Ruling due on wind proposal
Osage County’s decision on whether or not to allow construction of a wind-energy facility west of Pawhuska is expected to be announced Thursday during a special meeting of the county’s Board of Zoning Adjustment.
The meeting — which begins at 6 p.m. at the Osage County Fairgrounds Agriculture Building — will be a continuation of an April 10 public hearing on the proposed Mustang Run project. A Kansas-based company, TradeWind Energy, is seeking a conditional-use permit to allow for construction of the wind-turbine facility along a stretch of U.S. Highway 60 located just east of junction with State Highway 18 near Burbank. .
Substantial resistence to the project was presented at the April hearing, with the most vocal opposition coming from the Osage Nation. The two-hour hearing ended with the board delaying action on the permit until legal opinions could be obtained about matters that were presented at the meeting.
Attorneys representing Osage tribe informed board members of their recent filing of petitions “detailing reasons why the requested permit cannot be issued — according to law,”
Since that time, however, action designed to clarify the board of adjustment’s standing in the matter has been taken by the Osage County Board of Commissioners. At their April 28 regular meeting, county commission members approved a resolution for delegating its authority to the adjustment board in order to overcome one of the legal obstacles posed by the petition.
Osage officials were strongly opposed the move by county commission and the tribe has filed additional petitions challenging the adjustment board’s authority over wind-energy projects. The Pawhuska-based tribe is objecting to the legality of the TradeWind Energy project as well as one that previously gained the county zoning board’s approval.
In August 2011, Wind Capital Energy of St. Louis was granted a county permit on its proposed Osage Wind facility, which was to be built on leased tracts located near the current TradeWind site. Construction was delayed for nearly two years before TradeWind bought the Osage Wind project from Wind Capital for an estimated $60 million.
In advising the county commission on its resolution clarifying the procedure for permitting construction of a wind facility, Osage County District Attorney Rex Duncan stated it is his opinion that the board of adjustment already has the authority for issuing the required conditional use permit.
Osage Nation attorney Wilson Pipestem said the Osage County Wind Ordinance requires that developers obtain the conditional-use permit from the Board of Adjustment prior to the start of construction on an industrial wind facility.
Pipestem contended, however, that the county board is prohibited from issuing a permit for any purpose unless it specifically allowed by the county’s zoning ordinances. Since industrial wind-energy failities are not mentioned in the zoning ordinances, he claimed wind farms are not a permissible use for land zoned for agriculture — as is the Mustang Run property, he said.
The ON attorney advised the commissioners to consider denying all wind-turbine proposals. Pipestem reiterated statements made in April about work being undertaken by the tribe and others to have the area surrounding the proposed Mustang Run site designated, at both the state and national levels, as a Scenic Byway.
Following is a summary of the Osage Nation petition objecting to granting the conditional-use permit requested by the TradeWind company.
ON petition summary
The Pawhuska-Osage County Board of Adjustment (Board) should rescind Wind Capital’s variance and prohibit construction at the Project site until the Board properly authorizes the Osage Wind Energy Facility Project (Project). Action by the Board of Adjustment is necessary for several reasons. First, the Board of Adjustment failed to issue Wind Capital the proper type of approval required to develop a wind energy facility in Osage County. The Osage County Wind Energy Ordinance expressly requires a developer to secure a “conditional use permit” before constructing a wind energy project. The Board of Adjustment, however, issued Wind Capital a “variance” for its project. Conditional use permits and variances are two completely different land use authorizations—each serves a different purpose; each has its own distinct set of procedures; and each has different criteria that a project must meet before the Board may grant the authorization. Second, the Board lacks authority to issue a conditional use permit for a wind energy facility in Osage County, despite what is stated in the Wind Ordinance. The Pawhuska-Osage County Zoning Ordinance, which governs land uses within Osage County, does not identify a wind energy facility as a permissible use in Osage County. The Zoning Ordinance prohibits the Board from issuing a conditional use permit for a use that is not otherwise permissible in Osage County. Third, Osage County’s Wind Energy Ordinance does not provide the Board with authority to issue a conditional use permit; in fact, the Wind Ordinance expressly recognizes that a conditional use permit is a prerequisite to developing a Wind Energy Facility in Osage County, confirming that the Wind Ordinance is not a source of authority for issuing a conditional use permit. Fourth, the Project’s variance cannot properly authorize development of the Project. As stated, the Wind Ordinance identifies a conditional use permit – rather than a variance – as the prerequisite for the Project. Further, even if a variance were the proper Board approval, the Board lacks authority to issue a variance for a wind energy project, as this land use is not permissible under the Zoning Ordinance. Finally, even if the Board had authority to issue a variance here, the variance would be improper because the Project site fails to meet the Zoning Ordinance’s strict variance standards and the Board failed to make the findings required by the Zoning Ordinance. Given that the Board issued an incorrect and flawed approval for the Project, and that Osage County law fails to provide the Board with authority to issue a conditional use permit for a wind energy facility, Petitioners requests that the Board rescind Wind Capital’s variance and prohibit construction at the Project site until the Board properly authorizes the Project in accordance with County law.