Members of the Linn County Planing and Zoning Commission discuss how to recommend prohibiting solar utility development to the Linn County Commission. (Screenshot/Linn County Kansas Live Streaming)
Journal staff report
MOUND CITY – Despite the advice and recommendation of Linn County Attorney Burton Harding to not make a decision on prohibition of solar energy conversion systems (SECS) at their meeting on Tuesday, Aug. 13, the members of the Linn County Planning and Zoning Commission voted to adopt a recommendation to prohibit commercial and utility scale SECS in Linn County.
Harding offered that advice to the planning commission because Polsinelli Law Firm, which represents Clearway Energy Group, referred to serious violations of the open meeting law that may have been committed by county commissioners and also the planning commission.
A letter from the law firm also pointed to ex parte communications with members of a group of solar opponents.
The letter stated that the planning commission and county commission “must cease and desist from enacting further changes to the Linn County Planning and Zoning Regulations until such time as a full investigation is conducted into the impact that such illegal acts may have had in the process. Any further action pursued by the County has the potential to materially increase damages suffered by Clearway and the Project, not to mention enact lasting harm to the trust and faith that Linn County citizens put in their County government.”
The planning board decided to ignore the information and recommendations and continued with making findings and a vote on recommending the prohibition of SECS in Linn County.
The commission met without two of its members who had argued against prohibiting solar development. The Linn County Commission voted to remove Charlene Sims from the planning commission on Monday, Aug. 12, and Rich Morrell resigned his seat on the day of the meeting.
At Tuesday's meeting, planning commission Chair Paul Porter had explained to them that there were three options the board could follow:
• Proceed according to plan and discuss findings followed by a potential vote if the commission can reach point where these findings are at a place that commission members think they are solid enough to pass;
• A middle of the road plan would be to take Harding’s advice, continue on with the discussion, drive the findings home. Have the discussion and do everything but the vote. The vote would likely be postponed to the next meeting; or
• The other end of the spectrum would be that the commission would be done for the evening and its members would take the whole thing up at a later date.
Porter said that his personal opinion was to go middle of the road and work on the findings. He said that if they continued to go on with the findings and a vote tonight, the recommendation needed to be a tight and tidy document to pass on to the commissioners.
Planning Commission member Elizabeth Staton agreed that the vote should be postponed but the commission should go ahead and work on the findings.
Planning Commission member Daniel Earnest said that he did not appreciate the scare tactics that are trying to be imposed on the commission based on unfounded truths or unfounded allegations that have no truth behind them.
“ I see no risk in this. That being said, we aren’t making a final decision. We're making a recommendation to the county commissioners,” said Earnest. “I’d just as soon knock this out and get it done. Let the county commissioners decide if they want to deal with the legal side and make a decision or postpone. Let’s do our job, put it back on them, let them make the decision on how they want to proceed legally.”
Commission member Joab Ory agreed and said that he agreed with Daniel that they were just kicking the can down the road.
“It’s not our final decision,” said Planning Commission member Morgan Brown. “We just have to put it together.”
“We are an advisory board, that is what we are doing and it comes down to our elected commissioners,” said Ory.
“They can take our advice or they can’t,” said Brown.
Porter said he was playing devil’s advocate. He pointed out that the last time the planning board did this, James Kaup was still the commission's consultant. It was written by a lawyer as a lawyer and the commissioners basically signed on the dotted line.
“I just put that out there because we’re not lawyers,” he said. “We can only do the best we can. We’re volunteers but the findings are where the rubber meets the road as far as our decision is concerned. I’m not saying we have got to hit it perfect every time. I’m just throwing out discussion material so that you know some of the historical context.”
Commission member David Fisher said, “You got a point there. But that’s not going to change. Next month we’re going to be sitting here trying to come up with findings. Like you said we’ve got to do what we can do.
“Unelected officials make a recommendation to the county commissioners. This letter is full of unfounded situations. It’s a political situation we shouldn’t be in the middle of. We shouldn’t be intimidated by their hired gun trying to tell us what to do in our county. We’ve done everything, we haven’t done anything wrong. We’ve got a job to do and must do that job without showing favoritism to anyone. I think if you stall this you are showing favoritism. . You’re keeping the door open.”
“You are also showing that we are gonna be intimidated by a situation like this. By some hired gun coming in,” said Fisher.
