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UPDATE: Cherry County District Court dismisses one lawsuit against Board of Commissioners, others

UPDATE: Cherry County District Court dismisses one lawsuit against Board of Commissioners, others

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UPDATE: Cherry County District Judge Mark Kozisek granted a motion to dismiss one of the lawsuits filed against the Cherry County Board of Commissioners and other defendants on Sept. 10.

According to Kozisek's ruling, the lawsuit (Case Number CI 20-44) was improper as state statute only allows for a court appeal for the original granting or denying of a conditional use permit. In this case, the plaintiff, Preserve the Sandhills, appealed to the court on a decision by the Board of Commissioners to grant an extension on the conditional use permit.

Kozisek said in his ruling that the extension is not reviewable by the court.

The other lawsuit, Case Number CI 19-74, where Preserve the Sandhills appealed the original granting of the conditional use permit to build wind tower generators is still pending in Cherry County District Court.

The original story, written by the Valentine Midland News and printed in the Sept. 16 edition of the Chadron Record, is shown below.

Reprinted with permission from Valentine Midland News

In the District Court for Cherry County, a suit was filed by plaintiffs Preserve the Sandhills, LLC, including several individuals against defendants Cherry County Board of Commissioners, BSH Kilgore, LLC, Cherry County Wind, LLC, and Bluestem Sandhills, LLC.

The suit was brought against the defendants after they had approved the Conditional Use Permit October 29, 2019. The suit states that the approval of the CUP followed a long process that contained numerous flaws, including improper legal advice from a layperson, incorrect standards and pervasive conflicts of interest.

BSH sought the CUP to develop, on a large and commercial scale, wind turbines throughout Cherry County and the Sandhills.

A lawsuit was filed before the Court on November 29, 2019, which is still pending - and is seeking to vacate the CUP.

This suit is being brought due to the extension that was granted to BSH that was heard by the County Commissioners June 9, 2020. Court documents state that BSH admitted that it has yet to commence development of the CUP and asked four an additional five years to commence development of the CUP and at least an additional one year beyond that to complete the development of the CUP. However, they could not guarantee that it could either start or complete the project within the additional time periods requested.

The 30 page filing said that BSH did not raise, and the Commissioners did not consider the lengthy time frames or the reasons for the request for the extension.

It further stated that the extension was approved because it greatly benefits the families of Commissioners Storer and DeNaeyer, who advocated for and voted in its favor. Commissioner James Ward voted against the extension and appropriately questioned the authority of the Board to grant the relief requested.

As stated, the extension was legally invalid because it was beyond one’s legal power or authority and was contrary to Cherry County Zoning Regulation 1010.

According to Cherry County Zoning Regulations Section 1010 - Development of any authorized conditional use shall be commenced within one year of the date of approval of such conditional use by the Board of Commissioners and development of said authorized conditional use shall be completed within two years from the date of approval of such conditional use by the Board of Commissioners or such authorization is automatically revoked.

The suit alleges the CUP was obviously granted under false pretenses and applied for prematurely as BSH never had the ability to commence or complete development of the CUP under the timelines requested in its original application.

Not stated in the suit, the original application was a 140 page document filed with the Cherry County Zoning Commission and was dated April 18, 2016. This document states that Bluestem Sandhills proposes to begin on-site construction in the late fall 2016 or early 2017. The life of the project is anticipated to be a minimum of 20 years.

A second application with 490 pages was filed in the spring/early summer of 2018.

With the extension they’ve requested, the date to begin would be late fall of 2024.

Preserve the Sandhills, LLC, is a company organized for and dedicated to preservation of the Sandhills and consists of approximately 500 ranchers, taxpayers, property owners, business owners, residents, and concerned citizens of counties located within the Sandhills area, including Cherry County.

Some of their members live in close proximity to the proposed wind turbines and will suffer direct and irreparable harm, including adverse impacts upon their property values, quality of life, and right to quiet enjoyment, intrusion of their views, light, and air, impacts upon their ranching operations, health consequences, noise, vibrations, increased traffic and other nuisances and dangers. There are 10 individual plaintiffs who oppose, resist, and challenge the CUP.

The suit claims they raised concerns about the legality and appropriateness of the proceedings, were denied notice, due process and an adequate opportunity to be heard before the Board, and assert that the Board failed to perform its duties, and were directly impacted by the adverse decision to grant the CUP over their objections. Further they state that they were deprived of due process, adequate notice, and an opportunity to be heard or present evidence regarding the Extension, which was ruled on without a public hearing and solely based upon the statements of the BSH.

The Plaintiffs have standing to maintain this suit under Nebraska Statute 23-114.01(5) which does not limit or restrict who may appeal from a decision concerning a conditional use permit.

The second application was presented to the Cherry County Planning Commission which held a public hearing June 4, 2019. During that hearing, they were advised by Orval Stahr, a consultant of Stahr and Associates, Inc., Stahr was not a lawyer or licensed to practice law in the State of Nebraska. He was believed to be facing an investigation for the unauthorized practice of law at the time of his recent death on account of his advice to the Planning Commission. The suit claims that at the June 4, 2019 hearing, Stahr falsely advised the Planning Commission that its role was solely administrative and that it was essentially limited to determining whether the application for the CUP was filled out completely.

The plaintiffs objected to the false and improper advice, including because the Planning Commission’s main and crucial functions imposed by law, were to among other things “conduct studies and make surveys,” “make preliminary reports on its findings,” “hold public hearings,” make recommendations to the County Board, review and research conditional use permit applications, and “review and recommend conditions and actions to the governing body regarding conditional accordance with the procedures, requirements and limitations set forth in the zoning regulations of the County.”

Yet the attorney for BSH agreed with Stahr and argued that the Planning Commission’s sole role was effectively limited to determining whether the Second Application (490 pages) was filled out completely. The Planning Commission relied upon the false advice and did not perform any meaningful or substantive review or investigation of the Second Application, the suit claims.

At the July 2, 2019 hearing, by a vote of 8-0, the Planning Commission imposed a moratorium of No More Wind Energy or Solar Conditional Use Applications Until Regulations are Reviewed, Revised and Adopted.

At the September 17, 2019 hearing, the majority of citizens opposed the Second Application. Despite public outcry, an existing moratorium imposed by the Planning Commission, the lack of any substantive review or investigation by the Planning Commission, and the lack of any legal or factual basis to grant the Second Application, on or about October 29, 2019, the Board granted the Second Application and issued the CUP.

The suit goes into family connections for Commissioner Tanya Storer and Commissioner Martin DeNaeyer.

The suit says that they voted in favor of the CUP and the Extension, not for any legitimate reason, but to benefit their families. It further states that the families and personal connections to the CUP are much greater than presently known, but Plaintiff’s efforts to discover the full connections and financial interest have been delayed and impeded with the assistance of the Cherry County Attorney.

Additional grounds for invalidating the extension are based on the flawed and illegal procedure before the Commission caused by the erroneous, false, and improper advice of Stahr and BSH’s counsel. The Second application and extension should never have been considered because of the moratorium imposed by the Planning Commission and the obvious and logical need to fully investigate the impacts of wind turbines, particularly upon the Sandhills area.

The CUP and Extension are invalid because they allow property owners to put their properties to uses that are not listed among those uses specifically identified in the zoning district in which they are located.

The suit further alleges that Cherry Count Wind claims that the project will result in approximately $300,000 in annual landowner revenues alone.

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