Eminent Domain – Nebraska Legislative Bill 155

February 21, 2019. Eminent domain. Grant County News 134(30): 1, 6.

A stalwart Nebraska legislator had a bunch of concerned and supportive sandhillers in his office on February 7th. It was time for a public hearing associated with legislative action to remove the use of eminent domain by public entities to benefit private companies.

The advocate was Sen. Tom Brewer of the 43rd legislative district. More than a dozen sandhillers came driving for hours on a frigid winter day – leaving their ranch – so their voice could be heard.

Before dawn at Valentine upon one particular departure, the temperature was sub-zero. Add in the extent of wind chill and the extreme polar cold was obvious. Our group represented one of several travelers across snow swept land so we could speak to the future of the sandhills.

We went to speak at a public hearing scheduled for the Natural Resources Committee at the Nebraska capitol in Lincoln. Sen. Brewer’s request to the fine senators of this committee was to strike a single sentence from legal statutes “to eliminate provisions relating to eminent domain” as indicated in a state law.

The words are: “The exercise of eminent domain to provide needed transmission lines and related facilities for a privately developed renewable energy generation is a public use.”

The legislation was introduced by Sen. Brewer, as he stated: “Public entities using the power of government against their neighbors so they can make money.”

“It is wrong,” Brewer said. There was then a public hearing. People spoke and the state senators listened and asked fine questions.

Proponents for approval of the LB 155 spoke first, obvious in their opposition to allow a public entity to act for the benefit of private landowners. There were ca. 15 people that presented personal testimony in support. Their words were indicative and convey what sandhills residents have realized and how they want to continue the essential cattle land legacy and other special values.

“Our legacy runs really deep,” said Wayne Eatinger, a fifth generation rancher in southeast Cherry county.

Barbara Welch was so very personable in regard to making sure that landmarks continue to be special places. Her analogy was so poignant that Sen. Hughes, chairman of the committee asked her to share a key tenet that she has adhered to since her days of high school. It was the result of a bunch of mice in a box so many few years ago. She brought many smiles to those present.

Dan Welch then spoke to the heritage of his ranch unit south of Thedford. The r-project would traverse the couple’s ranch property and create a health threat and diminish the value of the rangeland which has been scientifically studied.

“Take away our property rights and you take away our dignity,” Mr. Welch said. ”NPPD has been using eminent domain as a big stick over our heads for four years.”

Mr. Welch is an outspoken advocate for private property rights and this was obvious during his more than five minute testimony on Thursday.

Barb and Dan Welch presented a late December letter that arrived in their mail-box. It was an indication from NPPD that they would use eminent domain and all of its legal conundrums to condemn Welch ranchland to construct an industrial powerline across his range for heritage cattle.

“If you do not truly own your property, you are property,” said Brett Steffen of Thedford. The proposed r-project would traverse his property south of Thedford.

Sam Sampson, of Lincoln, conveyed his personal advocacy again wind turbines based upon his appreciation of a haven for hunters and outdoor enthusiasts at Brewster. “We need to protect some of us from the tyranny of others,” he said while wearing his best suit to speak his heart-felt words to the legislators.

Dean Smith from Antelope county – a newly elected county commissioner – was supportive as he referred to the nearly 300 industrial wind turbines in the county, with more being considered. His comments indicated the negative impacts during turbine project construction.

A significant presentation was a map graphic of Cherry county that indicates the extent of land-owners opposed to wind turbines. This document of record indicated the situation to each member of the Natural Resources Committee. The extent of opposition as obvious with the color red. The presentation provided an opportunity to convey other details associated with industrial wind turbines and necessary powerlines, based upon the currently known situation in Cherry county.

Some minutes beyond the five minutes allotted was provided to speak to what is being done within Cherry county. There were questions regarding the current county commissioners. Industrial wind turbines could not be placed on lands enrolled within the for-wind land owners because their surrounding neighbors do not want industrial wind turbines on their property. This is probably the case with industrial transmission lines. There were words said in regard to the request by Wayne Eatinger to ban industrial wind turbines within the county. It was also an opportunity to discuss the importance of state-level legislation as well as actions being done by the Bureau of Educational Lands and Funds.

