County Receives Legal Challenge Seeking to Reverse Approval of Amended Wind Farm Plan
Suit Filed Under Rule 106
El Paso County, CO, March 5, 2015 – The El Paso County Attorney’s Office is aware of a lawsuit challenging Board of County Commissioners approval of changes to the original plan for a wind farm in eastern El Paso County. In addition to asking the court to order the Board of County Commissioners to reverse its February 5, 2015 approval of those changes, the suit contemplates a temporary injunction to prevent the start of construction.
The original wind farm plan, including some 147 turbines spread over nearly 25,000 acres south of Calhan received final approval from the Board of County Commissioners after a lengthy hearing December 19, 2013. Then the project was acquired by NextEra Energy, one of the largest wind farm operators in the country and an application was made for amendments to the original plan. The Board of County Commissioners approved those changes following a marathon public hearing February 5, 2015 during which many citizens spoke both in favor and in opposition to the proposed changes.
The suit challenging the Board’s approval of the changes comes under what is commonly referred to as “Rule 106” in Colorado law. Under “106” local land use decisions can be challenged in court on mostly procedural issues. Plaintiffs in a rule 106 appeal typically argue that the elected officials making the decision did so without following proper procedures and that their decision was “arbitrary.”
The lawsuit does not appear to focus a challenge on the 2013 approval of the wind farm itself. It challenges specifically the February 5, 2015 Board of County Commissioners approval of changes to the original plan. The County believes that the requested changes were a given full and thoughtful consideration, established processes were followed and evidence on both sides of the land use request was considered in making a final determination. The County rejects claims made in the lawsuit and notes a particularly troublesome and erroneous claim that there was executive session involving Commissioners and the applicant. No such meeting ever occurred. However, the County understands that land use decisions often require the difficult balancing of the rights of many different property owners and respects the right of citizens to appeal difficult and controversial land use decisions such as this to the courts through the rule 106 processes.
It is nearly impossible to predict a timetable for court consideration. But if a request for a temporary injunction is submitted, it might be heard in a matter of weeks while a full appeal through the rule 106 processes could be pending into next year.
NextEra has indicated that it plans a job fair in the Calhan area later this week and anticipates the start of construction later this month.