Agenda - Planning Commission - 03/05/2009

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January 10, 20091 Volume 3 I No.1 required county approval of any "wind farm" location through a per- mitting process. The ordinance did not zone for wind farms. Instead, it required applicants to apply for both a site-specific rezone as well as a site-specific amendment to the comprehensive plan in order. to ob- tain a development permit. Over seven months, Horizon and the Board of County Commissioners ("BOCC") negotiated in an attempt to site the Project in accordance with the Code. Ultimately, they could not reach an agreement: The BOCC wanted the wind turbine setback to be greater than that proposed. Horizon contended that an increase in setbacks to that desired by the county would reduce the Project by half and make the Project economically unviable. After the BOCC denied Horizon's application, Horizon filed a re- quest for preemption with the Council. The council voted to preempt the Code and to recommend approval of the site certification. Ulti- mately, the governor approved the site certification agreement. The county and residents of the county opposed to the Project (here- inafter collectively, the "county") filed petitions for review of the gov-, ernor's final determination. The Council asked the Supreme Court of Washington to take the case, which it did. DECISION: Affirmed. The court held that Horizon's. site certification for the Project was properly approved. Under EFSLA,the State could preempt local land use law to permit the construction and operation of wind turbines for energy production in the state. The county had argued that EFSLA did not authorize the State to preempt county land use laws when siting a facility that exclusively ~sed wind power-such as Horizon's Project. The court disagreed. The court found that "[b]y its very terms," EFSLA applied to an energy facility that exclusively used wind power. EFSLA defined the scope of energy facilities it .covered to ir).clude: "the construction ... of a new ... energy facility that exclusively uses alternative energy resources...." "Alternative energy resources" were defined as including wind. Since the ~roject proposed to use wind energy, it was governed by EFSLA, said the court. The court rejected the county's argument that the Act should be in- terpreted to exclude wind and wave action projects because EFSLA's definition of "energy facilities" included thermal, natural gas, and pe- troleum facilities, but made no reference to any alternative energy re- sources. The court said such a reading of EFSLA would render mean- ingless the legislature's explicit inclusion of wind as an alternative en- ergy resource under EFSLA. Thus, the court concluded, EFSLA applied Zoning Bulletin @ 2009 Thomson Reuters 9 75.