A Reno County judge has finally scheduled a hearing in the lawsuit filed in July by NextEra Energy and some 69 landowners challenging the denial of a conditional-use permit for a proposed wind farm in the southeast quadrant of Reno County.
The hearing, set for 10:30 a.m. Sept. 30 before District Judge Tim Chambers, however, is just to determine whether 18 landowners who filed protest petitions against the Pretty Prairie Wind permit can join the lawsuit as defendants.
Attorneys for Pretty Prairie Wind LLC, meanwhile, filed a motion last week seeking partial summary judgment on the key issue in the suit.
That motion, said County Counselor Joe O’Sullivan, isn’t likely to be taken up until sometime in October, after the court decides on the intervenor question.
He believed the delay in scheduling a hearing, O’Sullivan said, was based on the attorneys’ calendars.
The corporation’s main contention in the suit is that a majority of protest petitions filed against the project – which forced a unanimous vote of the Reno County Commission to grant the permit – were not legally sufficient because they were not notarized.
The company contends that if a person is going around gathering signatures, that person, known as a circulator, must themselves sign the petition in front of a notary.
At least 116 of the 233 petitions were submitted by circulators, according to the motion, but none of those were notarized.
The county argues the law cited by NextEra applies to petitions that are circulated to force a ballot question on an issue and doesn’t apply to a land-use permit.
The company, however, cited a 1989 court of appeals opinion in a lawsuit involving Deffenbaugh Disposal Services Inc. against the city of Kansas City, that found “circulator requirements of K.S.A. 25-3602 are not limited to matters of elections and applied to protest petitions against a special-use permit application.” It also cites a 2003 Kansas Attorney General’s opinion.
O’Sullivan noted Friday that the majority of petitions submitted by opponents of the wind farm were on a form that was created by an attorney representing that group of landowners.
It used language taken directly from a state law used for petitions not explicitly requiring a notary, but which includes a “sworn declaration” by the circulator “under penalty of perjury” that they witnessed the signing.
The judge can rule on the petition for summary judgment without requiring a hearing, O’Sullivan said, or even a period of discovery, based merely on his interpretation of the law.
However he rules, though, O’Sullivan believed, it will likely be appealed to a higher court.
The county has filed its response to the initial suit, but not yet filed an answer to the new motion.