Supreme Court rules AGAINST the (Say Yes to BigWind Board) in Ohio

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A bit of good news!  On Thursday, the Ohio Supreme Court filed its decision in the Black Fork Wind case.  In a 5-2 decision, the OSC ruled in favor of the local citizens who have been fighting this battle since 2009.  A copy of the decision is attached.

As we reported last August:

This project has a long and tangled history including an application filed in June, 2014 to amend the project with bigger turbines. This amendment was filed only days before the “new” revised setbacks measuring from property lines became law.   We think the timing of that filing was purposeful and was intended to dodge the new setback requirements. Since that time, the developer has requested other amendments to their certificate,  including additional extensions of time.  But after the 2014 setback law became effective, requiring amended projects to lose their grandfathered status and adhere to the revised property line setbacks, the developer and the Ohio Power Siting Board chose instead to consider these changes by way of “motions” not “amendments”.  

 The Ohio Supreme Court case challenged the OPSB’s use of motions when amendments are required by law.  The decision in favor of the local citizens was written by Justice DeGenaro and joined by Justices O’Connor, Kennedy, French and DeWine.  Justice Fisher wrote a dissenting opinion in favor of the Power Siting Board and he was joined by Justice O’Donnell, father of wind lobbyist and attorney, Terrence O’Donnell.   Justice Kennedy separately wrote an opinion on why the Fischer/O’Donnell dissent was wrong and Justice DeWine agreed with Kennedy.    Sadly, Justice DeGenaro was defeated in the recent election.   Justice O’Donnell has been forced to retire due to age limits.  Both DeGenaro and O’Donnell will be replaced in the New Year by Cleveland Democrats, Melody Stewart and Michael Donnelly.

The Black Fork case will now be sent back to the Ohio Power Siting Board.   We think the project should be considered “dead” because the certificate has expired.  Black Fork, which is owned by Capital Power of Alberta, Canada should be required to start from scratch.  The Court’s decision acknowledges that the OPSB could declare the Black Fork certificate to be expired. It remains to be seen what OPSB will do.

Unanswered is the question of whether the Ohio Power Siting Board will require the developer to abide by property line setbacks.  On page 12-13 of the decision, the Court states:

“Because this case can be resolved on the issue whether the board properly extended Black Fork’s certificate by granting its motion and because the board did not fully address the setback issues in the orders on appeal, we decline to decide in this appeal the applicability and constitutionality of the setback provisions in R.C. 4906.20(B)(2) and 4906.201. Resolution of those questions must await a case in which the issues are squarely before us.”

 The wind developer wanted to submit an additional document which challenged the constitutionality of the setback provisions but the Court denied their request.   The issue of whether the setbacks are constitutional was raised in a lawsuit filed last November in Paulding County by four leaseholders and MAREC (Mid-Atlantic Renewable Energy Coalition) whose attorney is Terrence O’Donnell.   See www.toledoblade.com/business/energy/2018/11/15/property-owners-sue-over-wind-turbine-setback-requirements/stories/20181115180  for more information….

 

Board Must Reconsider Change to Wind Farm Construction Plan

photo of wind turbinesAmended plans for a proposed wind farm must return to the Ohio Power Siting Board and go through the board’s amendment process. (Image: Thinkstock/mj0007).

Altering a wind farm’s construction timeline is an “amendment,” and a proposal for a 91-turbine farm must return to state regulators for an extension, potentially subjecting the facility to stricter state rules, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 that the Ohio Power Siting Board improperly approved a request by developers of the Black Fork Wind Energy Project to extend the date to begin construction from January 2017 until January 2019. …

Justice Kennedy also wrote a concurring opinion, which both supported the majority’s reasoning and raised objections to Justice Fischer’s dissent. She wrote that the law applies to more than a change in a facility, noting that “the legislature did not hide substantive limitations on the amendment of a certificate in a provision that specifically addresses when ‘the board shall hold a hearing.’ ” Rather than limit the types of changes that constitute an amendment, she explained, the hearing provision “simply distinguishes a category of applications to amend a certificate—those proposing a change in the facility—in which a hearing similar to the one required to be held upon an initial application may not be required.”

