Fifteen Marion County landowners are continuing their fight against Expedition Wind, by asking the court not to grant a motion to dismiss the civil action lawsuit filed in mid-May.
The lawsuit, according to the legal document filed July 26, stated that it’s too early to dismiss because the expected findings, which will come from discovery, have yet to be entered before the Eighth Judicial District in Marion County.
The plaintiffs include landowners Randy Eitzen, Marlene Eitzen, Cheryl Marsh, Tom Britain, Staci Janzen, Lorrie and Nick Peter, Amy Stutzman, Virginia Skinner, Eddie Coaver, Michelle and Brandon Butts, Robert Sellers, Jeffery Soyez and Charles Loewen.
They are represented by two Overland Park attorneys, Robert Harken of Harken Law Firm LLC and Robert Titus of Titus Law Firm LLC.
The defendants named in the suit are Expedition Wind, based in Wayzata, Minn., the Marion County Board of Commissioners and the Marion County Clerk. They are represented by Jeffery Jordan of Foulston Siefkin LLP of Wichita.
According to the information contained in the lawsuit, Expedition Wind and the other defendants, have treated the plaintiffs’ motions to dismiss as motions for summary judgment (without a full trial) by attaching numerous documents outside the scope of the plaintiffs’ verified first amended complaint.
Accused of “cherry picking” evidence, the plaintiffs would like the court to consider facts as to why it shouldn’t consider the motion to dismiss.
Within the response to the defendants’ motion, the plaintiffs, through their attorneys, allege they have valid claims based on Article 31, which on Oct. 27, 2011, was a stand-alone document dealing with wind farm regulations.
The concern raised by the plaintiffs regarding Article 31, stated in the document, was that about five years later that article was deleted, and without proper notification given to the residents within the impacted area.
Another concern, alleged in the plaintiffs’ case, was that under Article 31, Expedition Wind could not meet the requirements imposed on the project, and if the intent was to delete the article, the plaintiffs and others impacted should have been notified.
By ruling on the defendants motion to dismiss, the plaintiffs’ attorney stated that full discovery would reveal evidence favorable to Eitzen and others.
But, according to the defendants’ attorney, Article 31 was deleted in 2012, which involved adopting a resolution that didn’t state the specific amendments.
The plaintiffs are asking the court to lay aside the motion to dismiss because it has jurisdiction to hear their claim about the deletion of Article 31, in addition to other certain regulations that should be void and invalid after not providing written notice to landowners.
The plaintiffs, citing Kansas court decisions on the subject, stated that because the defendants stopped them from arguing, the matter is time-barred.
It was stated that Article 31 could have modifications but instead was completely deleted.
In addition, the plaintiffs’, through their attorneys, alleged that Expedition Wind’s predecessors couldn’t pursue the project because it couldn’t meet the conditions in the resolutions authorizing the Doyle conditional use permits.
Instead, and according to the court document, it relied on the BOCC to make the deletions to the zoning regulations for the purpose of pushing the project through, and affecting the plaintiffs’ land.
One part of the language within Article 31 had to do with requiring a power purchase agreement or PPA.
Another part of the plaintiffs’ claim was, according to the lawsuit, whether the defendants’ violated their due process rights when failing to provide written notice of the deletions of Article 31 and failing to comply with the resolutions.
The plaintiffs also allege that the Doyle CUPs expired and are no longer valid because none obtained a PPA.
The court document further alleges that the plaintiffs have a valid claim for a temporary restraining order or TRO, and they also have a valid claim for violation of the Kansas Open Records Act based on the county’s request form.
Historically, the original wind farm project to the south was initially started by Rex and Carol Savage of Florence and SunWind, owned by Joe Craft.
The assets and previous companies were purchased by Expedition Wind and Pat Pelstring, president of the company, said that In August 2018, the county’s planning and zoning department presented two separate conditional use permit (CUP) applications for temporary meteorological towers, known as MET towers, for Expedition Wind.
Pelstring said Expedition Wind carried over all of the Doyle leases and the signing of new leases, along with added substantial footprint to the original wind plant.
The original Doyle CUP dates back almost nine years when the BOCC approved resolutions for a conditional use of a wind energy system affecting Marion County property owners northwest of Florence, west of Union Road, south of 130th, East of Old Mill and north of 100th. It was referred to as the Doyle 1 Conditional Use Permit.
The other Doyle CUPs include:
Doyle 2 CUP with property owners, northwest of Florence lying west of Sunflower, south of 130th, east of Pawnee and north of 90th.
Doyle 3 CUP property owners northwest of Florence, lying west of Sunflower, South of 130th, east of Pawnee and north of 90th.
Doyle 4 CUP for a wind energy system south of U.S. Highway 50 in the “A” agricultural zone district with the wind energy wind overlay district.
In each of those Doyles’, language contained within the resolutions stated that all conditions must be met as required for approval with Article 14-103 for the development plan, Article 31-108 through 31-111 for placing turbines and must honor all conditions for Doyle 1, 2 and 3, according to information presented.
A hearing is expected to take place at 1:30 p.m. today, Aug. 7, at the Marion County Courthouse in the courtroom of the Eighth Judicial District.
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