Pretty Prairie Wind LLC v. Reno Cnty.

• Citation: 62 Kan.App.2d 429,517 P.3d 135
• Decision Date: 26 August 2022
• Docket Number: 123,277
• Parties: PRETTY PRAIRIE WIND LLC, et al., Appellants, v. RENO COUNTY and Board of Reno County Commissioners, Appellees.
• Court: Court of Appeals of Kansas

62 Kan.App.2d 429
517 P.3d 135

PRETTY PRAIRIE WIND LLC, et al., Appellants,
v.
RENO COUNTY and Board of Reno County Commissioners, Appellees.

No. 123,277

Court of Appeals of Kansas.

Opinion filed August 26, 2022.

Timothy J. Sear, of Polsinelli PC, of Kansas City, Missouri, Alan Claus Anderson, of Kansas City, Missouri, and Gerald L. Green, of Gilliland Green LLC, of Hutchinson, for appellants.

S. Eric Steinle, of Martindell Swearer Shaffer Ridenour LLP, of Hutchinson, and Joseph P. O'Sullivan, Reno County Counselor, for appellees.

Patrick B. Hughes and Susan M. Locke, of Adams Jones Law Firm, P.A., of Wichita, for intervenors Lynn Thalmann, et al.

Before Schroeder, P.J., Warner and Isherwood, JJ.

Warner, J.:

62 Kan.App.2d 429

This appeal concerns the statutory requirements for petitions protesting proposed zoning changes. The current dispute began when Pretty Prairie Wind LLC sought a conditional-use

62 Kan.App.2d 430

permit from the Board of Reno County Commissioners to operate a wind farm. Several local property owners challenged Pretty Prairie's permit application by filing zoning protest petitions, triggering a heightened voting requirement to approve the permit. The Board of County Commissioners' vote failed to meet this requirement, resulting in the denial of Pretty Prairie's application.

Pretty Prairie filed suit, challenging the form of the protest petitions. The district court concluded that the protest petitions were valid under Kansas law and entered judgment for the County. After carefully reviewing the record before us and the parties' arguments, we agree with the district court's decision to grant judgment in favor of the County, albeit for different reasons. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2019, Pretty Prairie applied for a conditional-use permit to build a wind farm near Haven in Reno County. After receiving a report from county staff, the Reno County Planning and Zoning Commission held several public hearings and received public comments concerning the proposed permit. That April, the Commission recommended to the three-member Board of County Commissioners that the application be denied.

Under Kansas law, the vote needed to overcome a planning commission's recommendation depends on the community's reaction to the recommended outcome. In most instances, a board of county commissioners can overrule a planning commission's recommendation by a two-thirds majority vote. See K.S.A. 2021 Supp. 12-757(d). But when the owners of at least 20% of the land within 1,000 feet of the property at issue sign and file protest petitions within 14 days after the end of the public hearings, a three-fourths majority is needed to overrule the recommendation.

517 P.3d 137

K.S.A. 2021 Supp. 12-757(b), (f)(1) ; Reno County Zoning Regulations § 20-102 (2016).

The Board of Reno County Commissioners has three members. Practically speaking, this means that a vote of two of the three members is necessary to overcome the Reno County Planning and Zoning Commission's recommendations in most circumstances.

62 Kan.App.2d 431

But when a sufficient proportion of landowners file petitions protesting a proposed zoning action, a decision rejecting a recommendation requires the vote of all three Board members.

Reno County residents began organizing to submit protest petitions against the wind farm, holding several community events to mobilize neighboring landowners. The protest petitions provided at these events included the date, the protesting landowner's name, a description or address of the landowner's property, and the landowner's signature. The petitions also included a section for the signature and address of a "circulator," along with a declaration stating, "I declare under penalty of perjury I am a circulator of this petition, duly qualified, and personally witnessed each signature on this page."

Shortly before its June 2019 meeting, the Board determined that 114 valid petitions—from owners representing 46% of the property within the 1,000-foot boundary—had been filed, triggering the three-fourths majority requirement. Of these petitions, approximately 110 included a circulator's signature. The Board voted 2-1 to approve the permit, falling short of the required vote to override the planning commission's recommendation. As a result, the permit was denied.

Pretty Prairie filed a petition in district court challenging this outcome, raising procedural and substantive claims. From a procedural standpoint, Pretty Prairie asserted that the protest petitions were invalid because the circulators failed to comply with K.S.A. 25-3602(b)(4), a statute governing petitions submitted for elections; this statute requires a circulator to verify before a notarial officer that the circulator witnessed each person sign a petition. Pretty Prairie argued that the protest petitions were void because the circulator signatures were not notarized, so the Board's 2-1 vote was sufficient to overrule the Commission's recommendation. Turning to the substance of the Board's decision, Pretty Prairie asserted that the decision to deny the permit was unreasonable.

As the case progressed before the district court, Pretty Prairie sought partial summary judgment on its procedural claim. The County, as well as various adjacent landowners (the Intervenors) who were permitted to intervene as defendants, opposed this request.

62 Kan.App.2d 432

The district court denied Pretty Prairie's motion. Most relevant to this discussion, the court found that the notarial-affirmation requirement under K.S.A. 25-3602(b)(4) applied to zoning protest petitions, but the circulators' declaration on the protest petitions substantially complied with that statute.

Following the ruling, Pretty Prairie sought to file an interlocutory appeal, which the court denied. Pretty Prairie then dismissed its outstanding substantive claim and asked that final judgment be entered on its procedural claim. The court granted this request, and Pretty Prairie appealed. Neither the Intervenors nor the County filed a cross-appeal.

DISCUSSION

The primary point of contention in this appeal is the standard that governs petitions protesting potential zoning changes. 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 County argues that the protest petitions are governed solely by K.S.A. 2021 Supp. 12-757.

Unraveling these issues turns on the language and interplay of these various statutory provisions. Statutory interpretation is a legal question over which appellate courts' review is unlimited. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019). Our primary aim when interpreting statutes is to give effect to the legislature's intent, expressed through the statutory language it adopted. State v. Spencer Gifts , 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). We thus follow the statutes' plain language—we

517 P.3d 138

do not add or ignore statutory requirements, and we give ordinary words their ordinary meanings. 304 Kan. 755, Syl. ¶ 3, 374 P.3d 680.

When legislative intent is unclear from the...