Knox Co. To Mull Proposed Ban On New Wind, Solar Energy Projects

CENTER, Neb. — Renewable energy projects continue to be a hot-button topic in one northeast Nebraska county.

The Knox County Planning Commission has scheduled a special meeting, with two public hearings, for 6 p.m. Tuesday, May 6, to receive public comments regarding a proposed ban on all new commercial wind and solar energy projects in the county.

The meeting is slated to be held at The Barn at God’s Country, located at 53174 Hwy. 84 just northwest of Center, Nebraska, likely in anticipation of the attendance of a large audience.

The Knox County Board of Supervisors has asked the planning commission to consider testimony from the public — both pro and con — regarding the health, safety and general welfare of county residents as it relates to this matter; the effects on agriculture and recreational land; and whether new commercial wind and solar developments should be banned in the county.

The planning commission first will hold a public hearing, set to start at 6 p.m., on potential changes to Chapter 9, Community, Utilities and Energy, of Knox County’s comprehensive plan, and then will hold a second public hearing on the possible repeal, in their entirety, of Section 8.08, Commercial/Utility Grade Wind Energy Systems, and Section 8.23.05, Commercial Solar Conversion Systems, of Knox County’s zoning regulations.

The Knox County supervisors voted 6-1 on April 3 in favor of tasking the planning commission with researching and reviewing a potential ban on new commercial wind and solar energy projects in the county. District 5 Supervisor Kevin Mackeprang of Bloomfield, Nebraska, who has been supportive of renewable energy projects, was the lone dissenting vote.

During that board meeting, District 1 Supervisor and Board Vice Chairman Marty O’Connor of rural Crofton, Nebraska, said several Knox County constituents have told the board members about objections that they have to new commercial wind and solar energy projects in the county.

During the past year, the Knox County supervisors, by majority vote, have opposed North Fork Wind (NFW) LLC’s North Fork Wind Project and Bluestem Energy Solutions’ VRDG LLC solar energy project.

If it was built, the North Fork Wind Project, an industrial wind development project valued at about $1.3 billion, would reportedly cover more than 42,700 acres in Knox County and see the construction of more than 150 wind turbines, with each measuring more than 600 feet in height.

Bluestem, based in Omaha, Nebraska, wanted to have its 325-megawatt solar energy project constructed about 10 miles west of Verdigre, Nebraska, along the border of Holt and Knox counties. It would have cost about $450 million to construct and totaled about 1,150 acres of current pasture and row crop land.

“Knox County thrives on agriculture and tourism,” O’Connor said during the April 3 board meeting. “Both agriculture and tourism would be impaired and changed for decades by such a takeover of land belonging to the people of Knox County and the citizens that visit Knox County.”

O’Connor said the county supervisors needed to request that the planning commission review a potential ban of all new commercial wind and solar energy projects, conduct a public hearing as required and form a report for the board members “as to the recommendations and findings” of the commission.

He added that there also should be a repeal of the Knox County zoning regulations as they currently pertain to commercial wind and solar energy projects in the county’s comprehensive plan and a ban on new projects of this type in the county.

“Individual solar and wind use will be permitted as regulations allow,” O’Connor said.

The conflict regarding commercial wind and solar energy projects in Knox County blew up last July, when a majority of the supervisors approved five recommended amendments from the planning commission on commercial wind energy conversion systems, including the approval of a recommended 1.25-mile — 6,600-foot — setback from nonparticipating dwellings.

NFW — a wholly owned subsidiary of National Grid Renewables based in Bloomington, Minnesota — and about a dozen Knox County landowners — with whom NFW arranged lease and easement agreements — filed a federal lawsuit the next month against the county and several of its officials over wind energy zoning regulations.

The plaintiffs in the lawsuit against Knox County filed their original complaint last August in the U.S. District Court for the District of Nebraska, and an amended complaint was filed in October.

Senior U.S. District Judge John Gerrard, in a 40-page memorandum and order issued on March 14, granted in part and denied in part Knox County’s motion to dismiss the lawsuit filed against it by the plaintiffs.

“The plaintiffs have stated a claim under the Fifth Amendment Takings Clause, and its corollary clause in the Nebraska Constitution,” Gerrard wrote in his ruling. “The plaintiffs may also pursue state law claims, limited to those related to Knox County’s alleged noncompliance with publishing zoning ordinances. The remaining claims (against Knox County) will be dismissed.”

Gerrard noted that the limited avenue available to the plaintiffs to pursue their lawsuit may seem “stringent,” given the allegations concerning the conduct of the Knox County Planning Commission.

“But governmental bodies are provided wide latitude to enact laws that those bodies believe are in the best interest of the public,” the judge wrote. “It is not the place of the court to disrupt those decisions.”

The Takings Clause provision of the Fifth Amendment of the U.S. Constitution bars the government from taking private property for public use without just compensation.

Gerrard noted that to be successful in their Takings Clause claims, the plaintiffs must first prove that they had a “vested interest” in using the land at issue as a commercial wind energy conversion system.

“To do so, Nebraska law requires that the physical use of the land be of such a ‘substantial’ nature so as to put the ‘neighborhood’ on notice of the nonconforming use of the land,” Gerrard wrote. “The alleged behavior on the part of Knox County has no relevance to the determination of the plaintiffs’ property interest. Whether Knox County’s attitude towards wind energy is wise or in the best interest of its citizens are questions outside this court’s purview. Rather, those issues must be decided by the political process.”

National Grid Renewables, a U.S. onshore renewables business with projects in several states, is being sold by National Grid, a United Kingdom-based energy company, to Canadian investment firm Brookfield Asset Management for nearly $1.74 billion.

Emily Morissette, senior manager of marketing and communications for National Grid Renewables, told the Press & Dakotan that the North Fork Wind Project has been under development in Knox County for more than a decade, “in reliance on longstanding zoning regulations and with the full awareness” of area county residents and government officials.

“North Fork Wind and National Grid Renewables welcome the court’s recognition that the development activity warrants protection under state and federal law,” Morissette said. “While it dismissed some claims, the court recognized the fundamental premise of the lawsuit, which is that a county cannot arbitrarily undo those protections through zoning changes without potential legal repercussions.

“National Grid Renewables and affected (Knox County) landowners look forward to the lawsuit proceeding on that basis,” Morissette said. “National Grid Renewables and the landowner plaintiffs believe in the North Fork Wind Project and the benefits it will bring to Knox County and its residents and taxpayers.”

For more information on the Knox County Planning Commission’s upcoming special meeting, contact Kelsy Jelinek, the county’s zoning administrator, at 402-288-5618 or zoning@knoxcountyne.gov, or visit the county’s website at knoxcountyne.gov.