Reno Commission approves moratorium on wind, to consider development ban in zoned areas

The Reno County Commission on Tuesday approved a 90-day moritorium on commercial wind development in the county while it considers other restrictions.

The Reno County Commission agreed in a surprise move Tuesday to issue a moratorium on the development of commercial wind farms in Reno County through the end of the year and look at banning them in the zoned areas of the county.

In a pair of motions Commission Chairman Ron Hirst introduced, the board also directed the county planning commission and planning staff to draft regulations creating an overlay zone to regulate wind development in unzoned parts of the county.

The motions required scheduling public hearings on both proposals, which the commission will take up on Dec. 27.

Proposed wind regulations that the county commission, and the planning board before it, have wrangled with for more than 18 months were scheduled to be taken up on Tuesday, after being tabled for six months.

A memo attached to Tuesday’s commission agenda, apparently prepared by a planning consultant for the county, offered the board more than a half dozen options: from adopting the regulations as the Reno County Planning Commission originally proposed, to amending them further, to issuing a one-year moratorium and then drafting regulations to ban them.

As soon as the item came up on the agenda, Hirst introduced the twin motions, which included a 90-day moratorium rather than a year.

At the request of Commissioner Daniel Friesen, the board quickly moved into a 30-minute executive session with legal counsel before returning to vote on the two motions.

Cautious approach

Hirst’s first motion referred to the desire to draft regulations that would prohibit Commercial Wind Energy Conversion Systems in the zoned areas of the county. The motion included directing staff and the planning board to “provide notice of a public hearing” on the proposed regulations.

“This is based on the fact to legally enable prohibition on industrial CWECS without the possibility of a long and costly suit against the county if an outright ban is questioned,” Hirst said.

A suit against the county by NextEra Energy remains pending in the Kansas Court of Appeals. Filed a year ago in October, it is scheduled for a cause of action hearing before the court at 9 a.m. Oct. 14.

The corporation is trying to overturn a local court decision that found petitions filed by landowners opposed to the Pretty Prairie Wind Farm, a proposed 81-turbine wind farm in the southeast quadrant of the county, were legally sufficient.

Those petitions forced a unanimous county commission vote to grant a conditional use permit required to construct the development, and the commission vote, now more than two years ago, was 2-1. Friesen subsequently replaced the late Bob Bush on the board.

In discussing his motion Tuesday, Hirst referred to a memo from Russ Ewy, a planning consultant who assisted the county in drafting its most recent comprehensive plan and who first suggested the possibility of a county-wide wind overlay zone.

“I’m not trying to hurry it, I’m not trying to delay it,” Hirst said, noting he thought the recommended one-year moratorium was too long, but that county staff also needed time to draft the ban. 

He noted the county’s comprehensive plan also may have to be amended, so it’s not in conflict with a prohibition.

“It seems like we’re awfully worried about the legal ramifications of this decision,” Friesen said, "but the commission has not had time to discuss with our legal counsel together on this issue. I’d prefer a 30-minute privileged discussion with counsel prior to voting on this matter.”

Commissioner Ron Sellers agreed.

“I think the commission needs to better understand the legal ramifications of your proposal and how it might work to the future passing of some agreement,” Sellers said.

Timing

After returning to the meeting, Friesen referencing the discussion in the executive session asked whether the board wanted to send the issue back to the planning commission or just decide on the issue Tuesday.

“I feel like this is likely the most studied matter that the commission has ever had before, and I feel like we have the appropriate said information to make a decision, even if that decision is to prohibit wind in zoned areas of the county,” he said. “I’m worried we're going to open up a divisive issue again, knowing what we know already, and knowing what we expect the decision to be of this commission.”

Hirst said he’d love to agree with Friesen, “and I do, except for the fact I’m being cautious.”

Returning to the proposed motions, the board agreed first to table indefinitely the pending regulations drafted by the planning commission that the county commission was amending.

“That gives the opportunity to bring it back up, further down the line, and to leave that up to the next commission when they want to take it off the table,” Hirst said.

The commission then voted unanimously to impose the moratorium and have language for the proposed ban drafted.

Hirst then made the motion to draft regulations creating a special zone for wind in unzoned portions of the county. His motion initially didn't draw a second until Hirst reminded the board that residents in the unzoned portions of the county had no recourse if a wind farm wanted to come in.

Getting it done?

County Counselor Joe O’Sullivan questioned whether staff and the planning commission would have enough time to conduct two public hearings on the two proposals because they could not be done simultaneously.

County Planner Mark Vonachen said they could get the language drafted in that time, but he wasn’t sure if they could meet the required legal notice requirements on the public hearings, which must be published a couple of times before a hearing.

Hirst then suggested extending the moratorium out another 30 days, but Sellers objected.

“My second (on Hirst’s motion) was to Dec. 27, and that’s my second,” he said.

Friesen then complained about not receiving a copy of the proposed motions ahead of time.

“These are big decisions,” Friesen said. “They require consultation with our attorney. I didn’t come prepared to answer these questions today.”

“My first initial thought is anyone in an unzoned part of the county has the opportunity to petition to be zoned at any point,” Friesen said. “They may like the fact there are no restrictions out there. We don’t know that. I suppose this would make that more known if we asked for feedback, but at the same time, no one is petitioning. We’ve not heard from anyone in the unzoned area asking for this regulation.”

“I understand your concern, but I think I agree with the chairman,” Sellers said. “We do need regulation within even the unzoned portion of the county. That’s why I support it.”

That motion passed 2-1, with Friesen voting no.