Hill Country Wind Farms

Various firms investigating the economic viability of placing “wind farms” in the Hill Country (Gillespie County) prompted the formation of the Save Our Scenic Hill Country Environment alliance (for more, visit www.soshillcountry.org ). The flowing article (re-printed from the August 26th Austin American-Statesman is sure to add fuel to the debate on wind farms near Fredericksburg, Texas

Court sides with wind farm in suit by landowners
Neighbors called 400-foot turbines' 'aesthetic impact' a nuisance.
By Robert Elder
 AMERICAN-STATESMAN STAFF
 Tuesday, August 26, 2008

A state appellate court has handed a victory to the wind energy business in Texas in a closely watched "nuisance" lawsuit brought by West Texas landowners.

The 11th Court of Appeals in Eastland last week upheld a district court judgment against landowners who had sued FPL Energy LLC over the company's massive Horse Hollow wind farm in Taylor County. The jury had found that the wind turbines were not a nuisance to neighbors and rejected their claim for damages.

Horse Hollow is one of the world's largest wind-generating facilities, with about 425 turbines spread over more than 50,000 acres of land southwest of Abilene.

Before trial, the judge rejected the landowners' claims for damages based on the "aesthetic impact" of the 400-foot turbines. The jury was the first to hear a nuisance claims suit against wind farms in Texas.

The appeals court affirmation said "Texas case law recognizes few restrictions on the lawful use of property."

The ruling "is going to kill all the arguments about filing a lawsuit because you don't like the way (a turbine) looks," said Dallas lawyer Trey Cox, the lead counsel for FPL Energy, a subsidiary of Juno Beach, Fla., utility FPL Group Inc.

Disputes over the noise of turbines or their environmental impact shouldn't be affected by the ruling. Cox predicted: "That's something you can objectively fight about in court. But the issue of what's pretty and what's ugly, we can't argue about that."

Steve Thompson, the Houston lawyer who represented the Abilene-area landowners, did not return a message Monday.

The plaintiffs didn't contend that FPL's operations were illegal, but they said a legal business can be considered a nuisance if it's abnormal and out of place with its surroundings.

The 11th Court ruling, written by Justice Rick Strange, noted that several Texas courts have accepted the argument, but in cases where the nuisance had occurred from things such as flooding or odors.

The appellate ruling was the second win for wind projects this month. Earlier, U.S. District Judge Lee Yeakel of Austin said he would dismiss a suit that sought to stop further construction of two wind power projects along the Gulf Coast in Kenedy County. The projects are expected to place more than 600 turbines on 60,000 acres near Laguna Madre, south of Corpus Christi.

Yeakel has not yet issued his final order in the case.

The Coastal Habitat Alliance, an environmental group that includes the King Ranch, filed the suit, saying the turbines could kill untold numbers of migratory birds and damage the bay. The suit sought to overturn the decision by the Texas General Land Office to allow the projects to be built without environmental review or input from the public.

Affordability Continued

The Affordable Housing Task Force (Fredericksburg, TX) provided its report and recommendations to the City Council on 8/4/08. While I was unable to attend the meeting/presentation the Fredericksburg Standard provided a lengthy (hopefully accurate) report of the latest in the affordable housing soap opera. I am endeavoring to obtain a copy of the report so stay tuned for any updates/adjustments, etc. to this commentary.

Predictably, the Task Force report is loaded with consultant double-speak (big red flag!) with recommendations falling into three major categories: “Entity, Development and Communication” (huh?). To sum it up, they are recommending the following (each will be addressed by me in turn): that the City of Fredericksburg form a Community Development Corporation; that Planning and Zoning hold joint workshops to establish new language and policies and that the community needs to be well-informed of these efforts.

I suppose this is a respectable “first step” but Council and the Task Force had hopes high that their report would recommend concrete solutions not just more study/workshops and “communication”. Tentative half-measures such as addressing lot sizes were mentioned but there was a glaring lack of detail on what it is going to take from the city to solve this community-wide concern.

Note: A long-planned, Planning and Zoning approved “affordable” subdivision was put on hold buy Council recently pending the Task Force results mentioned herein and subsequent actions to be considered as a result of this report. Given its apparent contents, I’m sure the developer is mystified as to what any of this means to his efforts. Ironically, the developer/builder of this proposed affordable housing PUD is named Timeless Luxury Homes.

IMHO, forming a Community Development Corporation (CDC) as a charitable, tax exempt, non-profit 501(c)3 entity places city government square in the path of the solution rather than moving it out of the way to allow market factors to solve the problem. A city-sponsored CDC (along with all the politics and bureaucracy that implies) would, in effect, be competing with market-based solutions (e.g. a private CDC) for the race to develop “affordable housing”. What private developer in their right mind will attempt competing with a taxpayer-supported entity that controls all the rules of the game? Answer: none. By default the city and its well-intentioned CDC will become the sole source for “affordable housing” in Fredericksburg, TX. If the political/taxpayer will to pursue this course exists, I have yet to see it.

Joint workshops? Hmmm, I like many others, was under the impression that this task force would be suggesting multiple lines of attack against planning and zoning rules and regulations that impeded progress in this arena. Granted, they did touch on lot size as being a factor. Simply put, anything mandated by zoning and subdivision regulations is a significant cost to a developer. These costs are passed on to the end consumer in the form of higher lot and home prices. Mandates regarding street width, curbs, gutters, sidewalks, storm drains, landscaping, lot sizes, building setbacks, density, parking, impervious cover, etc., etc. all add to the cost of development and should all be “on the table” for discussion/revision.

Informing the community? Is there a more obvious CYA than that? The implication is that we have to inform everyone and get input from all areas lest “leadership” on the issue be off the mark or called into question. They of course failed to mention that the real estate, banking, development, etc. communities (stakeholders I believe they call us) have yet to be allowed input. We are told that is coming.

I’ve no doubt that the city leaders and the citizens of Fredericksburg, TX have their hearts in the right place and clearly see the need for “affordable housing”. What has been absent in this whole discussion (or I’ve missed it so far) has been any consistent definition of what constitutes “affordable” and any concrete evidence of a quantifiable demand for this product. A rational, risk-taking developer is unlikely to roll the dice without clarity of the rules from the city and without verifiable market evidence of a legitimate demand.