ERIE – Neosho County Commissioners heard from an attorney who discussed a moratorium and county zoning on a controversial wind generation project.
Attorney Pat Hughes, with the Wichita law firm Adams Jones, talked to commissioners about what the county could do to regulate the Neosho Ridge Wind project, a proposal to construct 139 windmills to generate 300 megawatts of electricity in southwest Neosho County.
Hughes said he has been involved on many sides in wind power projects and land use since 2003, and represented Sedgwick County in defending its land use regulations.
Hughes said counties have local legislative power and general police power. He said zoning power controls land uses, and can regulate the way business is conducted.
“That power has limitations,” Hughes said, and that there is a misunderstanding among counties without zoning; they can regulate wind power projects without having to regulate other issues like machine shops or bank locations.
Hughes said a county can have a narrowly-tailored approach and do it without problems by acting reasonably and legally.
“In this case, we’ve got a little bit of a hiccup,” he said.
Hughes said a developer had proposed the project before regulations were in place.
“I’m not going to tell you it’s a good idea to rush and adopt a zoning regulation tomorrow,” he said. He cited Wabaunsee County as one that passed a moratorium while it dealt with regulation.
“Let’s remove the immediate risk,” he said.
Neosho County does not have countywide zoning and County Counselor Seth Jones has said in the past that creating zoning could cause problems. Commissioners had intended to include setbacks and other issues in project agreements for road use, monetary contribution to the county and decommissioning.
But Hughes said working things out by contract could be problematic.
“You’re not giving any protection for the citizens,” he said. This is a countywide problem, he said, because Apex Clean Energy, developer for Neosho Ridge, may not be the only instance where it comes up.
Hughes said it is not clear if the county can use agreements on issues that may be unrelated.
“You’ve got this tool that seems to appear attractive,” he said, and that the county has options that accomplish a protective purpose – and the most powerful one is to have zoning.
Hughes said it would require a number of public hearings to be able to work through issues. He said zoning could still be passed as long as Apex has not commenced construction.
“The point of no return isn’t crystal clear,” Hughes said, adding to several things about which Hughes was unclear.
Apex has previously said it wants to have agreements with the county in order to begin construction in August or September.