Opponents of proposed Elm Springs wind farm appeal annexation decision

FAYETTEVILLE -- A Washington County circuit judge will decide whether to allow Elm Springs, a small town west of Springdale, to absorb the unincorporated site of a proposed wind farm.

Neighbors of the land, which sits just west of Elm Springs, have appealed County Judge Marilyn Edwards' approval of the landowners' annexation petition, saying the land doesn't meet several criteria for joining the town next door. The appeal means the question goes to Circuit Judge John Threet instead of going before the Elm Springs City Council.

At a Glance

Elm Springs Annexation Appeal

Residents near a proposed wind farm site claim it’s ineligible for annexation into Elm Springs for multiple reasons:

• Annexation petition is signed by an individual, not the company owning the land

• Land would create an enclave

• Annexation doesn’t meet any of five criteria in Arkansas Code Annotated 14-40-302(a)

• Land would be best used for agriculture

• No residents live on the land

• Land wasn’t properly described in the petition

The landowners’ attorney declined comment Wednesday.

Source: Staff report

Dragonfly Industries International executives say they hope to build dozens of turbines on about 300 acres for the state's first wind farm and supply several megawatts of power to the area. An affiliated company called Elite Energy bought the land for $2.3 million in February, according to county property records.

The proposal has stoked opposition from neighbors and Elm Springs residents who fear it could affect their health and property value.

A town can annex land by a public vote, but the process works differently when the land's owners ask for the annexation first. They petition the county judge, who then sends the question to the city council involved to decide the petition's fate.

The county judge's role wasn't to decide whether the project is a good one, but to make sure the landowners followed the rules set by state law in their annexation bid -- for example, a majority of landowners of the land wanted to annex and the land borders the town. Edwards said they met their requirements in a June 19 order.

In the appeal, almost two dozen of those neighbors argue the land is ineligible for annexation in half a dozen ways. They claim no one lives on the land and the annexation would create an "enclave," or an un-annexed island.

They also say the land doesn't meet any of five possible reasons for annexation in Arkansas since an 1891 Arkansas Supreme Court decision in the Vestal v. Little Rock case. Under that decision and subsequent state law, the land in question could reflect an adjacent town's actual growth, for example, or a town could have some public use for the land.

"It looks like these guys are amateurs, and we don't know what's going on," said Jonathon Hamby, who has rallied the project's opposition and is one of the neighbors who filed the appeal.

"Nobody's even asked them the question: Why's it so important for them to annex into the city?" Hamby said, adding he believes it's because the project could be more easily approved by Elm Springs planners than by the county. "We're just going to keep on pressing this issue until someone listens to us and asks them the right questions."

The circuit court decision could be appealed as well, first to the Arkansas Court of Appeals, then the state Supreme Court, County Attorney Steve Zega said Tuesday.

Dragonfly says its turbine design is more efficient and less problematic than the standard three-blade turbines, but many residents have been skeptical. At a town hall in April, CEO Jody Davis told about 150 residents the project would happen with or without annexation, but the company hoped it could benefit the town.

Hamby and others attended Edwards' hearing on the petition. When asked if they wanted to speak on it, they said they weren't aware they'd have the chance and weren't prepared.

The landowners have to satisfy only one of the five Vestal factors, Zega said.

"They (the opponents) may have had something that knocked down all five of the Vestal factors, but they didn't give it to Marilyn (Edwards)," he said. "I think she was legally compelled to do it."

The opponents hired lawyers Tim Hutchinson and Larry McCredy with the Reece Moore Pendergraft law firm to handle their appeal, and they've approached Tontitown officials asking them to oppose the wind farm. Tontitown also borders the Dragonfly land and is given a say in its zoning under state law.

Hutchinson referred questions to McCredy, who didn't return a message Wednesday seeking comment.

J.R. Carroll, a Fayetteville lawyer representing Dragonfly, said Wednesday he hadn't seen the appeal and couldn't comment. Jim Lefler, the company's director of corporate affairs, didn't return email and phone messages Wednesday.

At the June hearing, Carroll cast the annexation as a natural choice for Elm Springs.

"I think everyone would agree every city in Northwest Arkansas is growing," Carroll said. "If there's going to be growth by Elm Springs, it has to be west."

NW News on 08/06/2015

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