NextEra files suit against county seeking to overturn denial of its permit

NextEra Energy and some six dozen owners of land in Reno County filed suit in district court this week. The group seeks to reverse the county’s denial of a conditional-use permit for a proposed wind farm in the southeast part of the county.

The suit was electronically filed by Pretty Prairie Wind LLC, the Kansas limited liability company NextEra created to develop the project. It also lists as parties to the suit individuals, businesses or trusts that have contracted with Pretty Prairie Wind to lease land for the proposed 80-plus turbine project.

The 14-page lawsuit alleges problems with a protest petition that forced a unanimous Reno County Commission vote to approve the permit and contends there was no legal basis for denying the permit.

On April 23, after four days of public hearings, the Reno County Planning Commission on a 4-3 vote recommended denial of NextEra’s application for a conditional-use permit. By law, specific individuals were then entitled to file a protest petition within 14 days of the planning board’s vote to force a subsequent vote by the County Commission be unanimous in order to approve the application.

More than 200 people filed petitions against the project. Of those, county staff and a Wichita consultant assisting the county determined nearly half were valid, and that the valid petitions represented at least 48 percent of the land within 1,000 feet of proposed turbines, well above the 20 percent required by the law.

The County Commission on June 11 accepted the protest petition as valid. Then, on June 13, it voted 2-1 to approve NextEra’s conditional permit. Because it was not unanimous, that in effect denied NextEra’s permit.

Issues with the protest petition cited in the suit were the same as those earlier raised by NextEra in a letter to Reno County officials, prior to the commission finding the petitions valid. Its primary contention is that anyone circulating the petitions had to sign them in front of a notary, and without a notary those petitions were invalid.

“In addition,” the suit states, “many of the signatures on the Protest Petition contain illegible signatures with no printed name to verify the identity of the signatories, were signed by individuals whose names differ from the recorded property owner, are signed by an individual purportedly on behalf of a business entity or trust without any evidence of authorization, or were signed by less than all of the co-tenants or joint tenants where ownership is held in co-tenancy or joint tenancy.”

The suit challenges other petitions for “inaccurate descriptions of the property seeking to protest the application,” or that the petitioners signed them before the date of the Planning Commission vote.

NextEra argues enough petitions should be disqualified that it does not meet the 20 percent of the land threshold, and thus the County Commission’s 2-1 vote on June 13 in favor of the project was enough to override the Planning Commission.

In his presentation to the county when it considered the petition, consultant Russ Ewy advised the County Commission he was discarding 13 of the petitions because of issues with signatures, and 119 because they were not within the required distance from the project, but that still left 114 as valid.

The company also argues the county’s denial of its application “was unreasonable, invalid and unlawful in that the County has acted unreasonably, arbitrarily, and capriciously in denying (it.)”

The suit notes its proposed use for the land is specifically allowable in county zoning regulation, is compatible with existing land use — which is primarily agricultural — and is compatible with the county’s recently adopted Comprehensive Plan.

It states the development would be beneficial to the county and landowners, as indicated by landowners signing leases with NextEra.

The suit, filed by an Overland Park-based attorney, points out that “professional (county) staff recommended approval of the application with certain conditions.”

The majority of the Planning Commission and the lone member of the County Commission, Ron Hirst, who voted against it, found the development would not “promote the public health, safety and general welfare” of the community.

NextEra counters in the suit that the “relative gain to the public health, safety, and general welfare (in denying the application) does not outweigh the hardship imposed upon the plaintiff and the owners of the subject property.”

Conversely, it argued the project doesn’t adversely affect the public, but enhances it through the creation of jobs and economic activity and by “reducing carbon emissions and promoting renewable energy that benefits all residents of Reno County, the United States, and the world.”

While it previously stated it would not be using Hutchinson-manufactured Siemens Gamesa turbines for the nearby project, NextEra claims its development would benefit the company by continuing to “advance the wind energy industry in the state of Kansas.”

Besides asking the court to reverse the county’s denial, the suit seeks “its costs incurred herein, and for such other and further relief as the Court deems just and proper.”

County Counselor Joe O’Sullivan said NextEra notified him of its intent to file the suit, but the county hasn’t received a formal summons. The county will have 21 days after it receives notice to file an answer.