Posted by: Patricia Salkin | June 29, 2019

IA Supreme Court Holds Wind-Energy Ordinance Was Not Rendered Illegal by the Fact that Renewable Energy Companies Provided Input on the Ordinance

This post was authored by Matthew Loeser, Esq.

Mark Zaccone of Invenergy, L.L.C., contacted Joseph Neary, the Palo Alto County planning and zoning administrator, regarding Palo Alto County’s zoning ordinances relating to wind energy turbines due to its interest developing a 340-megawatt, 170-turbine wind energy project in Palo Alto County that would be owned and operated by MidAmerican Energy Company. In 2016, County Attorney Peter Hart began drafting a new zoning ordinance, modeling his efforts on ordinances from other Iowa counties. Invenergy personnel offered Hart suggestions during the drafting process. During this process, Invenergy and MidAmerican urged the Board to reconsider the Commission’s proposed 2,640 foot setback for wind turbines from permanent residential dwellings, as well as to remove a provision from the ordinance that prohibited the occurrence of any shadow flicker on an existing residential structure.

The Board ultimately approved a modified wind energy ordinance that incorporated a number of Invenergy and MidAmerican’s demands. Roughly one year later, Invenergy and its subsidiary PAWE submitted an application for site plan review, requesting approval for the 340-megawatt wind energy project, including 199 potential turbine locations. The Board granted conditional approval to PAWE’s application, and plaintiffs filed a petition for declaratory and injunctive relief and for a writ of certiorari against the Board in the Iowa District Court. PAWE and MidAmerican were granted leave to intervene as defendants. The district court entered an order sustaining defendants’ motion for summary judgment, and the plaintiffs appealed.

On appeal, plaintiffs first argued that Invenergy and MidAmerican allegedly wrote the ordinance, thus rendering it illegal. The record indicated, however, that the ordinance was drafted primarily by County Attorney Hart. While, Invenergy and MidAmerican had input on the ordinance, the court found the mere fact that an ordinance incorporates one or more requests from a private party did not make the ordinance unlawful. The court further noted that lobbying the government is every citizen’s constitutional right, and both the plaintiffs and the intervenors were simply exercising that right here.

The plaintiffs next contended that the Board’s approval of the wind energy project violated the terms of the Ordinance and was arbitrary and capricious. Specifically, plaintiffs argued approval should not have been granted because PAWE and Invenergy, which submitted the request for approval, were not the “Owner/Developer” of the project. The plaintiffs further claimed that PAWE and Invenergy did not meet the requirements of the section 3(e) definition, as PAWE intended to transfer ownership of the project to MidAmerican and thus never intended to “operate” it. The court rejected this contention because the Ordinance permitted the initial owner of the wind project to transfer ownership to another entity with the consent of the Board. Additionally, nothing limited the time period when this transfer may occur, so long as the Board consented.

Next, plaintiffs claimed that the Board acted arbitrarily and capriciously in disregarding the recommendations of the DNR and the state archaeologist. The record reflects that the Board reviewed these recommendations, but elected not to follow them. One supervisor testified that “these were recommendations that we looked at” but they were “just too stringent on some of this.” Another supervisor explained that the Board talked to the County’s own conservation director about environmental issues. As such, the Board did not act arbitrarily and capriciously in disregarding the recommendations of the DNR and the state archaeologist.

The court next noted that the report cited by plaintiffs from E-Coustic Solutions did not make an independent prediction of noise levels, but simply reanalyzed the work of PAWE and Invenergy’s expert by pointing out that wind turbines can have noise levels fluctuating by plus or minus five decibels. Thus, according to this expert, a projected noise level of no more than forty-five to fifty decibels could result in some instances where noise actually exceeds fifty decibels. The Board members testified that they relied on the fact that the Ordinance imposed a maximum. They reasoned that if PAWE and Invenergy’s predictions were off, they would still be legally obligated to reduce the noise. Accordingly, the court affirmed the judgment of the district court.

Mathis v. Palo Alto County Board of Supervisors, 927 N.W.2d 191 (IA 5/3/2019)

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