Judge reviews case law for wind appeal

Whitman County’s attempt to establish laws regarding commercial wind turbine installations hit the doldrums again last week.

The hangup came when Superior Court Judge David Frazier said he will need research time after a hearing on the process which led up to adoption of the law last November.

Thursday’s hearing was on Prosecutor Denis Tracy’s motion to dismiss two appeals on planner Alan Thomson’s decision that the ordinance presents no significant environmental impact. Thomson made that decision before the Whitman County Planning Commission approved its draft of the ordinance and county commissioners approved a revised draft.

Roger Whitten and Carolyn Kiesz, both residents of the Thornton-Oakesdale area where Palouse Wind is currently studying wind patterns, filed the appeals.

“The issues in my mind are not as clear as you all are saying here,” said Frazier after the hearing.

Judge Frazier discounted Tracy’s arguments that the petitions did not relate to the ordinance as it was finally passed. County commissioners passed an ordinance that changed the setback requirements approved by the planning commission.

Kiesz told the court Tracy’s argument meant she would have had to file another appeal of the ordinance as well as Thomson’s SEPA ruling.

“Why should she have to pay $230 more?” Judge Frazier asked rhetorically, referring to the court’s filing fee.

The judge said in his view the pre-ordinance arguments by Whitten and Kiesz were linked to the final ordinance that evolved.

Tracy also argued for dismissal on the grounds that Whitten and Kiesz have not lost anything by the passage of the ordinance and should therefore have no cause to appeal.

Both countered that argument by saying the ordinance would hurt the value of their properties, because of their proximity to the potential wind farm site.

Tracy cited case law backing his assertion, and Judge Frazier said he would need time to study those cases before making his ruling.

The appellants contend the ordinance fails to protect neighboring landowners because of what they consider to be an incorrect standard for measuring noise pollution was used.

Kiesz attacked the ordinance for allowing turbines to be built on buttes which are off limits for housing development. Kiesz also said the ordinance does not require enough studies on potential impacts to wildlife, specifically birds and bats.

A denial of Tracy’s motion would put the actual appeal before the court.

Thomson has told the Gazette he has received inquiries from wind turbine developers who have said they intended to await an outcome of the challenge before beginning the process of permitting a wind farm.