By KALEY LYON

klyon@dailynews.net

At Thursday's Hays City Commission meeting, commissioners approved an ordinance regulating wind energy development.

The ordinance allows turbines with a maximum height of 125 feet within the 3-mile radius.

However, this provision could delay Fort Hays State University's plans to develop a 5-megawatt project on state-owned land near the edge of the city-governed 3-mile zoning area.

FHSU President Edward H. Hammond asked the commission to consider amending the ordinance to exclude university property from the height restriction. FHSU hopes to use three 400-foot turbines to offset energy costs, Hammond said.

"It could be very beneficial to our budget in a very, very difficult budget climate, as the Legislature talks about cutting anywhere from $3.5 (million) to $5 million out of our budget, that could mean lots of jobs at Fort Hays State University," Hammond said.

Rather than amending the ordinance, city commissioners encouraged Hammond to pursue other options, such as rezoning the property in question.

City Attorney John Bird said it could be legally questionable for the city to exempt one property owner from its zoning ordinance.

The purpose of zoning is to regulate proximity and land use, so to make an amendment based on land ownership would be questionable, Bird said.

"You do have the option to amend ordinances that come before you in that fashion, but you have to do it in a non-arbitrary fashion," Bird said. "Because zoning is such a special area of law that does invite a lot of public comment, it's probably close to arbitrary, if not definitely arbitrary, to shift courses now and start changing the entire thrust of this ordinance."

Instead of amending the ordinance, Bird suggested the university file to have the piece of property rezoned.

Commissioners agreed it would be wise to follow the advice of legal counsel.

"I just don't want to leave us open for lawsuits from other entities," Vice Mayor Ron Mellick said. "We're here to take care of the city. We want to help you out, but No. 1 we were elected to take care of the city."

FHSU general counsel Todd Powell had made the same request of the Hays Area Planning Commission last week. Bird said it was not the appropriate time for FHSU to request an amendment, as the ordinance already had been sent to the city commission, which had recommended specific changes.

When the planning commission met last Monday, it was only to vote on the changes recommended by the city commission. Any significant changes should have been discussed earlier, he said.

Hammond said the timing might not have been ideal, but said administration's plans have been altered due to the sudden availability of federal funds.

There are a number of provision in the American Recovery and Reinvestment Act under which the project could qualify, he said, noting the university must move quickly to secure the money.

"It's a major opportunity for us, for our university," Hammond said. "Not only would we get a multi-million construction project out of it, but the university would end up being able to save some money."

FHSU's wind project would comply with all other ordinance provisions, he said, noting the project will be located 2.5 miles from the university's Akers Energy Center.

It is impossible for the university to relocate the project out of city-governed territory because it doesn't own any land that far out, he said, noting the project has been placed as far as possible from city limits. However, other landowners have property in close proximity.

Currently, FHSU spends about $1.2 million every year for electricity. Wind data collected from the site of interest suggests 30 percent to 40 percent of the university's energy could be produced by the project, Hammond said.

"We appreciate Fort Hays State, and we want you to get whatever dollars you can to help not only our university, but our city," Mayor Barbara Wasinger said. "It's very difficult for us to go against the counsel of our attorney. ... We really feel for you. I think that you have a remedy, and I think John has outlined that."

In other business:

* In a 4-0 vote, with commissioner Chris Channell absent, commissioners voted to annex Glassman Corp. property on Commerce Parkway.

* Commissioners agreed to commit a maximum of about $140,000 to help Glassman Corp. construct a driveway entrance and street.

* A resolution authorizing almost $3 million in water and sewer repairs was passed.

* A bid in the amount of almost $46,000 was accepted for construction of sewer services on Commerce Parkway to serve the Glassman Corp. development.

* An ordinance regulating speed limits was amended. The speed limit for the new portion of 22nd Street between Canterbury and Commerce Parkway was set at 45 mph by a 3-1 vote. Commissioner Troy Hickman voted to set the speed at 40 mph.

* Public Works Director Brenda Herrman told commissioners the city did not receive federal funding from the American Recovery and Reinvestment Act.

* Commissioners entered a one-year contract for insurance brokerage and risk management services with Insurance Planning Inc.