A detail oriented cost-analysis evaluation was provided by Douglas P. Nelson, from Wayne. The economics for establishing a wind turbine project meant a loss due to the reality of costs.

“Take care of residents first,” said Amy Ballagh, a ranch-wife from the eastern hills and a long-time opponent to the r-project. There should be no eminent domain for private gain, she said.

Dave Hutchison, operator of a bison ranch near Rose, conveyed a common theme that the r-project would threaten whooping cranes and diminish the value of visitors to the region. He provided handouts with details.

Other names associated with comments included Mike Young, Marjorie Manning Warren and Ann Manning-Warren.

The opponents to this bill wore suits and represented some group, and were paid representatives of some groups with an obvious agenda, including the Advance Power Alliance, the Center for Rural Affairs and the Nebraska Farmers Union. They talked extensively, yet when asked a particular question the answers were lacking. Supposed economic development was a primary reason to not change the current legislation.

There was no utility company or industrial wind turbine developer present at the hearing.

Sen. Brewer ended the public hearing with his passionate comments. His concern for the sandhills and its people was blatantly obvious as he has actively been working to continue appreciated values. His staff worked with the landowner map to enhance it in relation to the proposed r-project corridor.

Sen. Brewer has selected this legislative action to be his priority bill, as he and his staff, including legislative aide Tony Baker continue to strongly work for residents of the 43rd district.

“What gives developer the right to impact neighbors,” he said. There is “smoke and mirrors by big wind.”

The efforts of many meant significant words were given to support Senator Brewer’s request to revise state legislation.

This day of action started in the dark during a realized 4o upon departure a few minutes after 6 a.m. at Valentine. Cold was everywhere during the day hours during the travel time when ranch employees stayed at the ranch to do chores and take care of the stock.

Finally after a long drive and getting back to the home place the temperature – including an excessively abhorrent wind chill – was at least -8^o upon returning to Cherry county and the heart city so many hours later during one day.

Application for CUP to Replace a US Cellular Communications Tower near Valentine

Comments submitted at a public hearing held by the Cherry County Commissioners in response to an application for a Conditional Use Permit to replace a US Cellular wireless tower north of Valentine; May 29, 2018. Copies of my prepared comments were provided to each commissioner, the county clerk and the newly elected commissioner who will take office in January. Some friends were also shown the text before and after its presentation.

 

Applicant Comments

Shawn Kellis, the representative for the US Cellular applicant, once again started the public hearing. He started his comments by at least referring to the street address of the project, which is apparently on Jackson Road. The need for the replacement tower was the acquisition of Western Wireless, so local service was now nearly entirely “maxed out.” Kellis indicated that the use of a monopole tower would reduce the tower footprint to 75 by 100 feet, in comparison to the five acres needed by the current tower with its guy-wires. The applicant representative indicated that the lesser footprint for the tower would allow land to be returned to a grassland condition, though no actual details were given. It was not indicated if the overall area included the tower equipment building and fencing.

Commissioner Van Winkle stressed the necessity to colocate county emergency equipment, as had been required for all recent wireless tower projects. Details for this were no apparent in the application and further details had to be found so that a statement of understanding would be included in any CUP approval.

The construction of a new tower and removal of the old tower would be one continuous process, Kellis said, with weather a obvious variable. No timeline details were given in the CUP application.

Ducey Comments

During the first of the morning, the zoning administrator was asked in any supplemental information had been provided for this CUP application. Her response was no. The actual words spoken adhere to these primary points but at times additional verbiage was used to emphasize a point.

A public hearing held [May 1] by the Planning Board, they failed to suitably several items listed under section 6.12 in the zoning regulations. Their failure is indicative that their approval was based on incorrect action. The zoning board should be held accountable for this failure and all of them should be removed from the board except for Michael MacLeod.

It is the responsibility of county commissioners to appoint members to the Planning and Zoning Board so it is their responsibility to ensure that eight of the members [should] be removed immediately and others appointed that will be accountable to the residents of Cherry county and [deal with] regulations as they have volunteered to do.

Public Notice

There are obvious problems with the public notice issued for CUP 002/18. They included:

1) This CUP application is not authorized under anything, it is regulated by; only the county commissioners can authorize anything.

2) The CUP application is regulated by Section 10 as well as section 612 of the zoning regulations, though only section 10 was mentioned.