Article

Rural Greenwich, Ohio, taking BigWind to the supreme court

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“according to Ohio law, before the Ohio Power Siting Board can issue a certificate for a windfarm, the board must be able to show the proposed windfarm will comply with various requirements related to flicker, sound and ice throw. The board was supposed to have developed rules related to those requirements by 2008. The board “never issued those rules“…Setbacks exist for a reason and that is safety. Few people know that the NW Ohio wind site in Paulding county experienced a blade shear. How far away was a piece found? More than 900 feet away!! How does the OPSB stay in business??…….

A rural Greenwich group’s fight to keep wind turbines out of their neighborhood is headed to the Ohio Supreme Court.

A state board on Thursday gave Windlab USA, a wind turbine developer, the go-ahead to construct 25 turbines in rural Greenwich, rejecting a request for a rehearing by a couple who lives by the future development.

The project will comprise 4,600 acres and up to 25 turbines, each 490.5 feet tall with rotor diameters of up to 383 feet….

 

A point of contention is whether Monica Jensen, Windlab USA’s vice president of development, has secured the necessary signatures from all adjacent property owners to bypass the minimum setback requirements.

Jensen on Thursday said she has “15 waivers” from residents whose property violates those setbacks.

But Sam Randazzo, an attorney for the Greenwich Neighbors United, a group opposed to the wind turbines, said of the 25 proposed turbines, 62 percent violate the minimum setback requirements. He added that amounts to “at least 100 property owners.”

“The only way the construction can proceed is if (Windlab) obtains waivers from all adjacent property owners,” Randazzo said.

The attorney said if you draw a circle based on a one-mile radius from the center of the proposed windfarm, there are more than 900 residences, in addition to “many active farms” as well as recreational and hunting businesses.

“That is why there has been such strong opposition,” he said.

“There’s no way that they have secured waivers from all of those property owners,” Randazzo said. He added that the ruling handed down by the siting board Thursday stipulates that Windlab must have those signatures before starting to construct a turbine.

“At the end of the day, they can’t construct anything unless they secure a waiver from the adjacent property owners,” he said. “That would be against the board’s order.”

Schilling confirmed the ruling requires the signatures.

The attorney was asked about the 15 waivers Jensen said she’s obtained….

The lawyer also said according to Ohio law, before the Ohio Power Siting Board can issue a certificate for a windfarm, the board must be able to show the proposed windfarm will comply with various requirements related to flicker, sound and ice throw.

The board was supposed to have developed rules related to those requirements by 2008. The board “never issued those rules,” Randazzo said. He added, therefore, the board issued Windlab USA a certificate to construct before the developer can demonstrate they can satisfy those requirements.

Opponents have also raised concerns about noise, adverse health effects and impact to wildlife….

Source: Winds in rural Greenwich are blowing toward Columbus … specifically the Ohio Supreme Court

Ohio Power Siting Board members need to live within Wind Farm

No surprise.  Yes, the wind-opposition group had an opportunity to voice their concerns. NO, they weren’t actually HEARD. The OPSB is a “yes” group, and some say they work behind the scenes with the wind groups. They have NEVER denied an application for a wind farm in Ohio. I don’t think they ever will, until one ends up in their backyards….

In a unanimous decision, the Ohio Supreme Court cleared the way yesterday for construction of a 24,000-acre wind farm in Crawford and Richland counties.The justices upheld the Ohio Power Siting Board’s decision to approve the application of Black Fork Wind Energy to build as many as 91 rotary turbines near Shelby. The company says the wind farm will provide up to 200 megawatts of renewable energy.

via Supreme Court: Wind farm can move forward in Richland, Crawford counties | The Columbus Dispatch.