and agree with Judge Real's decision," NextEra spokesman Steven Stengel told Law360 on Wednesday.

Representatives for the other defendants and for Wind Energy and its affiliates did not immediately respond to requests for comment.

The defendants are represented by George T. Caplan, Kristopher S. Davis and Paul M. Gelb of Drinker Biddle & Reath LLP.

The plaintiffs are represented by John J. Flynn III and Benjamin Z. Rubin of Nossaman LLP.

The case is Wind Energy Partnership et al. v. NextEra Energy Resources LLC et al., case number 5:11-cv-02050, in the U.S. District Court for the Central District of California.


Source: http://www.law360.com/calif...

JUN 13 2012
http://www.windaction.org/posts/34064-palm-springs-cleared-in-suit-over-wind-farm-notification
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