3) This is not a tower update, it is a tower replacement. An update refers to changes to a current tower and the way the public notice reads, it seemingly states that a current tower will be modified to a 280’ self-supporting tower. This is not the case, as a new tower will be constructed.

4) The location of the proposed tower was not indicated by a legal description [while at least the applicant did this time provide an address necessary for emergency services.]

Section 612 Radio, Television and Wireless Communication Towers

"Missing from the CUP applicant and material provided to the zoning administrator are these items as specifically referred to in the Cherry County zoning regulations. None of this material has been available for public review, neither.

Section 612.01 Intent

“Telecommunication facilities, towers and antennas in the County, to protect residential areas and land uses from potential adverse impact due to the installation of towers and antennas through special design, siting, and camouflaging, to promote and encourage shared use/collocation of towers and other antenna support structures rather than the construction of additional single use towers, to avoid potential damage to property caused by towers, telecommunications facilities and antennas. … Also to ensure such structures are soundly and carefully designed, constructed, modified, maintained, repaired and removed when no longer used or are determined to be structurally unsound and to ensure that towers and antennas are compatible with surrounding land uses.”

"There is no mention in the CUP application on how camouflaging will be used to screen the tower property tract, notably landscaping such as planting trees to mask the fence, building and base of the tower. [Commissioner Storer had said previously in association with a wireless tower placement near Arabia that the commissioners could not tell the applicant what to do, but this clause indicates they can.]

"How has the applicant indicated that a cellular tower is compatible with “surrounding land uses” which includes, residential acreages and agricultural-related uses? There is also Government Canyon, which is a [nearby] state of Nebraska wildlife management area established and maintained for many years for a wide variety of outdoor recreation pursuits. The proposed tower is an industrial use and does not conform to any of these land uses and their associated values.

Section 612.03

“2. No proposed tower shall be located within five miles of any existing tower, without approval of the Cherry county Board of Commissioners.”

How can this criteria be suitably evaluated if the necessary information is not provided with the applicant’s request?

“4. ... Upon completion of construction of a tower and prior to the commencement of use, an engineer’s certification that the tower is structurally sound and in conformance with all of the aforementioned applicable regulatory standards shall be filed with the Zoning Administrator.”

There was no item found in the application on how the applicant will comply with this regulation, nor the timeframe when it will be completed? [The applicant representative indiated that engineering drawings fulfilled this requirement.]

Section 612.04

“1. ... Applicants shall include the owner of the tract of land and all persons having an ownership interest in the proposed tower. The application shall be executed by all applicants.”

These details were not found in the applicant’s request packet. And note that the zoning regulations states “all persons” having an ownership interest, not just the company business name. “All persons” indicates everyone that has any ownership stake in the US Cellular. This would perhaps include users of the companies’ cellular service? This application was not “executed” by all applicants, but instead by an “agent” company for the owner of the proposed tower. [Not a single owner associated with US Cellular was indicated by the project application.]

“2. The legal description and address of the tract of land on which the tower is to be located.”

There is no apparent proper road address included with the application that is a requirement for emergency response crews. Also, there is only a partial, and insufficient legal description; indicating the north one-half of a section is not detailed enough for a facility as small as the communications tower tract which is just relatively a short bunch of feet in extent. The quarter section should be specifically indicated, and even more details as appropriate.

“3. An affidavit attesting to the fact that the applicant has made diligent but unsuccessful effort to obtain permission to install or collocate the applicant’s telecommunication facilities on a tower or useable antenna support or written technical evidence from an engineer that the applicant’s telecommunications facilities cannot be installed or collocated on another tower or useable antenna support structure.”

This affidavit was not provided in the material provided to the zoning office, as it was not found among the application material available for review at the zoning administrator office on the morning of 26 April. Any cost to conduct this evaluation and prepare this affidavit should be paid for by the CUP applicant, and should be done by an independent engineer, not a company employee, nor a hired agent submitting the application, and not an employee of a subsidiary company of the applicant. This affidavit needs to represent an independent and non-biased perspective.

“5. Designation of an appropriate space for Cherry County’s operational and emergency services communication equipment to be provided at no cost to the County by the applicant.”

How has the applicant indicated that this requirement will be met?

