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Tuesday, Mar 20 2012 09:00 PM

Lawsuit pits gliders vs. turbines in effort to stop mountain wind farm

BY JOHN COX Californian staff writer jcox@bakersfield.com

The plaintiff in a lawsuit awaiting trial in Kern County Superior Court aims to break new legal ground in a bid to kill a stalled wind farm project on Tehachapi Mountain.

The suit filed on behalf of privately owned Mountain Valley Airport LLC argues that glider pilots have established a public easement stretching up to 500 feet in the air above the mountain. If this claim holds up in court, it could rule out the possibility of building wind turbines there.

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The airport's Tehachapi attorney said the legal action appears to be without precedent in its strategy to claim the airspace, and that the suit could help define wind as a property right.

Several representatives of the defendants -- a group of Tehachapi Mountain landowners including the family of former state Assemblyman Phil Wyman -- declined to address the lawsuit or did not respond to requests for comment. Their legal defense contained in court filings is unspecific.

Property rights lawyers not involved with the case say the airport could face an uphill battle. They say the traditional way of establishing an easement requires demonstrating that any unauthorized use of the property amounted to some kind of nuisance. Otherwise, it could be argued that the property owners granted what is known as implied consent.

Irvine lawyer Ronald Steinbach, who has dealt with and written about airport easement law, said engineless, pollution-free gliders are hardly a nuisance.

"I mean, it's like a bunch of people flying their model airplanes," he said. "It doesn't really bother anybody."

"Sounds to me like an excuse to stop the wind farm," he added. "But it's imaginative."

Bakersfield property rights lawyer Jean Pledger noted that, depending on how the airport makes its case, it may have to show that it used the defendants' property without their permission.

The property owners could simply claim that they knew of and approved the use, Pledger suggested.

"What is interesting here is, assuming that the (property owners) knew about the gliders, did they know that the gliders were using their 'property' such that the gliders could establish an 'easement' in that airspace?" she wrote in an email. "That will likely be at least one of the questions for the jury to answer at trial."

The lawsuit could be arguing a moot point. Faced with community opposition to the wind farm proposal, developer Alta Windpower Development LLC, owned by New York-based Terra-Gen Power LLC, withdrew its county application for the project in June. In January, however, Wyman told county supervisors that he remained hopeful of bringing wind power development to the mountain. Any new proposal would place wind turbines out of sight, in deference to opponents, he said.

The location of any new wind power development in the area will likely hinge on a map being developed by county staff. This map would state where developers could build wind turbines, and where they could not.

The withdrawn development proposal called for erecting up to 137 wind turbines, each standing 410 feet high, across more than 7,100 acres. It would have generated 411 megawatts of renewable power.

Airport users, including a glider flight school, have flown across some of that property since the 1960s. As the lawsuit asserts, they use that specific area because of special geographical and meteorological qualities -- its wind, mountain waves, and thermal and ridge lift.

"If turbines went on that hill, it would shut down that glider port," said the airport's attorney, Kassandra McQuillen.

McQuillen said the lawsuit's timing is unfortunate, in that the trial is scheduled to begin in July -- likely before the county would be able to approve the wind development maps.

Even so, she said a victory in court would settle the issue as far as the airport is concerned.

"Our goal," she said, "is just to have some guarantee that there's not going to be some development out there."

Linda Parker, executive director of the Kern Wind Energy Association, said the county's wind power developers try to co-exist with neighbors and work with them collaboratively.

Parker said she was not very familiar with the lawsuit, but that she had never heard of a case like it.

"Basically," she said, "I guess we'll just have to see what the court decides."

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