Mo. appeals court deals Aquila plant another loss

KANSAS CITY, Mo. (AP) -- A state appeals court on Tuesday again sided with residents near Peculiar in their almost 3-year-old drive to get an Aquila Inc. power plant torn down.

The Missouri Court of Appeals for the Western District upheld the decision of a Cass County Circuit Court judge, determining that the Missouri Public Service Commission exceeded its authority when it approved the plant almost a year after it had been built without local approval.

The decision effectively reinstates Judge Joseph P. Dandurand's order for Aquila to remove the $140 million plant.

Aquila spokesman Al Butkus said the company had 15 days to respond.

"We're looking at the decision and determine what our best options are," he said.

Debbie Moore, Cass County counselor, said the court's decision was "yet another legal victory for Cass County."

"From day one the county believed that our legal positions have been correct, and the courts have consistently affirmed our stance," Moore said.

The decision is the latest in the saga of the South Harper plant, opened in June 2005 as a way to provide supplemental power during hot summer months.

Despite objections from nearby residents and county officials, Kansas City-based Aquila built the plant without local zoning permits. Aquila contended it had a state-issued "certificate of need" for the plant and didn't need the county's approval.

The county sued, with Dandurand and an appeals court agreeing that the state-issued certificate didn't specifically cover the Peculiar plant.

The appeals court did say Aquila could try to get the permits after the fact from county officials -- who said they would never approve the plant -- or go back to the Public Service Commission.

The commission voted in May 2006 to approve the plant. The regulatory agency said that while the company hadn't received county zoning approval for the plant, it was in the public's interest and should be allowed.

But in its decision Tuesday upholding Dandurand, the appeals court said state law requires the commission to authorize power plants before construction begins and even the commission can't change that.

It added that while the law does allow the commission to order the construction of poles, transmission lines and other utility improvements it considers necessary to the public's interest "it defies logic to suggest that an order to build a power plant can be issued after the plant is built."

---

On the Net:

http://www.aquila.com