Can Jefferson County be Sued For Restricting Solar Energy?

By Gordon HopkinsIndustrial solar regulations were the primary topic during a meeting of Jefferson County Planning and Zoning Committee. In particular, some members of the commission are concerned about the county getting sued once new regulations are set.A six-month moratorium on new Commercial Solar Energy Conversion Systems applications instituted earlier this year by Jefferson County Commissioners to for the purpose of reviewing and revising regulations governing solar farms in the county. To that end, the county hired, Marvin Planning Consultants, to update the regulations. Marvin Planning, headquartered in David City, is updating the county’s Comprehensive Plan. The current Comprehensive Plan was completed in 2001 and was last updated for a 10-year planning period, from 2013 to 2023. P&Z committee members were provided with regulations from a number of other Nebraska counties for comparison. John C. Shepard AICP, Senior Community Planner for Marvin Planning Consultants, was on hand at the meeting. He noted that Gage County has the most restrictive solar regulations. He did not recommend following their example, “We have several counties that have gone more restrictive. One of those that you’ve gotten extensive information on is Gage County. We do not recommend their approach. Our attorney does not recommend their approach until somebody sues them and sorts it out.Shepard added, “But again, if you want to do that, just warning, you’re going to have to support it better than they supported theirs if you want it to hold up in court.”“What he’s saying is, the ones that Gage county came up with, they don’t feel, their attorneys don’t feel they’re justifiable in any way,” said Randy Welsch. “They’re just saying, we don’t know until they get sued, but if they do get sued, they don’t think they’ll win.”“That’s just their opinion,” said Kevin Banahan, another member of the committee. Welsch also pointed out, “The other problem we have, whatever we pass here, before it ever gets to the commissioners, before it ever gets voted on, it’s got to be approved by our county attorney.”Joseph Casson is Jefferson County Attorney. Welsch suggested Casson would be unlikely to approve any regulations that run a significant risk of being challenged in court.“That’s a challenge in itself,” said Welsch. “I’m just putting it out there that is a challenge, because he’s not willing to take on very much risk at all, very little to none.”

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