October 1, 2019
Kansas

Judge rules wind opponents can join NextEra suit

John Green | The Hutchinson News | Sep 30, 2019 | www.hutchnews.com

A Reno County judge on Monday ruled that a handful of property owners will be allowed to join the suit filed against the proposed Pretty Prairie Wind farm. The wind developer filed the suit in July to have those property owners’ petitions ruled invalid.

District Judge Tim Chambers also advised the parties that he would not rule on a motion for partial summary judgment in the case until the filing of a record detailing what occurred up to this point.

Attorneys with NextEra Energy and 69 landowners filed the suit in July, challenging the denial of a conditional-use permit by Reno County that would have allowed construction of a proposed 82-turbine wind farm in the southeast quadrant of the county.

The county commission actually voted 2-1 in favor of granting the permit, but a protest petition filed by opponents of the development resulted in a requirement that the commission vote had to be unanimous to override an earlier negative recommendation from the Reno County Planning Commission.

The suit was file by NextEra against the county, claiming most of the protest petitions were invalid because those collecting them did not sign them in front of a notary.

Though the suit contests the protest petitions, it didn’t involve those who filed the petitions, only the county.

Several of those landowners filed a motion to join the suit, or intervene, to defend the validity of the protest petitions.

Arguments

Wichita Attorney Patrick Hughes, representing the opposing landowners, argued no one had a greater interest in the case than the property owners who would be affected by the court’s decision.

He noted the county indicated on some issues that could be raised, that it might stand mute or not take a position. The county may not even present other concerns that landowners might otherwise argue.

“If the county and NextEra are on the same page, you don’t have everyone here,” he said. “The (petitioners) are inadequately represented.

“There’s no reason to exclude the protesters, who are in the best position and, perhaps the only party, to protect their rights.”

Overland Park attorney Timothy Sear, representing Pretty Prairie Wind LLC, contended there was no basis in law to allow the petitioners to intervene. He pointed out that while the original petition to intervene involved nine couples, now only four were proceeding – out of some 233 petitions filed.

The group did not cite any case law in its argument to intervene, Sear said, contending the county was the party required to defend its actions.

“The intervenor might think they have different theories to raise than the county, but that doesn’t give them the right to kibitz in the lawsuit,” he said.

Sear also suggested that more parties might attempt to join the suit later if Chambers granted the request, who might “try to take it over … throwing as many issues in front of the court as possible.”

“Today it’s four, but tomorrow it may be 14 and next week 40, and on and on and on,” he said.

Hutchinson attorney Eric Steinle, representing the county, took the side of the intervenors.

He agreed with Hughes that the county had specific issues to address relatives to its actions, and that might not represent all of the concerns or arguments of the impacted landowners.

Noting that since the county commission’s June 13 vote was a split decision – 2-1 in favor of the conditional use permit – depending on the conclusion of the court, the county may not choose to pursue the case further, though the intervenors might.

“It would be unfair for the protesters,” Steinle said, to not be allowed to “aggressively defend the case.”

That, Hughes added, could result in further delays if the petitioners had to pursue their own suit because the county didn’t protect the landowners’ interests.

Other notes

Chambers raised the possibility that if he found in favor of NextEra, he might have to require a revote on the CUP by the county commission, since the board’s vote was based in part on the knowledge it only needed one “no” vote to deny the permit.

Chambers said he could not act on the motion for summary judgment filed by NextEra until there was evidence introduced that he could consider “on the reasonableness of the county commission’s decision.”

“What are the facts?” the judge said. “I have no record. I need the county to submit what it did and what the facts are. I cannot proceed on the motion without it.”

Chambers said he intentionally did not follow the issue in the media as it played out, in case it came before his court.

An attorney representing the county suggested the three parties now in the case get together to draft a timeline to proceed along, including the filing of a record requested by the court.

Chambers gave them 45 days. The motion for summary judgment – and the parties’ times to file a response – was stayed until then.

URL to article:  https://www.wind-watch.org/news/2019/10/01/judge-rules-wind-opponents-can-join-nextera-suit/