A lawsuit claiming that a recently passed ordinance fails to protect Botetourt County residents from risks posed by wind turbines is based on speculation and should be dismissed, the county asserts in court papers filed this week.
Because there is no actual wind farm — or even an application to build one at this point — there is no potential harm for the court to consider, Botetourt County attorney Michael Lockaby wrote in response to a lawsuit filed last month against the county’s board of supervisors.
“For this court to have jurisdiction, there must be an actual case or controversy based upon a present, actual antagonistic assertion and denial of legal rights,” the response stated.
Filed July 23 by eight county residents, the lawsuit seeks to invalidate an ordinance passed by the county in June that establishes rules for industrial-scale, power-generating wind turbines built atop ridgelines.
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Action by the board of supervisors was prompted by interest from Apex Clean Energy, a Charlottesville company that is considering a project that would include up to 25 large turbines on North Mountain.
The lawsuit asserts that the ordinance fails to protect the plaintiffs and other members of the public from dangers posed by wind turbines. Among their concerns: low-frequency noise from the turbines and shadow flicker that can cause health problems, ice being thrown from the spinning blades during the winter and the risk of the turbines collapsing or catching of fire.
Another complaint leveled in the 20-page lawsuit is that the county failed to take into account the impact on birds and bats, which have been killed after flying into the spinning blades at other wind farm projects.
The county’s ordinance sets the maximum height of wind turbines at 550 feet — taller than the highest building in Roanoke — and limits the sounds made by them to no louder than 60 decibels when heard from the nearest property lines. Also included are setback requirements that dictate how far the turbines can stand from adjoining properties.
In all, the new ordinance identifies 37 considerations that can be taken into account before the county decides whether to grant a permit for a wind farm, Lockaby’s written response states.
At this point, he wrote, the lawsuit’s assertion that the ordinance lacks teeth is “nothing more than a difference of opinion between a taxpayer and his government.”
The county is also arguing that six of the eight plaintiffs lack standing to bring a lawsuit because they either don’t own land in Botetourt County or live too far away from the site under consideration by Apex, which is about five miles northeast of Eagle Rock.
Tammy Belinsky, a Floyd County attorney who filed the lawsuit, said she plans to contest the county’s motion to dismiss the case.
“We are confident that the case will not be dismissed based on standing, and that the claims have merit,” she said.
Although Apex has not sought a special exception permit for the wind farm, which the ordinance would require, it has applied for a building permit for up to three data-gathering towers to test the wind on North Mountain before beginning construction.
The company has said that if its plans go forward, the turbines could be spinning by 2017 or 2018.