Lawsuit against El Paso County wind farm project to continue 

A lawsuit seeking to dismantle a wind farm project in eastern El Paso County will proceed despite objections from both El Paso County and the wind farm’s owner, NextEra Energy Resources.

But while the county will have to defend its February approval of the wind farm, attorneys will also fight a separate claim that the county’s 15-hour hearing on the project was a farce and that the vote was predetermined based on pressure from NextEra.

The claims were lobbied against the commissioners by the El Paso County Property Rights Coalition, the group responsible for the lawsuit, after the approval of the wind farm outraged residents who fear that their property rights and personal health will suffer. County officials say they have good grounds in the case and will likely prevail should the issue make it to trial.

“We do have what we consider to be ample evidence” that the commissioners did not violate any processes or rights, said Kenneth Hodges, assistant county attorney.

The Golden West wind farm has been a sore topic for eastern El Paso County residents since it was approved by the commissioners in December 2013. Initially owned by Clipper Windpower, the commissioners approved the project with an underground transmission line, but after NextEra bought it, the company went back to the commissioners to get an above-ground transmission line approved. The Feb. 5 meeting to approve changes to the project was a marathon of public testimony in which eastern plains residents testified for and against the wind farm.

The decision to give the project the go-ahead was greeted by jeers from the audience, and in March was followed by a lawsuit.

The lawsuit centers around two procedures, a Rule 106, which allows administrative decisions to be challenged and possibly reversed in court, and a Rule 57, a so-called “declaratory action” the coalition is using to allege that the county violated due process when it approved the wind farm. Both NextEra and the county are defending themselves against the Rule 106 claim, which alleges that the wind farm will have negative impacts on neighbors. The county alone faces the Rule 57 claim, and will have to prove that it did not censor public comment during a hearing and that it was not swayed in its decision by NextEra.

Although the two claims against the county and NextEra have been upheld by the court, there have been setbacks for the property rights coalition, a group of homeowners who claim their properties will be impacted by the rising wind farm. Last month, District Judge Larry Schwartz dismissed the group’s request to issue an injunction to halt all construction in the area, as well as claims in the lawsuit made by individual homeowners whose properties wouldn’t be impacted by the wind farm.

Meanwhile, the addresses of the members of the property rights coalition have been called into question after NextEra and the county claimed that the properties of some members aren’t near any wind farm infrastructure. Coalition lawyers have refused to provide a list of names and addresses of its members, something Schwartz has asked for.

But Schwartz also validated a fear that many eastern county residents have expressed for months, namely that the wind farm will hurt their property values. In a May 22 court order, Schwartz drew on a case precedent and wrote that the “proximity to the property is generally sufficient to establish potential for harm.” Schwartz also addressed the Rule 57 claims that the county censored public comment and was motivated to approve the wind farm to avoid a lawsuit with NextEra.

The censorship of the public comment could be cleared up by reviewing the recorded February hearing, Schwartz wrote.

“But the more troublesome issue is how to deal with the factual allegation that the Commission had predetermined to approve the amendment to avoid a threat of suit, which threat had allegedly been communicated outside of a public hearing,” Schwartz said.

The coalition’s claim is based on a brief television interview with Commissioner Amy Lathen, recorded by Gazette News Partner KKTV, in which Lathen said that voting against a project like NextEra’s could result in a lawsuit against the commissioners. Lathen’s voicemail box was full when The Gazette attempted to contact her.

The county disputes the claim that any decisions were predetermined, said Hodges. But even it is proven in court that the commissioners acted to avoid a lawsuit there could be no legal recourse for the coalition.

“I just don’t know (what would happen),” Hodges said. “I would not foresee the ruling going their way, so it’s hard for me to guess what a judge might do it if did.”

Without an injunction, the wind farm’s construction proceeds apace, and as of late July, 60 of 145 turbines could be seen towering over the plains east of Calhan. NextEra is also building an above-ground transmission line for the project, and has erected 200 out of 300 towers that make up the 29-mile line, said David Gil, a NextEra spokesman. If the weather cooperates, the project should be finished by the end of October, Gil said.

Although the effort to stop the project’s construction failed, area residents remain bitterly opposed to it. They monitor traffic through the area vigilantly, and are concerned for their safety on county roads, said Sandy Wolfe, a coalition member. Other residents like Cindy Cobb, who lives along the transmission line route, fear the potentially negative health effects of living so near to a wind farm.

Since construction began, the county has hosted two public meetings to field concerns about the wind farm, but has no plans to host another, said Dave Rose, a spokesman for the county. Instead, residents were given a list of people to contact with concerns about the project, Rose added.