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Lawsuit against El Paso County over wind farm dismissed

September 3, 2015 Updated: September 3, 2015 at 11:06 am
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Next-Era Energy Resources resumes construction of 126 wind turbines in Calhan, Colorado, on Tuesday, July 21, 2015. According to project director David Gil, the $400 million project comes with a maximum generating capacity of 250 megawatts of power, enough to power more than 62,000 homes a year. Photo Logan Riely, The Gazette

El Paso County attorneys and lawyers for disgruntled residents reached an agreement this week to end a months' long lawsuit over a controversial wind farm, the county announced on Wednesday.

On Sept. 1, an El Paso County district court approved the mutual decision to dismiss the lawsuit with prejudice, a move that protects the El Paso County commissioners from being sued over their decision to approve the large wind farm project near Calhan. Tuesday's court ruling ended months of legal back-and-forth between the county officials and bitter eastern county residents, many of whom vehemently oppose the project out of fear of compromised property values and health effects.

As part of the agreement, the El Paso County Property Rights Coalition will not be required to pay the county's legal fees in addition to its own, said Amy Folsom, the county attorney. Folsom couldn't discuss the details of how the settlement was reached, but she said that the outcome was what the commissioners and the county had hoped for.

"This is an excellent outcome," Folsom said on Wednesday. "Our job was to defend the litigation and uphold the decision by the board, and we did that."

Meanwhile, construction on NextEra Energy Resources Inc.'s wind farm project is nearly completed, with 120 of 145 turbines standing over the plains outside of Calhan. The company has also made progress installing 301 utility poles for a 29 mile powerline, the subject of the lawsuit.

The commissioners initially approved the wind farm in December 2013, but after NextEra acquired the project from another company, he company requested that plans be amended to add an above-ground powerline. The powerline, like each wind turbine, rests across private property. On Feb. 5, after a marathon hearing with hours of public testimony, the commissioners approved the changes to the project. But, a month later, a group of area residents - terrified of adverse impacts to their views, roads and personal health - sued the commissioners in hopes of getting the powerline put back under the ground.

Despite the lawsuit, residents remained divided over the project. Many long-time ranchers in the area supported the wind farm, and told the commissioners that they were happy to see some economic vitality come back to the region. But other residents fought bitterly against the entire wind farm project, and still others opposed only the above-ground powerline. Members of the property rights coalition paid their own legal fees, held regular meetings with updates and even created anti-wind farm t-shirts to sell to members.

Above all, the coalition sought to prove that the county abused its power when approving the wind farm, and alleged that fear of a lawsuit from NextEra had driven the commissioners to approve the project. The day after the amended wind farm project was given the go-ahead, in an interview with Gazette News Partner KKTV, Commissioner Amy Lathen inadvertently gave the homeowners the fodder they were looking for when she pointed out that the commissioners could be sued by NextEra for not approving changes to the project.

Over the months, the property rights coalition tried to get the court to halt construction on the wind farm, but that motion was denied on the grounds that it would cost NextEra millions of dollars. Eventually, NextEra was dropped from the lawsuit.

But in the end, after months of failed motions filed by both sides, the county prevailed - the wind farm will be finished according to NextEra's plan. Lawyers for the coalition could not be reached for comment on Wednesday, nor could Laura Wilson, one of the members of the property rights coalition.

The allegations that the commissioners abused power in approving the wind farm have been dismissed, and the door has been closed to lawsuits against the commissioners' decision to approve the wind farm, Folsom said.

"It certainly is my legal opinion that nothing more can be alleged against the commissioners," said Folsom.

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