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Wind opponents file lawsuit

By MIKE CORN

mcorn@dailynews.net

Opponents of a proposed wind farm southwest of Hays filed a lawsuit in Ellis County District Court on Tuesday seeking to reverse the decision to issue a conditional-use permit.

The lawsuit did not, however, ask for any type of restraining order.

The case was filed by Wichita attorney Patrick Hughes on behalf of 44 plaintiffs -- a virtual who's who of residents living in the area surrounding the proposed wind farm -- against the Ellis County Commission.

The lawsuit claims the proposed project requires the use of land not included within the conditional-use permit, that it would not comply with county zoning regulations, and that the commissioners' decisions to approve the development plan and permit were unreasonable and unlawful.

On July 28, commissioners voted 2-to-1 to approve the wind farm's development plan and the conditional-use permit application. The lawsuit had been expected to be filed by Thursday at the latest.

Because no restraining order was requested, Hughes said the lawsuit will proceed much like any other civil case, in that the defendants will have 20 days -- plus an automatic 10-day extension if requested -- to respond to the lawsuit.

Hughes said there was no need for a restraining order because development of a wind farm is a multimillion dollar project and likely would not take place in a short period of time. Construction of the 100-turbine, 200-megawatt wind farm is not expected to start for at least a year.

Neither Dennis Davidson, the Russell attorney who has been representing Ellis County on the wind issues, nor Mel Sauer, the attorney representing Hays Wind, could be immediately reached for comment. It's likely Hays Wind will ask to intervene in the lawsuit.

Hughes said that while the lawsuit was filed Tuesday, he had not yet received notice that a copy of the lawsuit had been served on the county.

"Right now, the next step is to get an answer from them," Hughes said.

Once the county has filed its response, attorneys and the court will conduct a scheduling conference to determine dates of hearings and deadlines for filing any documents or motions.

The five-page lawsuit details the chronology of events that ultimately resulted in the county's decision to issue a conditional-use permit for Hays Wind.

After first being denied a permit, Hays Wind sought a waiver from the county's one-year waiting period for filing a subsequent application. Commissioners granted the waiver June 2.

"Hays Wind LLC submitted an incomplete conditional-use permit application and development plan application along with its request for a waiver," the lawsuit states.

It went on to say the permit application "placed the proposed facility on essentially the same property as the original application," but excluded land that was within 1,000 feet of any neighbor who had not signed an easement agreement.

Doing so, the lawsuit says, meant the "neighbors would not have protest rights ... with respect to the new application and so that a 2-1 county commission vote in favor of the application would result in its approval."

After the filing waiver was approved, the application then went to the Ellis County Joint Planning Commission, which ultimately voted June 25 to recommend approval of the permit to the commissioners.

Plaintiffs in the lawsuit are: Timothy O. Davis, Penny J. Davis, Rod Bittel, Pat Bittel, Anthony Eller, Deb Eller, A.J. Pfannenstiel, Linda K. Pfannenstiel, C.J. Pfannenstiel, Georganna G. Johnson, Wilfred T. Barnes, Mary C. Barnes, Sally E. Gager, Vernon F. Riedel, Jeanne M. Riedel, Keith F. Pfannenstiel, Jody Pfannenstiel, James Kramer, Luanne Kramer, Mike E. Butler, Sheryl Butler, Jane Matlock, Paul W. Faber, Jacinta Faber, Mary Meier, Linda Donlay, William T. Wierman, Agnes M. Wierman, Terence J. Wierman, Gary M. Fagan, Doug Marrs, Maren K. Moody, Mary Barnes, John Barnes, Wanda L. Pinkington, J.P. Michaud, Angela K. Grant, Clara Kramer, Robert A. Kramer, Helen M. Miles, Marion Brown, Jerry Wiedeman, Dianne Wiedeman and Louis D. Bowman, doing business as Bowman Oil. Co.