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Commission says 'yes'

By KALEY LYON

klyon@dailynews.net

For the second time in about a year, the Ellis County Joint Planning Commission recommended approval of the proposed Hays Wind project by a majority vote.

Following Wednesday's lengthy public hearing, the present commissioners voted 5-2 to recommend county commissioners approve the conditional-use permit application.

"There's a lot of points that have been made," Chairman Gene Bittel said. "Our counsel feels like we have the right to proceed. Our zoning administrator feels like the paperwork's been done properly."

The 200-megawatt project, headed by Iberdrola, would be located south and southwest of Hays and stretch across about 13,000 acres of land.

With the planning commission's approval, the application now will come before the county commission, which will make the final decision.

Commissioners Barbara Anderson and Bill Poland opposed the project, with commissioner Charlie Rohr absent.

Vice chairman Lance Russell recused himself from discussion and action pertaining to the project to prevent the appearance of a conflict of interest.

One concern voiced by both commissioners voting against the project was the fact the project's boundaries have been altered, creating gaps in the project area to allow for setbacks from neighbors not involved in the project.

By altering these boundaries, the company has reduced the feasibility for a valid protest petition, as provided for in county zoning regulations, Anderson said.

"By moving the boundaries back like this, it eliminates all of the protest," she said. "I don't think it's a fair tactic. I think it was a calculated thing they did, and they did it for one reason -- to stop the protest."

"I don't know that it was calculated and done for that reason, but it certainly gives the appearance of that," Poland said.

Because the project boundaries specified in the application have been drawn back, there are two "islands" of land that are slated for turbine placement but are not connected to the bulk of the affected area.

The issue was discussed in depth during the evening's public comment session as Wichita attorney Patrick Hughes, representing project opponents, discussed his legal concerns.

Hughes said the proposed project requires land not included in the application, and the record does not show that all landowners have consented to be represented by the company.

Hughes also said that not all landowners received prior written notice of the meeting, as required by statute.

"We're talking about whether notice was provided to everyone who's legally entitled to go to this hearing," he said. "That's important, because without that notice, there's no jurisdiction. So the hearing today, we may all be coming back again to repeat the process."

Project manager Krista Gordon attempted to refute those claims and others made by the almost 20 individuals who voiced opinions regarding the project.

Gordon said some of Hughes' comments would be addressed through "legal channels" at a later date, but said the company did obtain authorization from the landowners for representation.

"The concept that we haven't provided landowner authorization is false, as per the easement agreements themselves," she said.

"They not only authorize us to file easement agreements on their behalf, but instruct us to do so."

Hughes wasn't the only one questioning legal practice. Before the public hearing began, Anderson questioned the legality of continuing with the night's hearing, following an appeal filed for the local Board of Zoning Appeals.

"We're not the Board of Zoning Appeals now, it's never been stated that we were, and we're a planning committee," she said. "There's already been an appeal that was supposed to come before the Board of Zoning Appeals, and I think we're leaving ourselves wide open for a lawsuit if we continue with this."

Bittel, however, said legal advice suggested it was proper for the board to continue as planned with the hearing.

"I, as chair, sought counsel, I set the agenda," he said. "I was advised that this issue had no merit, and we should continue."

Poland also spoke against approving the project, citing concern that, as it is, it does not comply with the purpose of county zoning, which is to promote the health, safety, comfort and general welfare of citizens, he said.

"And I think that's problematic with the application," he said. "There are some islands, or holes ... in the project area that are not conducive to all of the citizens in Ellis County.

"I think there are some problems with the setbacks as it's shown ... and that simply opens it up for some of the objections to the project," Poland said. "I think we're hurting property owners in the area."

"That could be said both ways," Commissioner Dick Klaus said. "I've got a feeling the only way this is going to be settled is in court."

"I'm a landowner, not in Ellis County, and I would love to have a wind farm on my property. ... There's only one house within a mile of that property," Poland said. "But there are a lot of homes in this area. If there's one family that is seriously, adversely, affected by that, I think it can be cleaned up."

While the application's completion was questioned, Bittel said the application was much-improved from what was submitted last year.

"They've gone beyond what was done last year," he said. "Way beyond. And we approved that project last year overwhelmingly."

The company originally filed for a permit more than a year ago, with the planning commission recommending approval last June. The issue then came before county commissioners in September but did not pass.

Earlier this month, county commissioners voted to waive a year-long moratorium required by local law after the project application was denied, allowing the issue to return to the table.