On split 2-1vote commission agrees to $16.5M settlement on solar transmission lines lawsuit
By Charlene Sims, Journal staff
MOUND CITY – After meeting in closed door sessions with the Linn County Commission and County Counselor Jacklyn Paletta over the past several weeks, attorney Scott Nehrbass on Tuesday, Sept. 8, announced many of the terms of the county’s settlement agreement with a solar utility company.
Nehrbass, an attorney with Foulston Siefkin law firm, said that under the negotiated agreement the company, Swan Solar, will pay Linn County $16.5 million over the next 10 years, if the company agrees to pay attorney fees if the terms of the agreement are broken.
Swan Solar filed a lawsuit against the county after the commission earlier this year voted to include high-voltage transmission lines in a moratorium that already put a halt on data centers and battery storage units. Swan Solar is in the process of developing a solar utility installation on the Missouri side of the state line and plans to run solar-generated power to a substation across from the La Cygne Generating Station on 2100 Road.
Officials with Swan Solar contended that overhead electric transmission lines such as that to be constructed by Swan have long been and still are a permitted use on industrial zoned property and does not require a county building permit or approval of the Board. According to their lawsuit, the transmission line is consistent with other long existing overhead transmission lines located throughout the county the only difference is the source of the electricity being transmitted by a solar facility in Missouri.
In previous meetings, Barry Matchett from Clearway Energy working with Swan Solar, had explained that Linn County already had many transmission lines and that they were all regulated by many federal agencies. In fact, the Linn County Zoning regulations did not regulate transmission lines.
At the previous commission meeting on Aug. 31 after an executive session for client-attorney privilege, which included Nehrbass, Nehrbass stood up at the podium and said, “Commissioners, pursuant to the discussion in executive session, I need a motion to approve the proposed settlement agreement with Swan Solar subject to Swan Solar agreeing that it will pay any attorney fees incurred by the county or costs incurred by the county in enforcing the settlement agreement.”
Hightower made that motion and Johnson seconded it. The motion passed 2-to-1 with Hamilton voting against it. Hamilton is a long-time vocal opponent of the solar energy conversion system that Clearway Energy had proposed to build in Linn County.
While the vague motion on August 31 left the actual intent of the settlement elusive, it apparently had to do with the Swan Solar lawsuit against the Board of County Commissioners. Swan Solar filed a lawsuit against Linn County on June 25 because the commissioners on May 26, after finding out that Swan Solar had built a solar project in Missouri and was wanting to run 3.5 miles of transmission lines to an Evergy substation in Kansas, passed a motion for a temporary moratorium on private (non- utility) renewable energy transmission lines.
Barry Matchett with Clearway Energy, a company that originally proposed installing a solar utility in Linn County, is also involved with Swan Solar project. He met with Linn County Commissioners Alison Hamilton and Jim Johnson on July 27, (Commissioner Jason Hightower was absent) to provide them more information about the safety of the proposed transmission lines.
He restated that that Clearway Energy had offered a contribution agreement of approximately $850,000, $50,000 for each tower. Matchett also referred to the $30,000 (mentioned in a previous meeting) in personal property taxes that the county would receive annually for the area of land used by the footings of the towers.
While Matchett and another representative from Clearway, Josh Framel, had been meeting with the commissioners weekly since July 13, the $850,000 amount had not been mentioned in an open commission meeting until that time.
The commissioners split 2-to-1 on voting on the agreement.
Hamilton voted against it and refused to sign the document that would allow Swan Solar to run 3.5 miles of transmission lines to Evergy’s substation. Commissioners Jason Hightower and Jim Johnson did vote for the settlement.
In a separate interview with Hamilton on Tuesday, Sept. 8, Hamilton said she voted against the agreement because it related to solar power. Hamilton ran for the commission on an anti-solar platform and prior to being elected, she successfully campaigned for a ban on solar utility “farms” in Linn County.
She also said she was opposed because when Evergy applied for rezoning about 250 acres south of the power plant for the purpose of installing a substation, company representatives knew it would be used for transmitting solar-generated power without informing the county’s planning and zoning commission or board of county commissioners about the intended use.
That request for changing zoning from Agriculture to Light Industrial easily passed both commissions.
Apparently details of the agreement were finalized sometime since the Aug. 31 meeting because Nehrbass after another executive session with the commissioners and Paletta for attorney client privilege, came to the podium and said, “Commissioners, I would ask for a motion to approve the settlement and community benefits agreement that has been discussed with the commissioners and during executive session with Swan Solar LLC.
“As you know Swan Solar LLC has filed a lawsuit against the county and that lawsuit relates to the county’s actions, your actions as commissioners, voting for and approving a moratorium that included data centers, battery plants, Bitcoin mining facilities, as well as private utility transmission lines.
“And Swan Solar proposed to put those lines from Bates County across about a 3.5 mile section south of the Evergy plant into the plant at La Cygne. They filed a building permit related to the same and filed a lawsuit following your issuance of that moratorium.
“We have, as you know, negotiated the settlement with Swan Solar pursuant to which, that lawsuit, the claims made in that lawsuit, would be dismissed with prejudice and this settlement would become the order of the court and a consent judgement in that case.
“And that settlement and community benefits agreement with Swan Solar provides to payments to the county from Swan Solar in the total amount of $16.5 million, with $2 million to be paid at commencement of construction which is anticipated to happen later this year or by no later than December 21, 2026.
“For another $2 million payment to be paid upon the commercial operations date. That is when the Swan Solar solar farm in Bates County has produced sufficient commercial quantities of solar to be sold and then also provides for 10 annual payments of $1.25 million for a total of $12.5 million starting on Jan. 1 following the completion of the construction of the construction of the transmission lines across Linn County.
“Those are the monetary terms of the settlement. There a a host of non-monetary terms as well including that the use of these transmission lines will be limited to strictly this Bates County-based solar farm of Swan Solar. No other solar farms are going to be added to that.
“And, with that, if the commissioners have any questions, otherwise I would ask for a motion to approve this settlement.”
Commissioner Jim Johnson asked Nehrbass to talk about the default on the attorneys’ fees also if the contract is not followed.
Nehrbass answered, “Yes, the settlement agreement provides that it will be filed as a consent judgement in the action before Judge (Andrea) Purvis here in Linn County and that Judge Purvis and the Linn County District Court will continue to have continuing jurisdiction over the matter, In the event that any of these amounts are not paid by Swan Solar or not timely paid that we can following sending a written demand letter for payment, file a motion to enforce that this settlement agreement and seek a judgement for the amounts that are due and enforce that judgement.
“And in the event that we have to do that, Swan Solar would be required to pay the attorneys’ fees and costs and costs incurred in enforcing the judgement. So the county would be reimbursed for the cost of enforcing the judgement.”
Hightower made a motion to approve the settlement and community benefits agreement with Swan Solar. Johnson seconded. At this point, Hamilton voted against the motion and did not sign the settlement and agreement papers.
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