Earnest said the thought law firm was going to send another letter next month and just keep on pushing it down the road.
“I think if we give them that presumption that they are going to see this from their office: ‘Hey, they’ve backed this up 30 days. We now have a crack in the foundation,’” said Ory. “I’m just concerned that if they see that opportunity, what’s their next tactic going to be?”
“I definitely see your point, but our legal counsel that we have now has asked us to wait, so that gives me pause,” said Staton. “I do see your points.”
Commission member Ed Anderson said “We’ve been at this way too long. We’ve heard the residents speak and I think there was a pretty good majority, the way they spoke. I saw very few that were in favor of it.
“And if I look back, I think most of (the people wanting to lease land to solar developers) were landowners living out of town. And they aren’t living here or anything like that. They’re paying taxes, which I appreciate, but you know I think we’ve heard the citizens talk and that, and I think we need to get this done and get it sent to the commissioners and be done with it."
“Let’s do what’s right,” Fisher said. “Let the chips fall where they may. We’re not lawyers, let’s do the best we can putting these findings together. Get it in the county commissioners’ hands.”
“I can see Polsinelli looking at this tomorrow and they go, ‘Sweet, we just bought ourselves 30 more days. What can we do with our money and our resources in 30 days that Linn County can’t?’” Ory said, “And I’m not an attorney, and I’m not here to speak for an attorney, but I can just see their little minds spinning tomorrow that they were just awarded 30 days by us by their scare tactic.”
Fisher moved that the planning board go forward with determining findings and making a recommendation, Earnest seconded and the motion was unanimously approved.
Porter passed out a draft of some notes he had worked out. No one else had any notes for the members.
Staton said that she would like to see wildlife protection emphasized. She expressed concerned that a large area like 8,000 acres would be a large chunk of area that wildlife could not access depending on fencing. She also said that the planning board had been told that it would have a detrimental effect to the waterfowl.
Fisher discussed the economic impact of the project on heritage tourism and outdoor recreation.
Earnest asked was it fair to say that it is not in the best interest of Linn County, which is an agricultural-based economy, to give up crop-producing land to foreign-owned companies that are not going to be using it for crop agricultural reasons.
Porter once again said he was going to play devil’s advocate just for the sake of discussion. Does making the statement about being foreign-owned have substantive bearing on the impact of the statement that the commission wants to make?
“It absolutely does for me,” said Earnest.
“It does to me because we don’t have an American company coming in here wanting to do this,” said Ory.
“It does to me too, but I think we’ve got to stick to the comprehensive plan and point it back to the comprehensive plan,” said Fisher. “I know what you’re saying.”
“I guess in just trying to look at this from an outside prospective,” Porter said. “Does the presence of the solar farm itself bear enough weight in the argument that you want to make. My concern is just the categorizing of certain groups may be an unnecessary point to make. You know this should be tight and minimalistic. Tight, complete, but minimalistic. Does that make sense?”
“I understand completely what you are saying,” said Earnest. “I think what it really boils down to is trying to be politically correct, and I think the actual voice of America has been stifled by political correctness.
“And if more people would just say what they really mean, we wouldn’t be in the situation that we are in . . . I’m tired of political shut down for being an American and supporting America. I get what you are saying completely.”
“We don’t have to write this down,” said Brown.
Porter worked on getting a consensus about Earnest’s statement about farm land.
Fisher said, “I’m okay with it. If it was all red, white and blue, all American, I still don’t think we would recommend it.”
Earnest said that even if you removed the wording of foreign owned that it covers what he meant that it goes against the comprehensive plan to remove mass amounts of crop producing acreage from the economy and convert it to non-crop producing land.
“I’m going on record saying foreign companies,” said Earnest.
“I support you,” said Ory.
Earnest pointed out that in the comprehensive plan it said promoting agricultural uses and preserving the rural character of the county. He also said that it would be a detriment to the beautification along highway corridors.
Staton mention historic sites and flood areas.
Earnest said that he felt like what they had talked about was much more extensive than what was in the prohibition for wind power.
After nearly an hour, Porter read back the findings that had been discussed and they were approved with the members agreeing that non-substantive changes could be made by Porter and county Planning and Zoning Director Darin Wilson.
The motion to recommend the prohibition of SECS to the commissioners was made by David Fisher, seconded by Daniel Earnest and approved by all planning board members.
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