Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin November 25, 2011 I Volume 51 No. 22 county: (1) was an unconstitutional taking under the Fifth Amendment to the United States Constitution; or (2) violated the "dormant" Commerce Clause of the United States Constitution. The Background/Facts: Wabaunsee County is located in the Flint Hills of Kansas, "which contain the vast majority of the remaining Tallgrass Prairie that once covered much of the central United States." In the fall of 2002, the Board of County Commissioners of Wabaunsee County (the "Board ") heard that a company was looking to build a wind farm in the county. At that time, the county had no zoning regulations specifically re- lated to wind farms. However, under Agricultural. District Regulations, the establishment of a wind farm would have required the granting of condi- tional use permits ("CUP"s) under Board discretion to allow for the height of wind turbine structures. In November 2002, the Board adopted a resolution placing a tempo- rary moratorium on the acceptance of applications for CUPs for wind farm projects. Eventually, on July 12, 2004, the Board adopted a resolu- tion amending its zoning regulations to: (1) permit Small Wind Energy Conversion Systems ("SWECS"); and (2) prohibit Commercial Wind En- ergy Conversion Systems ( "CWECS," i.e., commercial wind farms) in the county. SWECSs were defined as those consisting of a wind turbine: with a capacity of not more than 100 kilowatts; less than 120 feet in height; and intended solely-to reduce on -site consumption of purchased utility power. CWECSs were defined as wind turbine systems: exceeding 100 kilowatts capacity; exceeding 120 feet in height; or consisting of more than one tur- bine apparatus and related infrastructure of any size proposed and/or con- structed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. Owners of land in the county (the "Landowners ") sued the Board in district court, challenging this zoning amendment. Owners of purported wind rights concerning other properties in the county intervened in the ac- tion. (Collectively, the "Landowners" and the owners of wind rights are hereinafter referred to as the "Landowners. ") Among other things, the Landowners argued that the Board's decision to amend the zoning regulations: (1) constituted a compensable taking under the Fifth Amendment to the United States Constitution; and (2) violated the "dormant" aspect of the Commerce Clause of the United States Constitution. The Fifth Amendment provides that no person's property should be tak- en without just compensation. The Commerce Clause empowers Congress to "regulate Commerce ... among the several states." Within that grant of power is a negative com- mand called the "dormant Commerce Clause." In essence, the dormant Commerce Clause prohibits "regulatory measures designed to benefit in- state economic interests by burdening out -of -state competitors." The district court judge held: (1) that no taking occurred; and (2) that there was no dormant Commerce Clause violation. The Landowners appealed. © 2011 Thomson Reuters 5