Appeals court rules against NextEra Energy in a lawsuit against Reno County over wind farm 

The state’s appellate court has upheld a finding that petitions by opponents of a large commercial wind farm in the southeast quadrant of Reno County were legally sufficient to force a unanimous County Commission vote on a permit for the proposed development.

The ruling against Pretty Prairie Wind LLC, a subsidiary that NextEra Energy created to develop the project, came more than two years after the Florida-based multinational corporation appealed a ruling by now-retired Reno County District Judge Tim Chambers.

In its 14-page opinion, the appellate court agreed with Chamber’s decision to grant judgment to the county and landowners who filed the protest petitions but for different reasons than Chambers cited.

Officials with NextEra Energy have not yet responded to an inquiry from The News on whether it intends to appeal to the Kansas Supreme Court.

The Reno County Commission, meanwhile, has since imposed a ban on wind development in zoned areas of the county, including the area involved in the suit, and created an “overlay zone” for the rest of the county, imposing development regulations.

Friday’s opinion comes more than 3 ½ years after NextEra filed its application for a conditional use permit to build an 82-turbine, 220-megawatt wind farm in southeast Haven and two years after it sued the county when its application failed.

The Reno County Planning Commission voted 4-3 in April 2019 to recommend the denial of the permit after widespread public opposition during more than 20 hours of public hearings over three evenings.

Residents petitions against wind farm

Residents in the area then circulated petitions, gathering more than 200 signatures, to force a required unanimous county commission vote to override the planning commission recommendation.

The County Commission, on the advice of a consultant and its legal counsel, found the petitions were sufficient because about 46% of landowners within 1,000 feet of proposed turbine sites signed them. The law required just 20%.

The County Commission on June 13, 2019, then voted 2-1 in favor of granting NextEra a conditional use permit. But since it was not unanimous, the permit application failed.

NextEra filed suit

NextEra filed its suit in July 2019 challenging the citizen petitions, arguing the law required that forms on which a “circulator” gathered signatures had to be notarized by a sworn notary public and, since they weren’t, they were not legally valid.

In his ruling on the issue in June 2020, Chambers found a sentence at the bottom of the form stating that the circulator attested to the validity of the signatures “under penalty of perjury” was legally sufficient, and a notary was not required.

At that point, NextEra dismissed other issues it raised in its suit to appeal Chamber’s ruling.

The appellate court on Friday affirmed Chamber’s ruling, though it found a different state law governed protest petitions in zoning cases than was cited by Chambers and NextEra Energy.

Much of Friday’s opinion related to a question of whether the appellate court had jurisdiction to even consider what statute governed the protest petitions. The court found it did.

“Pretty Prairie asserts – and the district court found – that protest petitions must comply with Kansas statutes governing election petitions, K.S.A. 25-3601 through K.S.A. 25-3608,” the ruling states. “The County argues that the protest petitions are governed solely by K.S.A. 2021 Supp. 12-757.”

“Applying these principles here, we agree with the County…,” the opinion states. “While most of the protest petitions filed in this case contained a signature and declaration for the petition circulator, those sections were not required by Kansas law.”

“Zoning protest petitions under K.S.A. 12-757… are qualitatively different from election petitions. Unlike statutes concerning elections, rezoning begins by submitting a zoning amendment to a planning commission, not through a petition process.”

“Protest petitions do not trigger public involvement in the rezoning decision – a successful petition simply increases the threshold required for the Board to pass a rezoning ordinance or resolution…

The petition-signing requirement is based on land ownership, not the ability to vote.”

The court also noted such petitions are filed with the city or county clerk, not an election officer.

“There is no question that the protest petitions here meet the requirements of K.S.A. 2021 Supp. 12-757(f)(1). Thus, the district court correctly concluded that the petitions were valid, albeit for a different reason than that court provided,” the opinion states.