A Reno County judge recently ruled on a key element in a lawsuit filed by NextEra Energy over the denial of a permit for its proposed wind farm in the southeast quadrant of Reno County, finding in favor of the county and wind farm opponents.
It was not the only issue in the suit, however, so the lawsuit continues, though the court has not set any new hearings or filing deadlines.
One of the main contentions in the suit filed last fall by Pretty Prairie Wind LLC, a subsidiary NextEra formed to build the 80-plus turbine project, was that a majority of protest petitions filed by landowners against the project weren’t legally sufficient because they weren’t notarized.
Those petitions forced a unanimous vote of the Reno County Commission in order to override an earlier negative recommendation from the Reno County Planning Commission on the permit. So, though the commission voted 2-1 in favor of issuing the conditional use permit, it was in effect denied.
The company argued in a motion seeking partial summary judgment on the notary issue that state law requires if a person is going around gathering signatures, that person, known as a circulator, must themselves sign the petition in front of a legal notary.
At least 116 of the 233 petitions seeking to force the unanimous commission vote were submitted by circulators, according to the motion, but none of them was notarized.
In his ruling from the bench on May 21, District Judge Tim Chambers agreed with the developer that state statutes under which the petition process fell were related to election petitions.
Ultimately, however, he sided with project opponents in finding there was not a requirement for a notary.
That’s because each petition contained a statement at the bottom that the person collecting the signatures was stating “under the penalty of perjury” that they witnessed each signature collected.
A separate Kansas law related to notaries, Chambers noted, states that such a statement “subscribed by the person as true under the penalty of perjury shall have the same force and effect as a sworn written declaration, verification, certificate, statement, oath or affidavit.”
“(T)he court has to adopt the plain reading of the statute, and I can’t see anything more plain than that,” Chambers said.
Chambers, citing his own research, said there are legal cases that indicate a statute that requires signing in front of a notary may not be “absolute” and “mandatory,” as long as “there is substantial compliance.”
Factors indicating a rule are mandatory are the presence of negative words, such as “in no other manner” or a penalty for non-compliance, which this statute did not contain.
The judge said he also factored in that petition circulators “were acting on the advice of counsel and, probably more importantly, they relied on the determination made by the county commission through its counselor that, in fact, that was sufficient to determine the protest petition.”
“(G)overnments work for the people, and people retain certain rights and they have a right to object to actions taken by their governments,” Chambers said. “And certainly when it affects or has some ability to harm their property in that fashion. Clearly, case law has been clear that if a protest is now allowed then any decision taken by the county commission is void.”
NextEra has 20 days from Chamber’s ruling to seek an interlocutory appeal, which is an appeal “out of time” directly to a higher court on a single issue before the full case is decided. Such filings are relatively rare.
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