SD Supreme Courtroom Upholds Approval of Wind Vitality Farm Constructing Allow

This publish was authored by Matthew Loescher, Esq.

Topped Ridge Wind II, LLC utilized to the South Dakota Public Utilities Fee (“PUC”) searching for permission to assemble a big wind vitality farm in northeast South Dakota. A number of people from Grant and Codington Counties who have been affected by the potential wind farm intervened to oppose Topped Ridge’s utility. The PUC performed a contested case listening to and thereafter issued a written determination approving the allow. The intervenors sought overview within the circuit court docket. The court docket affirmed the PUC’s determination and two of the intervenors appealed.

On enchantment, the Intervenors first argued that Topped Ridge failed to satisfy its burden in establishing that the Mission would adjust to relevant legal guidelines and guidelines as a result of Topped Ridge performed sound modeling based mostly on a zoning ordinance that was amended after Topped Ridge obtained a CUP. The document mirrored that whereas the PUC was not concerned in granting CUPs or drafting the ordinances round which the CUPs are approved, it nonetheless thought-about this argument through the contested case listening to and decided that Crown Ridge was already in compliance with the relevant legal guidelines and guidelines in Grant County on the time the allow utility was submitted. Moreover, Topped Ridge complied with ARSD 20:10:22:23 by offering a forecast of the influence that the development, operation, and upkeep of the Mission would have on strong waste administration services. As such, the court docket held that the PUC didn’t err when it decided Topped Ridge met its burden of proof to adjust to all relevant legal guidelines and guidelines.

The Intervenors subsequent contended that failing to observe the unique Grant County ordinance requiring sound measurements beneath fifty decibels at accent constructions “runs instantly afoul” of SDCL 49-41B-22(3). Right here, unrebutted testimony and sound examine established that the Mission additionally complied with the fifty-decibel restrict even at unoccupied accent constructions. Accordingly, it was not clear error for the PUC to find out that adopting the noise ranges set out within the amended Grant County ordinance posed no hazard to the well being, security, or welfare of the inhabitants residing close to the Mission.

As a ultimate matter, the court docket famous the textual content of the regulation didn’t particularly require an air high quality examine, however merely said that the applicant should present proof that the power will adjust to air high quality laws. The PUC’s willpower that Topped Ridge has accomplished so was not clearly inaccurate, because the PUC adopted the relevant statutory directives in granting the development allow to Topped Ridge and appropriately decided that Topped Ridge glad its burden of proof below SDCL 49-41B-22.

Within the Matter of Administrative Attraction Garry Ehlebracht, 2022 WL 3097464 (SD 8/3/2022)