DAVID CITY — The Butler County Board of Supervisors went on the record Monday in regard to recent regulations passed by six townships to restrict wind farm development.
County Attorney Julie Reiter, who advised the board on the issue, said it's not a question of whether the county board supports or opposes wind energy development.
The issue, she said at Monday's board meeting, is the opinion she put forward two weeks ago — only the county, not townships, has the authority to enact zoning regulations.
The county board voted 6-1, with Supervisor Greg Janak voting no, to send letters to board members of the county’s 17 townships informing them of the opinion. The regulations were passed in September by six townships — Franklin, Savannah, Linwood, Skull Creek, Oak Creek and Richardson.
Reiter's letter cites state statutes granting certain powers to electors of townships.
“The regulations passed by the electors in your township exceed these powers. They are in the nature of zoning regulations described under Neb. Rev. Stat. 23-114(2) in that they regulate height of structures, setbacks, noise levels and uses of land,” Reiter wrote.
She added that counties, not townships, have the authority to adopt zoning regulations, and, in addition, those regulations can only be enacted by a county board after it has adopted a comprehensive development plan.
Butler County officials previously worked on, but ultimately shelved a comprehensive plan and disbanded its planning commission.
The letter further states that regulations passed by township voters cause confusion “to other entities that may be affected” and asks the townships to take action to void them.
The letter emphasizes that the regulations, not wind farms, are the issue of concern.
“The county board respects your concerns regarding commercial wind energy conversion systems; however the regulations that have been passed are not enforceable under law. The board is hopeful that your concerns and interest of all parties involved can be addressed through mutual cooperation. The board is also willing to address your concerns with the wind farms that are seeking to locate in Butler County and help work toward an amicable solution that would be beneficial for all," the letter states.
Drawn up by the Bohemian Alps Wind Watchers, a group of citizens concerned about wind farm development proposed for Butler County, the regulations were proposed as safety rules. The rules ban high-voltage power lines from being installed under township roads, require wind turbines to be at least 1,640 feet from township roads and properties not participating in the project and place noise restrictions on turbines.
Lincoln attorney Greg Barton, representing Linwood, Oak Creek and Richardson townships, presented the opposing view. He said the regulations were not a grab for the county’s authority.
“By enacting these regulations the townships were not trying to usurp or interfere with the county’s authority. I can tell you that all of these regulations were structurally patterned after (those of) Summit and Read townships in 2006 and 2007,” Barton said.
Read and Summit enacted regulations related to Butler County Dairy’s use of pipelines to pump liquid manure to center-pivot irrigation systems. The townships banned the pipelines under roads. Those regulations also included setbacks, Barton said.
“No one was claiming Read or Summit was claiming to usurp the county’s authority,” Barton said.
Butler County was pulled into a court case involving the dairy and Read Township because dairy owner Todd Tuls asked the county board to overrule the township’s ban on manure pipelines under roads. The Nebraska Supreme Court upheld the township’s rules.
Barton noted that District Judge Mary C. Gilbride ruled the township’s restrictions were not illegal zoning.
Before the board voted, Supervisor Dave Potter said the townships' adoption of wind turbine rules was “sending a message to the county."
"Some folks want some rules and regulations," he said.
In each of the six townships, only a handful of people voted against the regulations.
Florida-based NextEra Energy is looking to install up to 112 wind turbines across northern and eastern Butler County and western Saunders County and Omaha-based Bluestem Energy wants to put two turbines east of David City.