Pure New Energy USA, the company proposing to develop the controversial Burleigh-Emmons Wind Farm, filed an appeal to the South Central Judicial District Court on Friday, challenging the Burleigh County Commission’s recent decision to deny 30 special use permits for the project.
According to the notice of appeal, PNE argues it “met any and all requirements for issuance of the subject permits and the board should not have denied its applications.”
Also, the company alleges the commission’s decisions and actions in denying its applications were “arbitrary, capricious and unreasonable, based upon substantial errors of fact and law, and not supported by substantial evidence.”
On Jan. 7, the county commission, which agreed to assume Morton Township's permitting authority for the wind farm because all three of the township supervisors are participating landowners in the project, voted 4-1 to deny the permits in Morton Township, as recommended by the county planning and zoning board.
“PNE designed and proposed a wind farm in accordance with all Morton Township planning and zoning requirements .... The decision of the Burleigh County Commission to deny the special use permits for the wind farm were without valid reasons and against the wishes of the local Morton Township community,” said Courtney Timmons, PNE's director of business development.
“The result of this process has harmed rural landowners, farmers and ranchers, the taxpayers of Burleigh County and the property rights of all landowners in North Dakota,” he said. “PNE and our landowners are requesting the district court address this inappropriate decision.”
Among the planning and zoning board’s reasons to deny the permits, as outlined in its report to the county commission, were property rights of nonparticipating landowners, pilots’ safety due to the project’s close proximity — within 15 miles — to the Bismarck Airport, as well as hindering the future expansion of the airport.
“They (planning and zoning board) felt it was not in the best interest of Burleigh County and for its residents,” said Ray Ziegler, Burleigh County's building official. “They recognized the nonparticipants have rights in this, too.”
Last month, prior to the county commission’s decision to deny the permits, a discussion took place in regard to the 567-foot height of the proposed turbines. According to Ziegler, 18 of the towers being proposed for Morton Township are not in compliance with rules set forth by the Federal Aviation Administration.
“Wind projects are constantly changing and so once we do have a permit in place that we can amend, then we would be coming back to request the changes and, at that time, they would have to be determined whether they are material or not and how to proceed forward,” Timmons said at the Jan. 7 meeting.
In December, more than 500 citizens attended a four-hour public hearing, in which passionate testimony was provided by both sides, at the Bismarck Event Center. The hearing resulted in 14 pages of meeting minutes, according to Ziegler.
Opponents raised questions about impacts to quality of life, wildlife, health and reduced property values. Supporters of the project emphasized the new jobs the project would create and other economic benefits to the community, particularly the local school district.
Burleigh County Commission Chairman Brian Bitner, who is also on the planning and zoning board, cast the lone dissenting vote last month to deny the permits. He said he was in favor of following Burleigh County State's Attorney Julie Lawyer’s advice, which was to send the matter back to the planning and zoning board to clear up some inconsistencies in its report.
“I thought that was a fair recommendation,” Bitner said.
“This should’ve been handled at the local level. I always felt it was a local issue to that township, to that area. And it didn’t need to be a county issue,” he added. “But there wasn’t any other option at the time for them or us.”
Through its appeal, PNE is requesting “relief in the form of an order and judgment directing that the permit applications be granted and the permits issued.”
“They’re appealing the decision of the county commission,” Bitner said. “That’s their right.”