NextEra wants all protest petitions tossed
Credit: John Green | The Hutchinson News | May 22, 2019 | www.hutchnews.com ~~
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County officials have again pushed back a meeting for the Reno County Commission to take up NextEra Energy’s application for a permit for its proposed Pretty Prairie Energy Center, pending resolution of a legal issue.
The meeting is now tentatively set for 6:30 p.m. June 13 at the Atrium Hotel and Convention Center, with county staff hoping to solidify the meeting date by next week.
The legal question delaying the meeting relates to whether protest petitions against NextEra’s requested zoning permit required the signature of a notary when submitted.
If determined valid, the protest petition would force a unanimous “super majority” vote of the county commission to approve the development permit.
County staff and a planning and zoning consultant from Wichita already have determined about 100 of the 240-some individual filings included in the protest – or some 42 percent – are invalid. That’s because the petitioners did not own property within 1,000 feet of land leased for a potential turbine, said County Counselor Joe O’Sullivan.
NextEra Energy challenged the remainder of the petitions, however, claiming under state law that the person submitting protest petitions to the county clerk must include a notarized page stating they were the person who collected them, and no such notary page was with the petitions when they were filed.
In its challenge, the Florida-based developer cites KSA 25-3601 and 3602, Kansas laws that relate to the filing of protest petitions seeking to force an election on a specific question or to protest an ordinance or resolution adopted by the county commission.
“There’s a question whether those apply to a zoning protest petition,” O’Sullivan said, noting the law cited usually applies to “question submitted elections,” like when someone is applying to get liquor-by-the-drink on the ballot.
The statute that county officials outlined in advising the public about the opportunity to protest is part of separate zoning statutes. It does not refer to a notary requirement.
While the petitions involved more than 200 parcels, most were collected and submitted by just a few individuals.
O’Sullivan said a Wichita attorney previously hired by Reno County Citizens for Quality of Life, an LLC formed by residents to fight the wind farm, was advised of the NextEra challenge last Friday and given until this Friday to file its arguments with the county.
The county counselor will review the response, along with planning and zoning consultant Russ Ewy, and then offer the commission an opinion on the issue. The board will decide how to proceed from there.
Taking a vote
The question won’t be decided in district court unless one of the parties appeals after the county commission votes on NextEra’s conditional use permit application.
And then, it would only be an issue if the commission vote is split, O’Sullivan said.
If the vote is unanimous, either way, it would be a moot question, the attorney pointed out.
The petition challenge was among “a binder of legal concerns regarding the petition” that NextEra submitted to the county, County Commission Chairman Bob Bush said during Tuesday’s regular commission meeting.
O’Sullivan said most of the other issues raised by the company were specific objections to individual petitions.
“I didn’t think there were legal issues associated with those,” he said.
“It was not unexpected,” Bush said of NextEra’s objections.
However, after receiving them, it was felt the wind farm opponents should be offered an opportunity to respond. A short week due to the Memorial Day weekend added to the delay.
Officials initially set the next meeting for June 11, but the audio-visual recording company hired for previous hearings before the Reno County Planning Commission wasn’t available. So the meeting was moved to June 13 – pending verification the Atrium is available.
The commission likely will learn during its regular June 11 morning meeting whether the petition was legally sufficient.
“That’s our timeline,” Bush said. “I feel it’s as aggressive as it can be.”
“It’s important to everyone involved we get it right the first time,” said Commissioner Ron Hirst. “Once you get attorneys involved, it becomes more and more complicated. I feel the level of complication will grow as we get through the process.”
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