Wind farm, zoning cause concerns 

Less than a year after the implementation of countywide zoning, Ellis County Planning and Zoning commissioners have a big decision to make. The commissioners will have the opportunity to grant or deny a conditional use permit for the proposed Ellis County wind project at Wednesday’s public hearing.

The fact that zoning implementation and wind farm development occurred in the same time frame – and the fact that two members of the original Ellis County Joint Planning Commission own property in the proposed project site – has concerned some residents.

“I am not against wind farms, and I have the utmost respect for the people who will benefit from them. I commend their foresight,” said Jason Dinges, who lives on Smoky Hill River Road. “I am against commissioners and committee members with hidden agendas and conflicts of interest.”

Ellis County commissioners adopted countywide zoning regulations on Aug. 28 and enforced them on Sept. 1 following a year-long moratorium.

According to Ellis County Commission minutes, commissioners appointed the Ellis County Joint Planning Commission on May 9, 2005. From this time until the county adopted zoning regulations on Aug. 28, this group was responsible for formulating guidelines for county commission approval.

These appointments were made by county commissioners – some members had volunteered, others were asked by the commissioner in their district, Commissioner Dennis Pfannenstiel said.

The positions of chair and vice chair were determined by the joint planning commission at the first meeting on May 23, 2005, according to minutes obtained from the Ellis County Environmental Office.

Among the original appointees was Jo Kraus, who served as vice chairwoman from April 2005 to June 30, 2006, and has entered an agreement that would allow turbines to be placed on her property.

According to the May 23 minutes, Kraus was nominated to serve as vice chairwoman by Leo Dorzweiler.

Kraus said that while she had her reasons for serving on the committee, the wind project was not one of them.

“I didn’t want to see big, confined animal feedlots in the county because our water sources are too valuable,” Kraus said. “I didn’t want to see a lot of residential development in areas where there’s not enough water to sustain them.”

The wind project was not an ulterior motive, and the members of the board represented several local business interests, Kraus said.

“What about the conflict of interest with, was it Kent Laas, the Realtor who was on the committee?” Kraus said when asked about accusations of conflict of interest. “What about the conflict of interest of Leo (Dorzweiler) being an oil man on the committee? That’s just the leverage of the business that we do in the county.”

Kraus’ term expired June 30, 2006, before the final zoning regulations were approved. While she voted on individual decisions, she never voted on the guidelines as a whole, she said.

Chairman Lance Russell also was appointed to the committee and elected as chairman of the planning and zoning commission in 2005. He was nominated to this position by Leo Dorzweiler, according to May 23 minutes, and his term expires on June 30, 2008. Russell owns land in the proposed project site and is remodeling a home in the area; however, he does not own enough acreage to have turbines placed on his property, he said.

“I do have family members that will have towers,” Russell said. “I personally don’t have one. I don’t have enough land to have a tower on.”

Russell decided to recuse himself from acting as chair for all issues regarding the wind farm proposal to prevent the appearance of conflict of interest, he said.

“I’m only stepping aside as chair for this public hearing for this issue because I don’t want there to appear to be any conflict of interest,” Russell said. “If there might be, in appearance, I feel it’s my duty to step aside.”

According to the June 29, 2005, joint planning commission meeting minutes, members of the commission who shall legally have a conflict of interest or believe they might have a substantial interest in any matter shall voluntarily excuse themselves, vacate their seat and refrain from discussion and voting on said item as a commission member.

On May 13, Russell filed a report with the Ellis County Sheriff’s Office after finding a threatening sign on his property. The plywood sign was painted with the words “get out” and a hangman’s noose in red.

“I would hope that it wouldn’t be related to the wind farm project,” Russell said, “but I can’t see any other reason why.”

The Ellis County Environmental Awareness Coalition – a group of residents opposed to the proposed wind project – has responded to the threat, offering a $250 reward for information that leads to a conviction, said co-chair Tim Davis.

“The ECEAC was founded to foster a rational and civil discussion and responsible decisions about the existence and placement of the industrial wind complex,” Davis said in a press release.

Kraus and Russell are related by marriage; a considerable portion of land under easement within the proposed project area belongs to extended family.

Landowners were approached by the company, not the other way around, said Dana Kraus, Jo’s husband.

Wind resource and proximity to the power grid were the two key location factors – a 230-kilovolt grid exists near Hays, he said, referencing a state map of wind energy resource and electric transmission.

