August 5, 2017
Iowa
Iowa
In the Supreme Court of Iowa, Fayette County
Ron Woods, John Woods, James Costello, C&W Farms and Woods Construction, Inc.
vs.
Fayette County Zoning Board Of Adjustment, Catherine Miller as Fayette County Zoning Administrator, Dante Wind 6, LLC, Galileo Wind 1 LLC, Venus Wind 4 LLC, Mason Wind LLC, Optimum Renewables LLC, and Thomas G. Rourke And Kimberly K. Rourke
On Appeal from the Iowa District Court for Fayette County
STATEMENT OF THE ISSUES
I. The District Court correctly determined that the Fayette County Zoning Board of Adjustment acted illegally when it allowed construction of wind power generation facilties in ag-zoned portions of the county as a matter of right use.
II. The District Court correctly considered additional evidence regarding wind power generation facilities when determining the board of adjustment acted illegally.
STATEMENT OF THE CASE
This case involved the District Court correctly determining that the Fayette County Zoning Board of Adjustment (herein “Board”) illegally sustained the issue of building permits allowing wind power generation facilities to be constructed as a matter of right in the ag zoning district of Fayette County.
Following the Board’s initial rejection of special use permit application by the non-government Appellants, the Zoning Administrator issued building permits as a permitted use under Section 9, subparagraph A, as a permitted use as an electrical transmission and regulating facility. Appellee’s appealed this permit being issued to the Board of Adjustment, which upheld the permit issue. An application for a writ of Certiorari was ultimately sustained by the District court declaring the permits void and an order was issued directing the Board of Adjustment to take all acts necessary to enforce the court’s decision.
Ron Woods, John Woods, James Costello, C&W Farms, and Woods Construction, Inc (herein “Woods” ) agree with the district court ruling and resists the appellant’s attempt to define the board’s action as legal, when the plain meaning of the transmission and regulating facilities do not encompass electrical power generation. Further, Woods contend that the district court was within its authority to consider additional evidence regarding wind power generation as applied in general zoning applications. …
ARGUMENT
THE BOARD INCORRECTLY CONSIDERED A MULTI-STORY WIND POWER GENERATOR AN ELECTRICAL TRANSMISSION FACILITY WHEN IT IS CLEARLY A GENERATOR OF ELECTRICITY. …
I. The District Court correctly determined that the board’s decision was unreasonable and not subject to a fair difference in opinion and as a result, illegal.
It is clear that the generation of power is a separate and distinct from the transmission of that power. …
The board acted upon inaccurate, unreasonable information when making its decision to allow the power generation turbines in the ag district as a use of right. …
The power generation turbine installation was not a farm use matter …
As generators of electricity, wind power generation turbines are not authorized in the zoning ordinance. …
II. The District Court correctly considered additional evidence regarding wind driving power generation facilities in relationship to zoning.
Background:
In 2015, Mason Wind sought permission in Fayette, Buchanan, and Black Hawk Counties for three 445-foot wind turbines. In Fayette County, Fairbank City Council members voted to oppose the project just a half mile from the city limits, and the County Board of Adjustment rejected the special permits in early 2015. Mason Wind’s rezoning request was also rejected by the Buchanan County Board of Supervisors in August 2015, so Mason Wind convinced Fayette County Zoning Administrator Catherine Miller that they did not require special permits because the zoning ordinance (dating from 1973) allowed “electric and gas transmission and regulating facilities” on agricultural land. The County Board of Adjustment confirmed Miller’s decision Oct. 20, 2015, and Mason Wind began construction a few days later.
The city of Fairbank and Woods Construction then sued in Fayette County District Court that the ruling was incorrect, asking that construction halt until the court ruled. Work on erecting the wind turbines continued after Mason Wind convinced the court that they understood the risk. Construction was completed before the trial began on August 24, 2016. Judge John Bauercamper stated: “The question is whether or not a wind turbine that produces electricity is or is not an electrical transmission and regulating facility.” He ruled on November 2, 2016, that the turbines are illegal. Mason Wind appealed to the Iowa Supreme Court on January 18, 2017 (and does not have to remove the turbines before that court rules).
(Source: The Courier)
URL to article: https://www.wind-watch.org/news/2017/08/05/regarding-appeal-to-supreme-court-of-iowa-fayette-county/