The Kansas Supreme Court has, for the second time, remanded a lawsuit challenging a Wabaunsee County ban on commercial wind farms back to district court for additional evidence and proceedings. Zimmerman V. the Board of Wabaunsee County Commissioner was brought by Wabaunsee County landowners who have entered into contracts for the development of commercial wind farms on their properties. The Court had previously rejected a number of legal challenges to the district court decision approving the ban, but later requested additional information by the parties on some of the other challenges. Today, the Court sent the case back to district court for determination on two of these challenges: the wind energy proponents’ claim under the dormant Commerce Clause of the U.S. Constitution and their burden based claim under 42 U.S.C. Section 1983 for the violation of federal rights.
The Court ruled today that the district court did not err in disposing of the claims brought under the “Takings Clause” of the Constitution, the takings based claim under 42 U.S.C. Section 1983 and the claim for inverse condemnation. The Court also upheld the district court’s dismissal of one part of the Commerce Clause. The Court wrote that there have been no fact based arguments for the commercial wind energy proponents. In order to balance as a matter of law, it would be helpful to have information stating how much electricity would be generated from Wabaunsee County wind, and eventually kept out of the interstate power grid if there were no Board prohibition against commercial wind farms.