Appeals court affirms tearing down turbines; Court case prompts addition of new wind turbine ordinance 

A zoning administrator acted illegally when she granted applications to a company to build turbines on agricultural land north and east of Fairbank.

That’s what the Iowa Court of Appeals said in a Feb. 21 ruling.

The Fayette County zoning administrator and the county attorney on whose legal advice she acted, erred when issuing a permit to the company that built turbines, the court concluded.

Optimum, the turbine company, was granted easements by Thomas and Kimberly Rourke to build the three turbines.

The board of adjustment denied the company’s application for a special use permit, but the company countered they didn’t need a permit because they were nothing more than an electrical transmitting facility, which are authorized under the zoning rules.

The Decorah-based attorney who represented the county, James Burns, of Miller, Pearson, Gloe, Burns & Parrish, agreed with Optimum, greenlighting the project.

The City of Fairbank, represented by David Hosack, of Roberts, Stevens and Prendergast of Waterloo, along with several residents, Ron Woods, John Woods, and James Costello, as well as their businesses, C&W Farms and Woods Construction, who were represented by Pat Dillon, of Dillon Law, of Sumner, argued that the construction of the turbines would diminish the value of the neighboring land and would interfere with their use and enjoyment of their own properties.

Optimum was represented by Alexander Johnson of Winick, Graves, Gross, Baskerville and Schoenebaum of Des Moines.

The Iowa Environmental Council, which did not take part in the litigation, submitted an opinion siding with the turbine company.

In district court, Judge John Bauercamper determined the approval of the applications illegal, and directed the zoning administrator and the board of adjustment to comply with the law and remove the illegally erected structures.

Optimum and the board appealed, arguing the judge erred because he didn’t review if the board’s decision was supported by additional evidence and improperly considered other evidence.

At the court of appeals, Judge Anuradha Vaitheswaran authored the court’s opinion, which was also signed by her colleagues, Judge David Danilson and Thomas Bower.

The court said that the company failed to prove that wind turbines fit under the definition of electrical transmission facilities.

Reflecting on the appeals court’s decision, Attorney Pat Dillon said counties should be crafting their own ordinances regarding wind turbines.

“Iowa counties should be proactive in developing ordinances for wind turbines in order to avoid such issues,” Dillon told the Oelwein Daily Register. “Part of the problem is that we are using a 1970s ordinance to deal with 2015 applications.”

The ordinance in Fayette County has since been changed.

“We’ve tried to change our ordinance in 2010 with our Council of Governments and they had a big turnover and we never got it done,” Miller, the Fayette County zoning administrator, said. “We have a farm at Hawkeye with 15 turbines that was built in 2012. We’ve processed these towers (in Fairbank) like we have any tower as a conditional use, including telecommunication towers. We’ve had numerous public hearings about these towers to be constructed at a few different locations, and we felt we were in full compliance with the law.”

Since the case went to court, and as a result of it, on July 18, 2016, the Fayette County Board of Supervisors approved a separate ordinance regulating the placement of commercial wind energy conversion systems.

Lawyers for Optimum did not return calls to the newspaper seeking comment.