Section 612.06

“4. Towers must meet the following minimum separation requirements from other towers:

“A. Monopole tower structures shall be separated from all other towers, whether monopole, self-supporting lattice, or guyed by a minimum of 750 feet.

“B. Self-supporting lattice or guyed towers shall be separated from all other self-supporting lattice or guyed towers by a minimum of 1,500 feet.”

Building a new monopole tower within less than 100 feet of another tower does not conform to these zoning regulations. Any excuse that one tower will replace another means this regulation will temporarily not be in compliance [i.e., when will the old tower be removed?]. The regulations are obvious ... remove the first tower and then build the new tower to comply with this zoning requirement.

The applicant reconsidered thie item and provided further details on when the previous tower would be removed.”

No one else spoke in opposition to the tower. No one spoke in favor of the tower.

Further Discussion

Commissioner Jim Van Winkle expressed his ongoing intent to have colocation of services on common towers and was important to him and for which he has had no success.

My response, despite an attempt by the chair to say the public hearing was closed so further comments could not be spoken, my voice continued: Where is the affidavit in the CUP application that indicates this was considered? No written details were given by any public official.

The former interim zoning administrator, Gary Weaver, then said that adjacent landowners were in favor of the tower, based upon zoning meeting testimony. My instant response was that there were no adjacent landowners that spoke in favor of the tower at that meeting. Weaver’s response was that no one said anything in opposition.

It was warm in the meeting room, with a single open window that provided a slight wind and an open door into the hallway where county court participants were actively talking, and loudly heard.

Due to time constraints, the commissioners seemed to agree to a time limit of 60 days for the old tower to be removed, once construction of the new tower was complete. Since documents had to be revised, there was a delay in the final vote.

It was obvious that approval would occur. The resolution for approval was not only already completed and ready for the commissioner’s signature, but the applicants representative was heard saying that the new tower had already been ordered.

The transition of the towers was expected to be finished by the end of this summer.

"It was the consensus of the Board to table formal action on the CUP application to the June 12, 2018 meeting," according to the meeting minutes.

Cherry County Planning Board Violates Open Meetings Act

(Copyright 2017 James E. Ducey. All rights reserved) Also issued in the Grant County News.

The Cherry County Planning and Zoning Board violated the Open Meetings Act during their morning meeting on July 21st at the commissioner’s room at Valentine.

The three items which were violations are indicated in Section 84-1412 of the Act.
The first and most egregious violation was of subsection 1, which states: “…the public has the right to attend and the right to speak at meetings of public bodies …”

There was no comment period item on the agenda and there was no opportunity given to allow public comments by attendees.

This is especially problematic because Gary Swanson stated at the previous meeting of the board in early July that public comment would not be allowed at their next meeting. Despite my objections at that time that this would violate the Open Meetings Act and with a strident request to the board that this objection be entered into the public record, this statement was not corrected, nor was any subsequent action taken by board chair Jim Buer. These two board members and everyone on the board was told that to not allow public comments would be a violation of the Open Meetings Act.
Buer stated I should talk to Eric Scott, the county attorney. Following a meeting with the attorney there was a better understanding on how to deal with any potential violations.

A subsection 4 of the Act states: “Any member of a public body who knowingly violates or conspires to violate or who attends or remains at a meeting knowing that the public body is in violation of any provision of the Open Meetings Act shall be guilty of a Class IV misdemeanor for a first offense and a Class III misdemeanor for a second or subsequent offense.”

Therefore, each member of the board present on July 21st knowingly violated the Open Meetings Act, especially since each of them had been present at the meeting earlier in the month and heard the notice that to not allow public comment would be a violation. This means there has been a legal offense by eight members of the board, including messrs. Billings, Buer, Ericksen, Lee, Mathis, Pabst, Swanson and Wheeler.

Another pertinent subsection states that “Public bodies shall make available at the meeting or the instate location for a telephone conference call or videoconference, for examination and copying by members of the public, at least one copy of all reproducible written material to be discussed at the open meeting.”

There was no public copy available in the meeting room of a) the meeting agenda, and b) the minutes, so there were two distinct, additional violations. Photocopies of both items were however given to members of the board by the county zoning administrator.

