WEST UNION – Owners of three wind energy turbines near Fairbank were back in court this week fighting a court order to tear them down.
Attorneys for the wind farm asked Judge John Bauercamper on Wednesday to put a hold on his previous order requiring the turbines to be removed by Dec. 9.
Mason Wind, Dante Wind 6, Galileo Wind 1 and Venus Wind 4 are appealing a decision by the Fayette County Board of Adjustment to deny a variance that would have legalized their towers.
Kristy Rogers, an attorney for the wind companies, said they should be given a “meaningful opportunity” to pursue that appeal without having to remove the structures. She said the companies were willing to post a bond to cover removal costs pending the outcome of the zoning appeal.
While county zoning officials opposed the delay in earlier court filings, attorneys representing the Board of Adjustment did not appear at Wednesday’s hearing in Fayette County District Court.
The wind towers built in 2015 just east of the Fairbank city limits drew heavy opposition from housing developers and homeowners who believed they would be detrimental their quality of life and the town’s growth.
The city and housing developers filed a lawsuit claiming the county issued construction permits for the turbines without following its zoning ordinance. Bauercamper sided with the city in November 2016, a decision later upheld by the Iowa Supreme Court.
Bauercamper found the wind companies in contempt of court earlier this year and ordered the turbines to cease energy production by July 2 and be removed at the turbine developers’ cost by Dec. 9. The turbines have stopped spinning.
The wind companies sought a variance to the zoning ordinance, which would have allowed the turbines to stay instead of being removed, but that request was denied June 12 by the county Board of Adjustment.
The companies then filed legal action claiming the Board of Adjustment’s decision was flawed. No hearing date has been set for that case.
In a related hearing Wednesday, the city of Fairbank asked Bauercamper to include Optimum Renewables in the contempt of court order that includes the four wind companies. Optimum was the company that secured leases, interconnect agreements and government approvals for the project under a contract with the wind companies.
David Hellstern, an attorney for Optimum, said the company should not be held in contempt of court because it has “no management, no ownership, no control” over the wind turbines, and has no ability to force the wind companies to comply with the court’s removal order.
David Hosack, an attorney for the city, countered that Optimum has participated in the legal proceedings past the date it claim to have ceded control of the project to the wind companies.
“They demonstrated the ability to prolong the harm the city of Fairbank has suffered,” Hosack said.