Posted by: Patricia Salkin | January 21, 2021

IA Appeals Court Upholds Board’s Authority to Grant a Conditional Use to Allow Construction of Wind Turbines

This post was authored by Matthew Loescher, Esq. 

MidAmerican Energy Company sought and was granted permission from the Zoning Board of Adjustment of Madison County, Iowa to build a wind farm with fifty-two wind turbines in Madison County. Madison County Coalition for Scenic Preservation LLC, which did business as Resident Rights Coalition of Madison County (the Coalition), was a group of individuals who owned real estate in Madison County and opposed the wind farm. The Coalition petitioned for writ of certiorari challenging the Board’s approval of the wind farm, alleging the Board’s approval violated provisions of the Madison County Zoning Ordinance and was therefore illegal. The district court annulled the Coalition’s writ, and the Coalition appealed the district court’s ruling.

 At the outset, the court noted that Section 14(E)(12) granted the Board the power to authorize a conditional use permit for “any structure or land used by public or private utility service company … for public utility purpose.” Here, MidAmerican was a public utility service company and the wind-turbine structures were to be used for public utility purpose. As such, the court upheld the district court’s interpretation that MidAmerican could have requested a special use permit under section 14(E)(12) to build the nearly 500-foot tall wind turbines without requesting a section 17(D)(1)(c) variance.

The court next noted that while the Board digressed into solving the administrator’s dilemma involving height requirements and referenced non-applicable ordinances, the expanded findings referenced the conditional use provisions of section 14 that related to public utilities. Since the district court found substantial evidence demonstrating that the Board approved the wind turbine project as an appropriate conditional use, the court did not disturb that decision.

 The Coalition lastly challenged the adequacy of the notices published and sent by the Board that needed to request a variance. Specifically, the Coalition claimed that because the notices were defective, the Board of Adjustment lacked jurisdiction to grant the applications. The court held that even assuming the Coalition could narrow this argument to one where the Board was without jurisdiction to proceed, the claim would nevertheless fail. Here, the Board had express authority to grant special or conditional use permits pursuant to Iowa Code sections 335.10 and 335.15 and could make special exceptions to requirements of the zoning ordinances. Moreover, the notices were adequate as they included a request for a special use permit, which was a conditional use, to allow the wind energy devices under the ordinance section 14(E)(12) that the district court ultimately found authorized such use. Accordingly, the court affirmed the district court’s decision to annul the writ of certiorari and uphold the Board’s authority to grant the conditional use to allow the wind turbines.

Madison County Coalition for Scenic Preservation v Zoning Board of Adjustment of Madison County, 2021 WL 21154 (IA App. 1/21/2021)

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