Just before adjournment of the meeting – with an insistence to speak – a formal, verbal objection was made with a request that it be entered into the public record. This was personally done to comply with an annotation to Sec. 84-1412, which states: “To preserve an objection that a public body failed to make documents available at a public meeting as required by subsection (8) of this section, a person who attends a public meeting must not only object to the violation, but must make that objection to the public body or a member of the public body.”

This clause was read in its entirety to ensure that the board members and public present understood the complaint. The objection was told to the eight members of the board that were present, as well to the more than ten members of the community present. The entire meeting was videotaped by an attendee so there is an obvious record.

Because of these violations, there is an opportunity to file a civil law suit as Section 84-1414, subsection 1 allows recourse: “Any motion, resolution, rule, regulation, ordinance, or formal action of a body made or taken in violation of the Open Meetings Act shall be declared void by the district court if the suit is commenced within one hundred twenty days of the meeting of the public body at which the alleged violation occurred.” This language is reinforced in subsection 3.

Subsection 2 states that the “… county attorney of the county in which the public body ordinarily meets shall enforce the Open Meetings Act.” This would be Mr. Scott in Cherry county.

It also needs to be known that despite multiple and repeated requests by some meeting attendees for a sign-in sheet, both the planning and zoning board and county commissioners continue to disregard this means of getting into the official record the names of people that have taken the time to be involved in the public discourse. The excuse given is that this is a courtesy not a legal requirement. It is a request which elected public officials apparently prefer to ignore. At multiple meetings, an attendee has personally gotten together a sign-in sheet and spread it around so that public involvement would be documented.

Ranchers Oppose R-Project Through Sandhills

Article copyright 2017 James E. Ducey. All rights reserved. This article may not be reissued in any print or online publication without written permission.

Opposition to the proposed R-project was very evident at a meeting where public comments were presented on a draft environmental impact statement for this industrial transmission line that is proposed to be built through the sand hills region.

Many attended and a fewer number spoke. Most of the speakers were associated with the ranch community. It was evident that the majority of the ranch country people that attended do not want this powerline built across a unique landscape. For some, the indicated route would traverse their property. And they do not accept the imposition of something unwanted on range land they have carefully managed to conserve grassland resources that include cattle forage, native vegetation, wildbirds and other natural features.

The meeting at the Thedford fair grounds building was hosted by staff of the Nebraska field office of the U.S. Fish and Wildlife Service (FWS), with Eliza Hines their primary spokesperson. Biologist Robert Harms was also present.

The three documents being considered comprise about 1500 pages. An initial speaker asked why the documents associated with this public review were not made available in Thomas and Blaine counties, and that it also needs to be readily available at Valentine.

There was a limit of three-minutes imposed on speakers, to which one rancher responded: “We didn’t drive 30 miles for three minutes” in which to speak. Others drove much larger distances. Because of the need for the court reporter to properly record the dialogue, speakers were required to speak into a microphone at the front of the crowd.

Barb Welch, a ranchwife at the Brush Creek Ranch near Brownlee, was the first speaker during the public comment period. She said the cumulative impact statement was incomplete and thus invalid, and also shared some words from a letter from the American Bird Conservancy which is opposed to the powerline. Dan Welch was the third speaker. The couple have worked for decades to establish their ranch property, which has a unit south of Thedford, across which Nebraska Public Power District (NPPD) proposes to place the powerline through rangeland that has a “high conservation value” as recognized by a study by Nebraska flora expert Kay Kottas, and which was financed by the ranch couple. Mr. Welch also indicated how NPPD has trespassed on his land.

Plastic markers indicating tower locations were left behind. NPPD has no legal authority to place these markers, according to research, so they are nothing but trash.

It was indicated by one speaker that NPPD has changed the route from the expressed “final” route indicated in documents, based upon a personal observation. Also, the utility company cannot build any powerline on property where they do not have a legally binding agreement on many segments of the proposed corridor. “How can an environmental review be done in regards to a hypothetical corridor,” was asked. Later in the meeting, biologist Harms indicated that following an email he had received, a request had been made about two weeks prior to NPPD asking for details denoting any route changes. There had been no response received as of the night of the meeting.

Voices heard at the meeting were strong and prominent. Names are not given here in complete respect to them. Those sorts of details will eventually be available in the public transcript of this meeting as well as those at Burwell and Sutherland, since a transcriber was present and kept a record.

