photo by: Adobe Stock

Aerial drone view of solar panels at a solar energy generation farm at Sunset in South Wales, UK

Story updated at 11:55 a.m. May 14, 2024

A fellow government entity and more than 20 businesses and individuals have filed a lawsuit against Douglas County challenging its approval of a massive solar energy project.

Grant Township — the rough equivalent of a city council for the rural area north of North Lawrence — is a plaintiff in a lawsuit that contends Douglas County commissioners violated the county’s comprehensive plan when they approved a conditional use permit for the Kansas Sky Energy Center project, which would place approximately 8 million square feet of solar panels on about 600 acres of farmland north of North Lawrence.

The lawsuit, which was filed Monday afternoon by Lawrence-based attorneys Bill Skepnek and Brennan Fagan and the Overland Park-based firm Forbes Law Group, specifically contends the county was required to approve an amendment to its comprehensive plan if it desired to approve the Kansas Sky Energy Center project. The county never made such an amendment. The lawsuit in Douglas County District Court, also contends the county erred by not requiring a stormwater plan to be developed prior to the approval of the conditional use permit.

A Douglas County spokeswoman told the Journal-World that the county had no comment on the lawsuit.

The project — which largely would surround the grain elevators at the point on U.S. Highways 24/59 commonly known as Midland Junction — has drawn both large numbers of opponents and supporters.

Supporters have said the project would help Douglas County do its part in battling climate change by producing large amounts of clean, renewable energy. When completed, the project would produce enough electricity to power about 30,000 homes, the developers have said.

Opponents largely have said they don’t oppose the idea of solar energy, but believe the proposed site of the plan will inappropriately occupy prime farmland and will worsen stormwater flooding issues both for nearby rural residents and for large parts of North Lawrence, which is downstream of the project site.

“In fact, the project violates the comprehensive plan’s binding requirements to preserve Douglas County’s most fertile agricultural land,” the attorneys wrote in the lawsuit filing.

The lawsuit also takes exception to how the county has handled stormwater issues related to the project. After an approximately 10-hour public meeting and hearing on April 13, the County Commission unanimously approved a conditional use permit for the project. But the county also said there was still more action to take before the project could move forward. Among other issues, the county said a stormwater plan would need to be presented to commissioners for approval before construction could begin on the solar power plant.

The developer of the project, Savion — which is working to develop the project ultimately for the Kansas and Missouri utility Evergy — had presented a stormwater study to the county as part of its application. However, the county engineer called the study “a very rough draft,” and rejected many of the key assumptions attached to it. Specifically, Savion contended the solar project would actually reduce the amount of stormwater coming off of the 600-acre site because many of the tilled farm fields would be planted in permanent vegetation that would do a better job of absorbing and slowing stormwater. As a result, Savion did not propose any stormwater detention basins to collect rain water coming off the solar panels.

While County Engineer Chad Voigt said the idea of new vegetation improving the stormwater runoff had validity, he said Savion was overestimating the type of vegetation it would be able to grow and maintain on the site, and was failing to account for how much the construction project would compact the soil of the site, which would negate many of the benefits of the vegetation.

Voigt told Savion in early February that “stormwater storage will be necessary throughout the project.” But no plans showing where those stormwater basins would be located, how large they would be and to what standards they would be built were ever presented to county commissioners when they voted to approve the conditional use permit on April 13.

The lawsuit argues that a complete stormwater plan was a “necessary document” for the county to be in a position to approve the conditional use permit, and as a result, the county acted “unreasonably, arbitrarily, and capriciously” by approving the permit without the completed stormwater plan.

The stormwater issues with the project have particularly worried some residents of North Lawrence. Almost all excess stormwater from the solar site would flow through North Lawrence, and would be required to go through a system of piping and pumps that a 2005 study found was already at or near capacity. That report, the North Lawrence Drainage Study, said tens of millions of dollars in stormwater infrastructure improvements should be built before any large development north of North Lawrence should be allowed to proceed. Those improvements haven’t been made.

An investigation by the Journal-World in April revealed that the county never asked the City of Lawrence for analysis of how the solar project could cause additional stress to the city’s stormwater infrastructure. That fact led the chair of the Lawrence-Douglas County Planning Commission to say he was considering proposing a new planning amendment that would require more cross-government communication on such issues for future projects.

Other issues related to stormwater have come to light in recent weeks. Another investigation by the Journal-World earlier this month reported that the county in 2020 approved special stormwater regulations for the entire Maple Grove Watershed, of which the proposed solar site is a part. The county approved the regulations due to the watershed’s high risk of flooding. However, the Journal-World found those regulations mistakenly were never published in the online county code that the public and others access when determining whether a project meets all applicable regulations.

The county, however, contends the solar project is not required to meet those 2020 approved regulations. The legal mechanism that exempts the project from those regulations, however, has not been clearly identified by the county.

The lawsuit is asking Douglas County District Court to issue an order requiring the County Commission to reject the conditional use permit for the solar project. The lawsuit also is seeking to recover attorney’s fees and other relief deemed suitable by the court.

Douglas County is listed as the sole defendant in the case. Plaintiffs in the case are Grant Township; Pines International Inc.; North Lawrence Improvement Association; former County Commissioner Nancy Thellman; Scott T. Thellman Sr.; Juniper Hill Farms LLC; Scott T. Thellman Jr.; Joshua Peters; Amber Ross; Ironstone Events LLC; Bonnye Little-Hadl; Paulette Schwerdt; Dorance Little; Stacey Wendland; Nancy Yonnally; SOS Kaw Valley LLC; Ted Boyle; Marc Wilborn; Susan Wilborn; Lazy Susan Farms LLC; Lisa Harris; and Rick Frydman.