Kansas Supreme Court rules against wind farms

TOPEKA, Kan. - The Kansas Supreme Court ruled Friday that Wabaunsee County commissioners have the right to prohibit the construction of commercial wind farms in their county.

But the court also questioned whether an ordinance banning commercial farms but allowing smaller wind generators for personal use violated some provisions of the U.S. Constitution. Commissioners adopted the ordinance in 2004.

In a unanimous decision, the court acknowledged the commission's concerns about potential harm to the aesthetics and ecology of the Flint Hills if huge wind turbines were erected in Wabaunsee County.

The court also considered opposition from a majority of county residents who attended 54 public hearings on commercial wind farms.

"Today's ruling on the issues is the first in Kansas and perhaps in the country where the construction of commercial wind farms as an alternative energy source is being pitted against landowners seeking undisturbed vistas of their wind-swept countryside," Supreme Court spokesman Ron Keefover said in a news release.

The Flint Hills - site of the last remaining unplowed tallgrass prairie in the country - are considered among the best places in Kansas for wind farms because of existing power transmission lines.

They cover more than 6 million acres in eastern Kansas, stretching from the Oklahoma border to almost the Nebraska border. While the Flint Hills offer scenic and broad prairie vistas, there's also enough steady wind in places to attract developers.

Supporters of wind energy view it as a method of generating revenue for developers and user fees for landowners. They say the Wabaunsee County ban on commercial wind farms violates their personal property rights.

But opponents fear hundreds of turbines towering 300 or more feet above the landscape will disrupt the natural beauty of the prairie, create noise pollution and hurt dwindling populations of prairie chickens, which won't mate anywhere near large structures.

On Friday, the court agreed that the county commission's rationale for the ban "could reasonably have been found to justify its decision: that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and for that reason should be prohibited."

Still, the court was not convinced the ordinance is constitutional.

Owners of wind rights say the ordinance constitutes a "taking" of their rights without compensation. There's also a question of whether the measure discriminates against interstate commerce, since it allows for generation of wind energy "to reduce onsite consumption of purchased utility power," for personal use only.

Oral arguments on those issues are scheduled for late January.

J.W. Prairie Windpower, the Lawrence subsidiary of a German company that wants to develop a wind farm in Wabaunsee County, declined to comment on the Supreme Court ruling because company officials haven't had time to review it.