The “sandhills are a national treasure ... very special and unique attention needs to be given” to continue these values, according to a rancher where the industrial powerline would bisect their range.

“There is no ecosystem similar to the sandhills, anywhere in this nation” said a Brownlee area, multi-generation rancher.

A neighbor with a heritage dating to the first years of ranching in the Cherry county sand hills said that “it would be a shame to put a transmission line through pristine hills.”

Each speaker received a round of applause after they had conveyed their comments. Continuing with comments heard:

“Visual and cultural impacts will be devastating to one of Nebraska’s most pristine areas” was spoken by a landowner that appreciates the several majestic Trumpeter Swan that spend the winter along the Dismal River and where Bald Eagle also appreciate the land that provides a seasonal haven.

Steve Moreland drove from Merriman to orate that the FWS “should just say no.” NPPD should “move along and quit wasting our time,” he said. Ranchman Moreland has part of a great legacy for a sandhills ranch family and his comments were indicative as he asked “Why do people want to ruin the hills for future generations.” His view that no incidental permit should be granted was completely agreed with by others, and the crowd as indicated by the applause of thanks for his spoken words.

A ranchwife from the east Thedford area does not accept that NPPD wants to ruin their ranch place for future generations, including her children.
Someone living nearby, spoke about how the proposed route for the transmission line has been altered at least two times. An additional impact would occur because of access roads that might be detrimental because they might provide means for trespassing.

In this same vicinity, another landowner expressed that on a portion of their ranch, about 1263 acres, NPPD proposes to build eight access roads which would include gates to provide the company access at times they would select.

This is “a total assault on their little place on the ranch east of Thedford,” she said. “NPPD can’t take away from what we have now.”
There was also a comment made about erosion associated with current power poles of the transmission line grid already present in the area and that regular power outages occur. “NPPD can’t take care of what they have now,” she said.

Especially significant was that after the moderator had gone through his numbers associated with people that indicated their intent to comment – and with additional time available – some people added to their three minute comment period. Others walked strongly to the microphone so they could share their individual views at this public forum.

The sandhills are a “different and special world that needs protection,” said a speaker representing more than a century of ranch legacy, not only in Thomas county but also in the great ranch county of Cherry county north of Hyannis. Details were given for nesting Bald Eagle in close proximity of the proposed powerline route.

A question was raised as why there has been no consideration of soil features. Details indicated convey that there is a great variance in soils so towers placed at various spots will result in barren land. At least two speakers indicated that character of the Dismal River sand hills should be a special concern.

Another speaker, that has personally taken the time to look at sites where there are powerline towers, has realized that the ground vegetation has not regrown during their multi-year observations.

A key item expressed was how the construction and placement of powerline towers might affect the local groundwater aquifer? This indicated concern especially pertains to southern Holt county where wet meadows and land wetlands obvious on the landscape indicate the presence of surface- and ground-water features.

During the meeting, questions were asked. Both Harms and Hines cordially provided answers, especially in regards to why the endangered American Burying Beetle and Whooping Crane are of particular concern.

An obvious theme by speakers was that the electronic documents were difficult to read. There had been problems with online access. Also obvious was the expense to print documents comprising about 1500 pages, with one attendee stating that it costs ten cents per page for black-and-white copies, and to get a color copy was 49 cents per page.

Concerns were expressed about how the construction of the R-Project could result in further degradation of the sandhills landscape as wind turbine facilities or solar-power development is expected to follow once a regional distribution powerline becomes available to transport energy to elsewhere.

Landowners in the area have already received letters from companies promoting industrial solar power facilities, or observed scoping activity along Highway 83.

The meeting on June 13th was at the Thedford fair grounds. Agency representative Hines gave a short presentation on key items regarding the project and the public review process before the comment period of the two-hour meeting. Several handouts were provided.

There were 68 people that signed in, including attendees from Thedford, Brownlee area, Brewster, Valentine, Kilgore and Merriman as well as an owner of local land from Red Oak, Iowa. Representatives from NPPD were present but did not give any remarks, and did not indicate their presence until a member of the crowd insisted that they identify themselves.

