Wind turbine foes sue Botetourt County 

Rules that could govern the state’s first commercial wind farm fail to protect the public from dangers posed by the giant windmills, eight Botetourt County residents say in a lawsuit.

“Industrial wind turbines are known to catch fire, to collapse, emit audible and low frequency noise, cause shadow flicker and to throw ice from spinning blades in the wintertime,” the lawsuit states, adding that they also kill birds and bats and destroy their habitat.

Filed last week in Circuit Court, the lawsuit challenges an ordinance passed in June by the Botetourt County Board of Supervisors in anticipation of a company’s plans to build up to 25 turbines on a ridgeline north of Eagle Rock.

Although Charlottesville-based Apex Clean Energy has yet to apply under the new ordinance, it is pursuing plans at a pace that could make it the first wind energy developer to do business in Virginia.

The lawsuit asks a judge to invalidate the county’s ordinance.

But Botetourt County Attorney Michael Lockaby said the recent additions to the county’s zoning ordinance remain in effect, and that the lawsuit’s attacks on them are “completely false.”

“We will vigorously defend it because we think it’s a good ordinance,” Lockaby said Tuesday.

The lead plaintiffs in the lawsuit are Raymond and Faye Hundley, whose land borders private property on North Mountain that Apex has proposed to lease for operation of the wind turbines.

Among other things, the Hundleys fear that the ordinance’s restriction on noise caused by the turbines – no louder than 60 decibels when heard from the nearest property line – will be inadequate for the type of sounds expected.

“Low frequency noise is a vibrational noise that penetrates structures, causes disorientation and sleep disturbances which lead to secondary detrimental health impacts,” the lawsuit states.

Flickering shadows cast by the spinning blades can cause motion-type illness and nervous disorders, the Hundleys and six other county residents claim – a concern they say is heightened by the fact that the ordinance would allow the turbines to stand 550 feet tall, taller than the Wells Fargo building in downtown Roanoke and higher than allowed by any other city or county in Virginia with a similar ordinance.

“Logically, the taller the structure the further the shadow cast,” the lawsuit states.

The 20-page filing also alleges – “upon information and belief” – that development for a wind farm is already under way on North Mountain, even though no permits have been issued by the county. That assertion is based in part on one of the plaintiff’s observation that a creek on her property, which flows from the proposed site, runs nearly dry in the day before regaining some current overnight.

By allowing such work, the county is “has fostered an environment of lawlessness,” the lawsuit states.

Lockaby, the county attorney, said he was not aware of any work on the 7,000-acre property that would require a building permit from the county. Tammy Belinsky, a Floyd County attorney who filed the lawsuit, could not be reached for comment Tuesday.

Some of the county residents who joined in the lawsuit live farther from the proposed wind farm than the Hundleys. Their concerns are that the ordinance would allow turbines on other county ridgelines, such as Tinker Mountain.

“The reasonableness of the wind ordinance is not fairly debatable,” the lawsuit states. “Rather, the ordinance is unreasonable, arbitrary and capricious.”

Some of the same concerns were voiced by residents of Poor Mountain, who filed a similar legal challenge in 2011 after Roanoke County passed an ordinance that would have allowed wind turbines near their homes. That project, proposed by a Chicago-based wind energy company, never got off the ground. The case is still listed as active in Roanoke County Circuit Court in the case information website.

When Apex’s plans for Botetourt County were made public in February, opposition was slow to gel – perhaps because the proposed location for its wind farm is far more remote than the one on Poor Mountain.

But by the time the board of supervisors held a public hearing on the proposed ordinance in June, a small gathering spoke in opposition. They were outnumbered more than 2-to-1 by supporters, and the supervisors opted to place rules on the books – with the option of tinkering with them later, if the need arises.

The county spent more than six months working on the ordinance, which officials said attempted to strike a balance between concerns raised by residents and the economic potential of a project that would produce enough electricity to power 20,000 homes.

Apex officials have said that if their plans go forward, the turbines could be spinning by 2017 or 2018.