“Our high ground is straight west of it,” Kraus said.

Another Ellis County Planning and Zoning commissioner, Leo Dorzweiler, resigned from his position in March – his term was due to expire on June 30, 2008. His letter of resignation, on file with the Ellis County Environmental Office, refers to “unscrupulous tactics that were used to manipulate the zoning of Ellis County into place.”

Dorzweiler, who lives in Catharine, said that one of the reasons he resigned is because he believes zoning is not protecting the families who live in the proposed wind development area.

The letter of resignation asks if any illegalities or major conflicts of interest were involved in the zoning process.

However, others believe that countywide zoning is the only source of protection people in the proposed project area currently have.

“How is zoning a problem with respect to this proposed facility?” asked David Yearout, a planning consultant with the Wichita-based Baughman Co. “Without zoning, those folks would have no voice whatsoever.”

Yearout was the planning consultant hired by the county to help the joint planning commission create regulations for approval by the Ellis County Commission.

Yearout had been appointed by Gov. Kathleen Sebelius to serve on the Wind and Prairie Task Force, which was charged to develop principles, guidelines and tools that local entities can use as they address issues concerning wind energy development in environmentally sensitive areas, according to the Web site kec.kansas.gov. This group consisted of 18 representatives and delivered its final report to the governor in 2004.

The wind farm-specific Ellis County Zoning regulations were based on early work the county had done with the developers of the wind farm and were different than the model criteria originally submitted, Yearout said.

Yearout does not consider himself pro-wind – he said he is concerned about the lack of protection from the state government.

The Hays Daily News requested minutes from the first year of joint planning commission meetings, during which the zoning regulations were drafted for county commission approval.

These minutes, which record meetings from May 23, 2005, to June 28, 2006, do not record the adoption of wind project-specific zoning regulations.

However, Jo Kraus said that she had made the motion to adopt the regulations drafted by the county commissioners, though it was not with pro-wind motives, she said.

“I said, OK, “˜My understanding is that we’re supposed to recommend zoning regulations that the county commissioners will approve,’ “ Kraus said. “The county commissioners have already given approval to a set of regulations for wind farms. I said, “˜They can change anything we put in there.’ “

“Do we want to spend more time discussing these issues and have them change it back to this? Or do we want to adopt this as it is?” she said. “I said, “˜I move that we adopt them as they are.’ “

Kraus said she could not remember who seconded the motion, but there was no protest or further discussion before adoption.

“I suppose if there’s a conspiracy theory, that’s the thing that I feel the most guilty about,” she said. “It wasn’t because I wanted to rush wind zoning through, it’s because I was tired of having the meetings last 21┞2 to 3 hours.”

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At a March 28 public hearing, project manager Krista Gordon stated that guidelines set forth by the state of Kansas and the National Wind Coordinating Committee encourage wind companies to develop in locations “where there are regulations for wind projects.”

“When we initially came to Ellis County there weren’t, so there was a moratorium placed for a short period of time until regulations could be written,” Gordon said at the meeting.

This comment has fueled concern that zoning was a prerequisite to an area wind farm and made it easier for the project to move in, a statement Gordon said was misinterpreted.

“I’m sure that my comment at the March 28 meeting caused some confusion,” she said. “I meant it is good to work in a place that has regulations for wind projects, which were established in 2005 before the zoning was enacted.”

From a company standpoint, zoning regulations actually complicate the process, and the timing of the project was driven by market opportunity, Gordon said.

“The zoning thing happened to coincide timing-wise with our project,” Gordon said. “One did not drive the other.”

The Ellis County Zoning Regulations, which went into effect Sept. 1, contain 11┞2 pages of guidelines for commercial wind energy.

“Geary County has 28 pages of regulations that cover these things,” Davis said. “Our zoning document has a page of regulations that cover turbines. That’s the only protection the county has, since there are no federal or state guidelines.”

Wind-specific regulations originally were drafted by the Ellis County Public Works Department, the county counselor and Distributed Generation Systems, said Public Works Administrator Mike Graf.

These regulations were attached to a letter of support Ellis County commissioners endorsed on Aug. 29, 2005, and used to draft the guidelines in the zoning regulations.

However, all three commissioners serving at that time – Dennis Pfannenstiel, Vernon Berens and Chris Channell – said they were not informed of project specifics in 2005.