Comments on the project documents will be accepted by FWS until July 11, 2017. There have been from 30-40 requests to extend this comment period by at least 30 days, Hines said at the meeting. Several people that spoke also asked for an extension, as it is currently a busy time in ranch country.

A final decision on the incidental take permit for the burying beetle is tentatively scheduled for early November, 2017.

Meeting Postponement Inhibits Civic Involvement in Cherry County

An error in a published, public legal notice for a conditional use permit was apparently a basis for the postponement of the February 7th meeting of the Cherry County Planning and Zoning Board at Valentine.

At the January 31st meeting of the Cherry County Commissioners, it was indicated by public comment that the legal description given in the public notice in the newspaper of record – and as also sent to adjacent landowners – was erroneous. It stated: “section 20, T34N R29S” instead of the accurate T34N R29W. There was agreement that there is no such place, based upon accepted means of identifying land parcels.

After some discussion, the commissioners agreed – based up people in attendance as well as a prominent attorney – that the procedure to follow would be to open the scheduled public hearing at the zoning meeting, and then close the hearing for the CUP 01-17 application, and for it to be considered at a later meeting, following the publication of a corrected legal description via a public notice. The county attorney had a similar point of view.

The result. The meeting was postponed for some unapparent reason.

What a mistake this was as there were other items on the meeting agenda that had been properly placed by personal request. There were two items indicated under old business as item a: 1) deicing turbine blades, and 2) Wetlands (zoning and general plan). Dean Smith was also an invited guest that was going to speak on land values in regards to wind turbines. An ongoing item that would have been dealt with was to “review progress on wind study & commissioner’s request.”

The people that had properly requested that these items were on the agenda, were stifled from speaking in a timely manner and being involved in a civic manner for items which should have been addressed at the 7th meeting. Since when do items of concern to county residents be cancelled, seemingly because of a CUP request – which is not entirely compliant - by a corporate interest. The public hearing for this CUP was just one item on the agenda.

A request will be made for the “record” of how and why the meeting was postponed. For example, what discussions occurred, and by whom, prior to the decision for the postponement? This was a decision made by people representing Cherry county and is therefore public information.
This is another example – as well as several others previously – how mistakes are mistakes are being made that cause unnecessary travel, result in inaction, cause frustration, as well as other issues by county residents that expend their personal time and money to be involved with county government action or inaction.

It is obvious that the procedure to reschedule was deficient.

There had been a change in the meeting date placed on the front door of the Cherry county administrative center, apparently on February 3rd, according to a county official.
This is wholly inadequate. How many people drove in from homes many miles distant to check the front door about a significant change in a previously scheduled public meeting? There had been nothing heard on the radio. There was nothing in the local newspaper, but to learn from that source would require a subscription or purchase.

The six people present for the meeting had driven a distance of either 38 miles, 45 miles, 65 miles and 25 miles, and even walked two miles in cold weather to be at the meeting room at Valentine.
There is an indication that a phone call was made to one of the people, but they had been traveling, so the phone message received was known too late to change travel plans that included hurried travel of hundreds of miles.  Should an email be sent to another person with indicated items on the agenda, as they cannot afford a phone? During a discussion at the Valentine sale barn, a county landowner said they had heard that the days’ meeting was cancelled. This ranch wife then called the wife of a member of the zoning board to confirm that this was the case.

The meeting should have occurred as scheduled so that other important items on the agenda would have been dealt with!

There was enough concern/frustration about this situation that a small contingent of concerned citizens walked southward along Main Street to meet with Eric Scott, county attorney. He graciously took time to listen and respond to key topics of interest. All of the seats within the office of attorney Scott were appropriately occupied during the evening hour.

There are also other items of concern in regards to the planning meeting agenda. As given on the official Cherry county website, the date of the meeting was indicated as February 6th, though the meeting was to occur on the 7th, the previously defined Tuesday afternoon meeting day. Also, there was no “public comment” period agenda item as had been indicated at the January 3rd meeting would henceforth be a regular agenda item.

Ironic is that a newly issued public notice for a public hearing on CUP 01-17 – as issued in the February 8th newspaper of record, the legal description given is still not completely accurate; “Section 20, T34N R29” does not meet any required designation as required for any land parcel, and would be found to be inadequate in regards to any land transaction. The CUP application may be accurate, but the public notice is not. As least the revised notice had been revised to remove inconsistencies about the ability for members of the public to speak, as indicated at the most recent county commissioner meeting.

