The legality of a potential six-month moratorium on the receipt of wind farm applications was called into question during Monday’s meeting of the Huntington County Commissioners.
During the commissioners’ Jan. 13 meeting, Commissioner Leon Hurlburt moved to amend County Ordinance 2009-17, which would have allowed the county to suspend the receipt of the applications while the commissioners examine and make possible changes to the ordinance. The motion was not carried at the time.
Bob Garrett, legal counsel for Huntington County, said there were several legal problems with the proposed moratorium, including a possible violation of the 14th Amendment and regulatory taking of a landowner’s property without due compensation.
“It violates due process and is beyond the scope of your powers. You don’t have the power to do that. That’s the issue I see,” Garrett said.
Hurlburt said he still wants to take time to receive public input on the issue and take a more in-depth look at the current wind farm ordinance.
“I don’t know if there’s anything that needs to be changed, but I think we need some time to be able to investigate it,” he said.
According to Mark Mussman, director of the Huntington County Department of Community Development, amending the ordinance is still possible. The two issues in question are road maintenance and repair in relation to construction of a wind farm and the current setback requirement.
Under the current amendment, a wind turbine must be 1.1 times its height away from non-participating landowners.
The proposed amendments would go through the Huntington County Board of Zoning Appeals, he said.
Several members of the Huntington County BZA own land in the potential construction area and must temporarily step down.
Even with an amendment, if an application is filed, it must follow the rules set forward in the version of the ordinance in effect on the date of filing, Garrett said.
“If the application is made today, it’s under this ordinance,” he said.
Mussman said the commissioners still have time to examine the ordinance before application dates become an issue.
“It’s my opinion that the items that need to be submitted for a complete application couldn’t be put together very quickly,” he said.
The Board of Zoning Appeals will discuss possible amendments at its March 12 meeting.