Seventh District Judge Lyle R Anderson ruled that a December 4, 2015 decision by the San Juan County Commission did not follow basic due process and is therefore invalid. The court ruling is on a narrow question of process and does not address the overall decision of the commission.
The San Juan County Commission had met to address a Conditional Use Permit (CUP) issued to the wind farm by the San Juan County Planning and Zoning Commission. The CUP was opposed by the Northern Monticello Alliance (NMA), a group of land owners who own property adjacent to the wind farm.
Commissioners initially ruled, on a 3-0 vote, that the wind farm had not met its obligation to mitigate flicker, light, and sound issues at the wind farm. The ruling sent the issue back to the Planning Commission.
However, sPower sent a letter to the Commission, arguing that it had presented two binders of evidence of its efforts to mitigate the flicker, light, and sound issues. They asked that the Commission reverse their decision within four days.
The Commission then met again and reversed their decision on a 2-1 vote, with Commissioner Phil Lyman opposing the decision.
Simply put, the judge ruled that the NMA did not have the same opportunity to argue its side of the case because the commission decision was based on the letter sent from sPower. A copy of the letter was not sent to the NMA.
Anderson writes that “procedures must still comply with basic due process in order to be valid” and explained “at minimum, this means adequate notice and an opportunity to be heard. Here the county based his decision on an ex parte communication. NMA received neither notice of the letter nor an opportunity to be heard in opposition.”
The solution to this is to ensure that the NMA is provided due process regarding the decision.
In addition to the questions about due process, the NMA also asked Judge Anderson to revoke the CUP. Anderson did not revoke the permit, ruling that “the court cannot find that the county’s decision was unsupported by substantial evidence.”
Wasatch Wind initially secured the CUP several years ago to develop the wind farm in an A1 zone of the county. In 2015, sPower purchased the project from Wasatch Wind.
The Latigo project is one of several wind farms that secured a CUP from the San Juan County Planning and Zoning Commission. It is the only project, to date, that has been completed. The 27-turbine project began operations earlier this year.