Ruling in favor of county in first round on turbines 

ALMA – A ruling to dismiss the wind turbine lawsuit against the county was good news for commissioners.

Attorney Bill Frost detailed the ruling to commissioners Monday, talking about the progression and arguments leading up to this point in the case.

He said the case has been whittled down bit by bit, with Judge Tracy Klinginsmith dismissing all but three of the original counts.

During the progression of the case, Klinginsmith retired, leaving Judge Michael Ireland to address the final three counts.

“Judge Ireland, in his decision, found that the county’s action was reasonable,” Frost said.

He said with a determination of reasonable action on the county’s part, the plaintiffs then were found to have no cause for action.

However, Frost said the case easily could be far from over, because at this point any party can ask the judge to modify or alter his decision within the next 10 days. And, an appeal may be filed within 30 days.

Frost added that the county might want to consider taking the opportunity to have parts of the decision clarified due to the potential for an appeal.

“On the oral arguments, the plaintiffs contended that they had been deprived of due process in this matter,” Frost said.

He said Ireland then questioned him as to whether he believed the plaintiffs deserved due process, and added the judge raised an eyebrow when Frost answered “no.”

However, Frost clarified to commissioners the reason for his argument, saying his research indicates the decision was legislative in nature because it involved a ban on wind turbines throughout the county rather than certain properties.

“That’s a major issue and a major factor in this case, that the action was legislative and not quasi-judicial.

He added that the opinion cited a recent article dealing with the topic of legislative versus quasi-judicial actions, and said the clarification he would potentially like to see in the decision write-up would reiterate that due process is not required for legislative decisions.

“I just hate to see it go to the appellate level with the record in the form it’s in,” Frost said.

Frost added that the dismissal this round bodes well for the county in all respects.

“It speaks well for what the county did and the way you did it,” he said. “I’m pleased with it. I hope you are too.”

Commissioners then spoke with County Attorney Norbert Marek, who was there for the update and also had hopeful comments on the case. Marek said the odds of the county winning in an appellate court are good coming out of a dismissal decision.

“I’d say between 80 and 90 percent of appeals are affirmed,” Marek said, adding that generally decisions made at district courts are upheld at the appellate level.

Marek also updated commissioners on his work in his office.

He said the latest update in the proposed sales tax for roads and bridges is that Jefferson County is trying to add an amendment to the bill, which could complicate the process. At this point, the tax question will not be able to be on the ballot in April, and commissioners hope to hear something in time to do a mail-ballot election and begin collecting the revenue in July.

Marek also asked whether the commission would be willing to hire a consultant this year to do a tax sale and wrap up a number of loose ends, including a property with back-taxes dating to 1986.

He said bringing in someone experienced with the process would help get the books up to date, and from there a small tax sale could be conducted annually.

Commissioners indicated interest in the idea, noting that this will get properties back on the tax rolls. They also asked whether this would be an opportunity to sell off a number of small properties currently owned by the county.

Concealed carry also came up, with Marek saying the legislation currently is addressing loopholes in last year’s bill.

Finally, Marek said last week’s jury trial for Paul Reeves resulted in conviction on three of five counts. Reeves was convicted on felony burglary of a dwelling, assault of a law enforcement officer (a misdemeanor) and resisting arrest (misdemeanor). He was not found guilty on charges of criminal damage to property and theft, both felony counts. Sentencing in the case will take place April 2.

In other business, several department heads visited with commissioners about County Government Day, with all agreeing it went really well.

“I think the individual participation was what made it a big success,” Treasurer Linda Coon said.

Under consideration now is how to plan for next year’s, including whether to have it in the spring or fall, how to get Mission Valley involved and whether to have one or two days next year.

Zoning Administrator David Stuewe talked with the commission about a letter he is sending to Higgins Stone in response to the company’s violations of weight limit rules on a county road.

Road and Bridge Department Supervisor Les Schrader said the Capoun Bridge is out and replacement is in the works. He added he hopes the weather cooperates for the project to be completed prior to taking seasonal precautions for the Topeka Shiner and Migratory Barn Swallow. He also presented a permit from Rural Water District No. 2, which was approved.

Requests were approved for Emergency Management and County Health to purchase items for their offices.

Commissioners also approved a Neighborhood Revitalization Act repealed denial.

By Sarah Gooding
for The Wabaunsee County Signal-Enterprise
STPNS

stpns.net

9 March 2007