“Location was never discussed,” Berens said. “We did not know the numbers and exact location … we had no idea.”

Distributed Generation Systems Inc. delivered a presentation before the county commission on Aug. 8, 2005, and requested the commission’s letter of support.

According to the meeting’s official minutes, plans to install a meteorological tower were announced. It was also stated that the “large turbines” would be installed “east to west” and that construction would take six months and cost $1 million.

It also was announced that Disgen already had easements for the proposed wind farm turbines at that time, according to official commission minutes.

However, the adoption of wind-specific zoning regulations does not mean they’re set in stone, Berens said.

“Zoning is in place, and zoning will be necessary for future excursions later on,” he said. “Will we ever have perfect zoning regulations? No, that will never happen. But it’s a guideline with which we can add and subtract.

“I will venture to say there will be more wind farm guidelines added after this takes place,” Berens said. “Hopefully, the three commissioners will make the right decision.”

Commissioner Perry Henman agrees that zoning guidelines might need to be revisited, he said.

“I think we need to revisit our zoning regulations for the wind farm, and I think that would be helpful for everybody,” Henman said. “Even the wind farm people, because they would know where they stand.”

However, the idea that zoning implementation made the county more wind farm-friendly is a misconception, said Commissioner Dennis Pfannenstiel.

“If we wouldn’t have had countywide zoning, the wind farm would go and could go and there would be nothing anybody could do about it,” Pfannenstiel said. “Since we implemented countywide zoning, that’s the only right of protest people have who are living in the project area.”

“It’s the same way with north of Hays, when they had the proposed landfill,” he said. “If it wouldn’t have been for our moratorium in place, we’d have a landfill north of Hays and nobody would be able to do anything about it, either.”

Furthermore, zoning had been talked about long before wind farm development began – at least since 1999, said former Ellis County Commissioner Chris Channell, now a member of the Hays City Commission.

“It also surprises me that there’s a number of people who were very anti-zoning that seem to be very anti-wind,” Channell said. “I think the zoning is the only thing, right now, that is preventing the windmills from going up.”

At the time the letter of support was addressed, the year-long moratorium for zoning was in effect. Disgen had requested a letter of support for a bid process the company was involved in, Channell said.

“They weren’t asking for a conditional-use permit, they weren’t asking for rezoning, just for a letter of support,” he said. “There was no details at the time of where the project area was, no details as to the size, and they were also talking on a lot smaller scale.”

When the bid Disgen made to Kansas City Power and Light fell through in 2005, Channell said he “figured it was a dead issue.”

“I was kind of surprised, as most people, when it became an issue again so quickly,” he said. “I think all the county commissioners were out of the loop as far as the wind production.”

Because of countywide zoning, people in the project area have the option of filing a formal protest petition within 14 days after the planning and zoning commission makes a decision, according to the Ellis County Joint Planning Commission Procedural Guide.

The procedural guide states that if signed protest petitions amounting to 20 percent or more of the notification area surrounding the property in the application are filed with the Ellis County clerk within this time period, the application cannot be passed except by a three-quarters majority vote by the Ellis County Commission.

This means that a unanimous decision would be required to override the protest petition, said Ellis County Zoning Administrator Dale Wing.

Otherwise, the procedural guide states that the county commissioners may adopt the recommendation of the joint planning commission with a majority vote, or override the decision by a two-thirds majority.

“Zoning has been the one instrument that has given these people in the project area a voice in the matter,” said Channell, who served as county commissioner from 1999 to 2007, “which is one of the reasons why zoning was implemented.”

However, the protest petition also has been cause for concern – the conditional use permit application filed by CPV on March 3 states that “the project’s boundaries are US Highway 40 to the north, 170th Avenue to the west, Munjor Road to the south and 220th Avenue to the east.”

Technically, these boundaries encompass an area larger than what’s marked on the project map, said ECEAC member John Schmeidler.

Furthermore, the protest petition calls for signatures from 20 percent of the notification area, which includes all property owners within a 1,000-foot radius of project boundaries.

The wind development company recent announced that project boundaries had been drawn back, which makes the notification area unclear, Schmeidler said.

Schmeidler brought procedural concerns before the Ellis County Commission during the April 2 meeting, and was told the county counselor for this issue, now Dennis Davidson of Russell, would address these concerns.

Schmeidler still is awaiting clarification, he said.

By Kaley Lyon

Hays Daily News

hdnews.net

18 May 2007