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Judge dismisses lawsuit to block wind farm plans

Staff writer

A district judge has dismissed with prejudice a lawsuit seeking to block development of a wind farm in Marion County.

The lawsuit, originally filed May 16, was against wind farm developer Expedition Wind, the board of county commissioners, and the county clerk.

A dismissal with prejudice means the plaintiffs cannot bring another lawsuit based on the same claims.

Patrick Pelstring, manager of Expedition Wind, said he and the more than 100 landowner families are pleased with the ruling.

“The court confirmed that the Doyle conditional use permits issued for this wind project are valid and have not expired,” he said. “The attempt by the plaintiffs in this lawsuit to impose conditions on the project that do not exist in the conditional use permits or zoning regulations was frivolous and the court has rejected their claims, dismissing the lawsuit entirely.”

Pelstring said the company believes the lawsuit was a stalling tactic that had no merit from the start.

In a memorandum ruling issued Friday by judge Steven Hornbaker, he wrote that the time for an appeal of amendments of planning and zoning regulations for 2016 ended in January 2017. He said individual notice to affected property owners was not required.

The county had published a notice of public hearing on its proposed amendments, which Hornbaker said was all it was required to do because the amendments were general revisions to regulations.

Hornbaker also said that Expedition wind farm developers were not required to submit a power purchase agreement to commissioners within a set time frame, as opponents contended, only to submit one before any building permits are granted.

Hornbaker ruled that wind farm opponents’ contention of a Kansas Open Records Act violation was not viable.

“The theory that plaintiffs were somehow denied access to public records because they did not want to make a records request using the county’s standard Kansas open records act request form is not actionable,” Hornbaker said.

Opponents had requested the records under a Freedom of Information Act, which “applies only to federal and not state agencies,” he wrote.

Nevertheless, the county treated opponents’ request as a Kansas open records request, he wrote.

“In the single instance plaintiffs requested records, they timely received the same,” Hornbaker wrote.

In July, wind farm opponents filed a lawsuit against Marion County Planning Commission over approving a conditional use permit, and then dismissed the case a week later.

Opponents filed a third lawsuit two weeks ago, this one against county commissioners. It appeals commissioners’ July 8 approval of the most recent conditional use permit for the wind farm project.

“The new lawsuit filed against the county is more of the same improper and unsupportable claims by the same people trying to interfere with the project, and Expedition Wind will continue to vigorously pursue its project,” Pelstring said. “These delays are expensive and divisive for everyone, especially county taxpayers.

“It’s time to move forward with the project and given the clear decision by the court, we would encourage the plaintiffs to cease any and all future actions. It’s time to accept that the county’s planning and zoning process is sound, and that it provides for effective decision-making by the county’s elected officials. Rather than continuing to pull apart, let’s start working together to build a stronger, more economically viable Marion County.”

Randy Eitzen, lead plaintiff in the lawsuit, did not respond to a request for comment.

Last modified Aug. 29, 2019

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