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Third wind farm lawsuit filed

Opponents of the proposed Expedition Wind Farm filed a lawsuit against Marion County commissioners Aug. 14 appealing the commission’s approval of a conditional use permit for the project.

The lawsuit, filed by Peabody farmer Randy Eitzen and 72 other opponents, claims approval of the permit “was unreasonable and therefore void.”

Three plaintiffs own land in the county but reside elsewhere. Five live in the county but outside the vicinity of the proposed wind farm.

They claim property owners were not given an opportunity to be heard by the planning commission on “last-minute amendments” to the application and that proper notice was not provided to landowners whose lands were affected under previously-granted permits since the current permit would include areas contained in the old permits.

Plaintiffs also claim they had no notice or chance to be heard on last-minute noise amendments in the application.

Another contention is that a protest petition filed after the planning and zoning commission recommended commissioners approve Expedition’s application should have been ruled valid. Had the protest petition been ruled valid, a 4/5 vote of the commission would have been required to approve the permit instead of a majority vote. The June 17 vote to approve the permit was 2 to 3, with commissioners Randy Dallke and Kent Becker in favor and Dianne Novak opposed.

Voters earlier approved a five-member commission beginning in 2020. Two new commissioners will be seated in January. Candidate Amy Soyez was a petitioner in an earlier lawsuit filed May 16, but her name is not on the new petition. If opponents are successful in causing a new vote on Expedition’s application and Soyez seated the commission, a 4/5 vote to approve would be unlikely because Novak has repeatedly voiced opposition to the project.

Opponents claim a 1,000-foot buffer notification zone drawn throughout the project area was “for the sole purpose to prevent plaintiffs and other landowners from having the ability file a protest petition.”

The plaintiffs claim Dallke had a personal interest in the decision because he owns property – purchased in 2010 from the family of Rex Savage, who initially began the wind farm project before selling it to Expedition Wind – near Peabody, where Dallke lives.

“Commissioner Dallke made a self-serving change to (the resolution) that banned wind turbines within two miles of the town of Peabody, Kansas. Commissioner Dallke, not any of the residents of Peabody, asked for the two-mile ban on wind turbines,” the petition states.

The petition claims that based “on information and belief,” the commission is “currently under investigation by the Kansas Attorney General for violations of the Kansas Open Meetings Act for meetings, conversations, and/or communications with Expedition outside of Marion County Commissioners meetings.”

The petition also contends the permit shows no security bond for road maintenance; neighboring landowners receive no benefit from the project, that the earlier permits granted “contained many glaring deficiencies regarding supporting documentations … that are nonexistent or woefully out of date.”

The petition also contends Expedition has made “no definitive statement regarding size of the turbines which will directly affect the noise and setback requirements.”

Wind farm opponents filed a lawsuit May 16 against the commissioners and Expedition. No final ruling has been made in that lawsuit. The new lawsuit has been assigned to the same judge.

Opponents filed a separate lawsuit against the planning commission in July, then dismissed it without prejudice a week later.