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Page County Attorney outlines factors for any potential wind turbine ordinance changes

(Clarinda) – Page County’s Attorney is weighing in on any potential changes to the county’s wind turbine ordinance.

At the Page County Board of Supervisors meeting last week, County Attorney Carl Sonksen was asked by members of the board whether he thinks the board should re-visit the county’s wind production ordinance from a legal standpoint. Sonksen says, legally, the board can change any ordinance that they would like.

“The question was as to whether or not the board can or should re-address or maybe reconsider the existing ordinance, based upon there’s a group of people who have issues with the setback requirements within that ordinance,” said Sonksen. “Of course, if there’s enough members of the Board of Supervisors that want to re-address that, they certainly can. Any of the county’s ordinances can be amended at any time.”

The questions came as a group of citizens continues to push for the county to hold additional public meetings in regard to the ordinance, which was approved last winter. Sonksen says the board would have to consider what impact that would have on existing contracts in the county.

“I think that the factors that need to be considered are how that affects any existing contracts, and individuals and companies have relied upon the ordinance as it exists right now in either letting contracts or making decisions to engage in those,” said Sonksen. “That’s one of the issues that the board would need to consider.”

Sonksen says any attempt to retroactively modify the ordinance and change existing contracts between landowners and wind energy companies could prove problematic for the county.

“I don’t know to what extent individuals have entered into contracts within Page County to have turbines placed on property,” said Sonksen. “I think there’s two questions to address. One is for the companies that relied on the ordinance in putting together some sort of plan to have a number of these turbines placed in the county, as well as the individuals who may have contracted with them for that. I don’t know that the board would be able to retroactively change that. That could be problematic.”

As for any future contracts, Sonksen says changes to setback regulations could halt wind energy production in the county altogether.

“Going forward, if they change the ordinance and change the setbacks, then people who would enter into contracts with the company building these would simply have different setbacks then,” said Sonksen. “The company may have issues with that as far as how that affects their plan for whatever wind energy project they have going. My understanding is that they have probably relied on the existing ordinance in coming up with this energy plan.”

Sonksen was also ask by the board about any current cases in the state involving the same type of issue. Sonksen says the State Supreme Court has affirmed that setback regulations are for County Supervisors to decide and not the courts.

“The District Court granted a summary judgment dismissing the plaintiff’s claims,” said Sonksen. “The plaintiffs were individuals within Palo Alto County who had issues with the setback and how the ordinances were drafted and other issues there. The District Court granted a summary judgment dismissing their claim against the Palo Alto County Board of Supervisors. They appealed that and it got kicked up to the Iowa Supreme Court. The Iowa Supreme Court affirmed the judgment of the District Court, basically saying that,’In the end, we conclude that the matters are for the Board of Supervisors and not the courts to resolve.'”

The current ordinance in Page County requires a turbine to be 1,500 feet from a non-participating landowner’s home. A group of citizens in the county has pushed for that setback to measured from the property line, instead of the house. In January, the supervisors opted to leave the setbacks as they are currently. That decision followed two public meetings on the issue in December.