FAIRBANK – Three wind energy turbines deemed “illegal” by the courts are not coming down without a fight.
A group of companies operating the turbines just east of Fairbank have asked Fayette County District Court to reconsider a 2016 order declaring the structures were built in violation of zoning laws and must be torn down.
Mason Wind, Dante Wind 6, Venus Wind 4 and Galileo Wind have also filed a new zoning application seeking a variance from the county board of adjustment which would, if approved, effectively legalize the existing project.
Meanwhile opponents of the turbines, including the city of Fairbank and several property owners, are asking the court to find the companies and county zoning officials in contempt of court for failing to remove them already.
The flurry of legal filings last week is the latest twist in a legal battle dating back to 2015, when county zoning officials declared the turbines did not require special permit approval.
The city and group of private property owners sued, claiming the project did require a special permit. By the time Judge John Bauercamper ruled against the project in November 2016, the turbines were already spinning.
Mason Wind and the other firms unsuccessfully appealed Bauercamper’s decision, which was reaffirmed May 1 when the Iowa Supreme Court let the original ruling stand.
Company attorneys are now asking to reconsider the district court decision, calling the order to tear them down too harsh given the circumstances and noting the companies have an avenue to legalize them through a zoning process.
“Because the turbines’ owners relied in good faith on certificates of zoning compliance issued by the Fayette County zoning administrator and engaged in no wrongdoing, it would be fundamentally unfair to require the turbines be removed,” the companies said in a May 17 court filing.
“Because the turbines already exist, strictly enforcing the ordinance now would … impose an extreme penalty – in this case, the forfeiture of turbines resulting in the cost of decommissioning, the waste of the physical assets and the loss to customers of the power being generated and sold – despite the (companies) having done nothing wrong.”
But attorneys for the city of Fairbank said the companies continued building the turbines despite the pending lawsuit and failed to post a $450,000 bond to remove the structures as required by the court.
They contend the companies, along with county officials failing to enforce the original court order, should be held in contempt for disregarding the court’s authority.
The parties “have demonstrated a complete and total disregard for the role of the judiciary in analyzing, interpreting, declaring and enforcing the law,” an attorney for the city said in a May 17 court filing.
A district court judge set a June 11 hearing on the contempt issue, while the application for a county zoning variance is expected to go to the board of adjustment soon.
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