The Fayette County Board of Adjustment and its administrator acted illegally when they allowed a wind energy company to build three industrial scale turbines in an agricultural zone outside of Fairbank.
That’s what a Fayette County judge ruled after reviewing the actions of the board and its zoning administrator, Catherine Miller, in a matter that pitted a handful of property owners and the City of Fairbank against an umbrella wind energy company and its partners, as well as the family that agreed to lease the company an easement on their property so they could build turbines.
In a Nov. 2 decision, District Court Judge John J. Bauercamper agreed with the petitioners Ron Woods, John Woods, James Costello, C & W Farms, Woods construction and the City of Fairbank and declared the actions of the board and the administrator void.
In this case, Thomas and Kimberly Rourke granted easements to permit Dante Wind 6, LLC., Galileo Wind 1, LLC., Venus WInd 4, LLC,, Mason Wind LLC., and Optimum Renewables to construct and operate turbines on their land.
Optimum Renewables applied for a special permit multiple times on its own behalf and on its partners,’ but the zoning administrator and the board denied them. Other wind operators, who also applied for permits, received mixed signals as some of the permits were denied and others not, according to the court decision.
The wind companies maintained they had a right to build and did not need a special permit for the turbines as that language of the 1973 zoning ordinance, which does not specifically mention wind turbines, allowed the building of the turbines.
The zoning administrator, relying on a legal opinion by a third party, eventually granted permission for the construction, and denied the appeal of the petitioners, effectively greenlighting the construction.
As Judge Bauercamper saw it, the issue in this case was whether wind turbines that produce electricity are covered under “electrical transmission and regulating facility,” which are specifically mentioned in the ordinance.
In a nutshell, the issue boiled down to whether the wind turbines are transmission or generation units.
In his decision, the judge likened wind turbines to “fossil fuel turbines and water powered turbines traditionally used to generate electricity.
“Certainly a nuclear power plant would not be considered an electrical transmission facility, and a proposal to build one in an agricultural area as a matter of right would be even more controversial,” the judge said.
The judge said that the ordinance provides the wind companies the option to apply for a special use permit, but as part of the permitting process, the public is allowed to give input in a hearing process.
In reaching the decision, the court reviewed the zoning ordinance at an Aug. 22 hearing, and over the objections of the defendants listened to the expert testimony of Jesse Richardson, a zoning and land use attorney.
Last October, the plaintiffs asked the court to put on hold the project until the legal process runs its course, and the court agreed initially.
But the wind company objected, saying they would take the risk of building the operation while the matter was pending, and the court gave them a green light.
The district court’s ruling is now subject to an appeal to the Iowa Supreme Court.
“One of the arguments of the defendants was that the ordinance allows electrical transmission lines and therefore, since the turbines create electricity and transmit it, they are allowed without a special permit,” says Pat Dillon, who represented Woods.
Had a special permit been required, the county would have had to hold a public hearing, like it did with the wind farm established near Hawkeye in recent years, and similar to the ones held in Black Hawk and Buchanan counties when they considered similar projects.
“We are happy the court agreed with our plain reading of the Zoning Ordinance,” said Dillon. “Rules we have to follow should be clear and given ordinary meaning and not be subject to twisting to meet special needs. We look forward to Fayette County’s continued well thought out growth balancing ag and rural living concerns through adopting ordinances that reflect the desires of the community for land use.”
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