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o I I I l I /\ f ) (,.J Zoning Bulletin December 10, 20091 Volume 31.No. 23 est in the outcome). The Landowners and the Wind Right Own- ers asked the court to declare that the Amendment was improper and thus null and void. Among other things, they argued that the Board's decision to ban all commercial wind farms in the county was "unreasonable." The district court ultimately ruled in favor of the Board. It found that the county-wide ban on all commercial wind farms was based on: (1) aesthetics of county; (2) nonconformance of the commercial wind farms with the county's comprehensive plan; and (3) the wish- es of the county's citizens. These bases, held the court, were suffi- cient to sustain the Board's action. The Landownets and Wind Right Owners appealed. DECISION: Affirmed in part. The Supreme COurt of Kansas held that the county-wide prohibi- tion 'on commercial wind farms was a "reasonable" land use regu- lation. It was "reasonable" for the Board to adopt' the Amendment based on: (1) aesthetics of the county; and (2) nonconformance of the commercial wind farms with the county's comprehensive plan. The court explained: Both Kansas case law and Kansas shltutory law allowed aesthetics to be considered in zoning matters. K.S.A. 12-755(a} expressly allowed counties to "adopt zoning regulations which may include ... provisions which: ... control the aesthetics of redevelopment or new development." In the instant case, observed the court, aesthetic considerations in- cluded the fact that commercial wind farms would: "likely consist of complexes of a dozen or more turbines, located on ridge lines within the county"; and ~hich could be "seen from a distance of20,[sic] or 'more miles, east to west, and 30 miles, north to SQuth." Aesthet- ic considerations also included the fact that the county was located in the Flint Hills of Kansas, which contained "the vast majority of the remaining Tallgrass Prairie ... considered one of the.most en- dangered ecosystems in North America." The Board had found that commercial wind farms would: "be objectionable and unsightly"; "have an adverse effect on the scenic areas of the [c]ounty"; "be harmful to the environment and tallgrass ecosystem"; "beincompat- ible with the ... scemc character of the [c]ounty"; and "be detrimen- tal to propertY values ... and tourism." In sum, the court found, the Board had concluded that the commercial wind farms would "ad- versely, if not dramatically, affect the aesthetics of the county and for that reason should be'prohibited." The court held that such findings justified its decision to adopt the Amendment banning comniercial wind farms in the entire county. @ 2009 Thomson Reuters 3 65