by Allison Arends
Zimmerman, et. al. v. Wabaunsee County Board of Commissioners
(Kansas Supreme Court, October 30, 2009)
Wabaunsee County had no zoning regulations on wind energy systems. A month after the Wabaunsee county zoning administrator notified the Board of Commissioners that a company was interested in building a wind farm in the county, the Board passed a temporary moratorium on the acceptance of applications for wind farm projects until the planning commission held a public hearing to deliberate possible zoning changes. As part of the deliberation the Board ordered the planning commission to review and recommend updates to the county’s comprehensive plan, which had not been updated since 1974. In 2004, the planning commission recommended changes to the comprehensive plan which included goals such as increasing the organizational pattern of land use, maintaining rural character of the county, promoting business growth etc. Although the planning commission recommended allowing commercial wind farms, the Board added a new paragraph to the comprehensive plan which recommended prohibiting the development of commercial wind farms, and followed it up with zoning changes that carried out the ban. The Board found that, “They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan including the goals and objectives that were identified by the citizens of the county and incorporated as part of the Plan. Land owners in Wabaunsee county interested in developing commercial wind farms on their properties sued the Board arguing that the Board acted unlawfully and unreasonably in its prohibition of commercial energy conversion systems.
The Kansas Supreme Court supported the Board’s actions, finding that the Board acted within its legislative powers to adopt the ban despite the planning commission’s recommendations to the contrary. The court also validated the Board’s use of aesthetics as a justification for its decision, citing K.S.A 12-757(a) which states, “the governing body may adopt zoning regulations which may include but not be limited to, provisions which… (4)control the aesthetics of redevelopment or new development.” The court also noted that the Board acted reasonably when they argued that the commercial wind farms would not be in conformance with the Comprehensive Plan amended in 2004, and that the restriction would, “maintain the rural character of the county with respect to its landscape, open spaces, peace, tranquility and solitude.” The court recognized the wishes of the county’s residents as another factor that validated the Board’s decision to ban commercial wind farms.
Moreover, the court specifically addressed the ecological harm commercial wind farms would have upon the endangered Tall Grass Prairie ecosystem located within the county. The court observed that “Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county,” which make them “objectionable and unsightly.”