Re: Appeal No. 98,487: Roger Zimmerman et al. and A.B. Hudson and Larry French v. Board of County Commissioners of Wabaunsee County, KS
TOPEKA—The Supreme Court today remanded a lawsuit challenging a Wabaunsee County ban on all commercial wind farms back to the district court for additional evidence and further proceedings.
Friday's remand of Roger Zimmerman et al. and A.B. Hudson and Larry French, Intervenors, v. the Board of Wabaunsee County Commissioners, marks the second time the high court has considered whether the county's ban of commercial wind farms violates state or federal law. The Court previously rejected a number of legal challenges to the district court decision approving the ban but later requested additional briefing and arguments by the parties on some other challenges. Today the Court sent the case back for district court determination of two of them. These are the wind energy proponents' claim under the so-called dormant Commerce Clause of the U.S. Constitution and their related burden-based claim under 42 U.S.C. Section 1983 for violation of their federal rights.
The lawsuit was brought by Wabaunsee County landowners who have entered into written contracts for the development of commercial wind farms on their properties. The landowners were joined by Hudson and French, who are not landowners but through various contracts are owners of purported wind rights concerning other properties in the county.
In a unanimous decision authored for the Court by Chief Justice Lawton R. Nuss, the justices today ruled that the district court did not err in disposing of the claim brought under the "Takings Clause" of the U.S. Constitution, the related taking-based claim under 42 U.S.C. Section 1983 for violation of their federal rights, and the claim for inverse condemnation. The Court also affirmed the district court's dismissal of one part of the dormant Commerce Clause claim alleging that the county's ban facially discriminated against interstate commerce by treating in-state and out-of-state economic interests differently.
The high court additionally held, however, the district court had not sufficiently considered another part of the Commerce Clause claim. That is, even if the ban on commercial wind farms was not facially discriminatory against out-of-state economic interests, it nevertheless burdened interstate commerce to an extent that was clearly excessive when weighed against the local benefits relied on by the county in imposing the ban. Among the ban's benefits expressed by the county was the maintenance of "the rural character of the county with respect to its landscape, open space, scenery, peace, tranquility, and solitude."
The Chief Justice wrote in today's decision that no evidence relating to the potential burden on interstate commerce compared to those local benefits has been presented.
"All of the Board's arguments converge on a single point, however: that we should decide the balancing as a matter of law, when we only have the Board's arguments to consider. No fact-based arguments have been developed for the [commercial wind energy proponents]. For example, this Court cannot know how much electricity would be generated from Wabaunsee County wind and eventually kept out of the interstate power grid if there were no Board prohibition against [commercial wind farms]," he wrote. "This type of information would be relevant" to the analysis.
The Court concluded that the case should be remanded for further proceedings and findings of facts and conclusions of law based on today's ruling. As Chief Justice Nuss wrote, "After development of a proper factual record, this Court will be in a better position to review the district court's factual and legal conclusions, if asked."