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Kansas Supreme Court Selected Opinion Summaries - October 30, 2009

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefover@kscourts.org.

The Supreme Court today filed decisions in the following cases today. The full text of these decisions may be found at www.kscourts.org.

Appeal No. 98,847: Roger Zimmerman et al. v. Board of County Commissioners of Wabaunsee County

There will be no commercial wind farms built in the rolling Flint Hills of Wabaunsee County, at least for now, under a Kansas Supreme Court decision released today.

The Court, in a unanimous decision authored by Justice Lawton R. Nuss, ruled that the Board of County Commissioners of Wabaunsee County properly followed Kansas statutory procedures in adopting an ordinance prohibiting the wind farms' construction.  The Court ruled further that the ordinance met the Kansas statutory requirements for reasonableness.  The reasonableness was based in part upon the Board's consideration of aesthetics and the closely-related areas of ecology, flora, and fauna of the Flint Hills.  However, the Court said certain questions remain, particularly whether the ordinance passes muster under the United States Constitution.

Today's ruling on the issues is the first in Kansas and perhaps in the country where the construction of commercial wind farms as an alternative energy source is being pitted against landowners seeking undisturbed vistas of their wind swept countryside.  A majority of citizens attending the 54 public hearings conducted in Wabaunsee County expressed their opposition to the commercial wind farms, the Court decision noted.

The Supreme Court agreed that the Board's findings "could reasonably have been found to justify its decision:  that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and for that reason should be prohibited.

Justice Nuss observed that among the adverse effects of the commercial wind farms cited by the Wabaunsee County Commission are:

  • The Flint Hills of Kansas, of which Wabaunsee County is a part, contain the vast majority of the remaining Tallgrass Prairie, which once covered much of the central United States and which is considered one of the most endangered ecosystems in North America.

  • 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."

  • Wind farms would be detrimental to property values and opportunities for agricultural and nature based tourism. The Flint Hills are unique in their ecology, heritage, and beauty.

The Supreme Court determined that these factors, combined with the residents' wishes and the commercial wind farms' failure to conform to the county's Comprehensive Plan for land use, made the Board's rationale for the ordinance reasonable.

Even though the Court found the ordinance lawfully adopted and reasonable under Kansas statutes, the justices have ordered the parties to submit additional briefing and to appear before the Court for oral argument on several other issues.  These include claims that the ordinance violates certain provisions of the United States Constitution.  Among other things, owners of wind rights contend that Wabaunsee County's ordinance constitutes a "taking" of their property rights without just compensation, asserting that it is "no different than banning all oil and gas wells in Wabaunsee County and preventing use of mineral interests."  The Board contends that to prove an unconstitutional taking, these wind rights owners must show they were deprived of all economic beneficial use of the land as a whole, and not just their "discrete segment" of wind rights.

In addition to the takings claim, the Supreme Court has ordered the parties to address all aspects of whether the ordinance violates the Commerce Clause of the United States Constitution.  This requirement includes addressing possible discrimination against interstate commerce and possible burdens on interstate commerce, since the ordinance only allows generation of wind energy "to reduce on-site consumption of purchased utility power," e.g., for personal use.

Attorneys have been directed to submit additional briefs on those issues no later than 5 p.m., December 11, 2009.  A second round of oral arguments before the Supreme Court has been scheduled for January 27, 2010.