Public Comment on Proposed Kilgore Turbine Project

Comments on BSH Kilgore L.L.C. Request for Conditional Use Permit

Read before zoning board at public hearing

Valentine courthouse; May 23, 2016

The following are items of concern in reference to both permit planning and zoning actions regarding the permit request– both of which this board are required to consider.

1) Wetlands

Only the U.S. Army Corps of Engineers can be a legal decision on the regulation and jurisdiction of wetlands; the CUP is limited only to what was gathered by Olsson Associates, without any Corps review or acceptance of findings.

2) Endangered Species Act - U.S. Fish and Wildlife Service

There should be a letter available from FWS in regards to the status of threatened and endangered species, including the American Burying Beetle (as seen on the project site) nor on potential impact on the Whooping Crane; this is a public document nearly always done in association with large scale project

3) Migratory Bird Treaty Act

In comparison to a review prepared by FWS for a single wireless tower at Crookston, this CUP application does not address: a) need to avoid work activity between February 1 to July 15 that would avoid impacts to nests, eggs or young. FWS generally recommends no removal or impact to vegetation during this period. If construction should occur, the agency recommends that a "qualified biologist" conduct a pre-construction risk assessment. If applicable conditions apply, the FWS requests:

• a copy of any survey for migratory birds;
  
• written description of specific work activities that will take place; and
  
• written description of any avoidance measures than can be implemented to avoid the take of migratory birds.
  

The project developer is also responsible for any take of migratory birds through action of the turbines. Fines can be assessed by the federal government for the death of any migratory species protected through this act. Civil lawsuits can also be filed.

4) Structure Lighting

There is no mention of the type of lighting that will occur at substation buildings (needs to be either down-lighting or motion-detecting, according to FWS).

5) Bald and Golden Eagle Act

A federal permit is required for incidental take of any eagles. Whether or not a permit will be required is not clear, according to FWS? However, "the take of an eagle without a permit is a violation of the Bald and Golden Eagle Protection Act as well as the Migratory Bird Treaty Act, and could result in prosecution," according to a FWS official. ... "Should the project pose a great enough level of risk of taking eagles, as identified in the processes contained in the Wind Energy Guidelines and Eagle Conservation Plan Guidance, we may recommend that the project be modified to reduce the risk to eagles or not be built at that location."

6) Nebraska Game and Parks – Threatened and Endangered Species

What review has been done to meet state review requirements (i.e., American Burying Beetle, Western Prairie Fringed Orchard, Whooping Crane).

7) National Historic Preservation Act

Needed is a required legal determination on potential occurrence of cultural resources as prepared by qualified archeologist and to be in compliance with Section 108 regulations.

8) Land Ownership Memorandum

Exhibit B of the CUP application indicates that a copy of the relevant memorandum of agreement will be on file. The Rothleutner Family Limited Partnership is listed with the legal description of affected property, yet there is no agreement document on public file as of 9 a.m., May 23rd. The application is therefore conveying erroneous information.

Summary

Each of these reviews would be associated with public agencies. Any communications – including letters, emails, documents, etc. – are information that must be made available through any Freedom of Information Act request(s). Public information is not proprietary, and may not – according to standard law decrees - be withheld from public availability.

The U.S. Fish and Wildlife Service has not responded to a FOIA request for documents made more than two weeks ago, indicating the FWS is complicit in the failure to provide public documents.

Building Setback Addendum

There is no known scientific basis for having a 1000 foot setback as indicated within the permit application, except that the figure was commonly used many years ago and then apparently copied for use by others. Vestas has been quoted to say: "Do not stay within a radius of 400 meters (1,300 feet) from an operating turbine unless it is necessary." In 2014, Ohio set the distance at 1125 feet from the tip of the turbine blade. In 2014, Newport, North Carolina established a setback distance of 5000 feet. Some places that require a setback distance of 2,500 feet or more are now increasingly common.

The most modern figures, including figures derived from scientific comparisons and studies indicate that those proposed for the BSH-Kilgore project are insufficient.

Some minor typographic errors have been corrected from the submitted comments.