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Mathis v. Palo Alto County Board of Supervisors

Supreme Court of Iowa

May 3, 2019

BERTHA MATHIS, STEPHEN MATHIS, TILLFORD EGLAND, THOMAS STILLMAN, LOIS STILLMAN, MICHAEL REDING, and SUZANNE REDING, Appellants,
v.
PALO ALTO COUNTY BOARD OF SUPERVISORS, Appellee, and PALO ALTO WIND ENERGY, L.L.C. and MIDAMERICAN ENERGY COMPANY, Appellees.

          Appeal from the Iowa District Court for Palo Alto County, Nancy L. Whittenburg, Judge.

         Landowners appeal a district court order granting summary judgment and sustaining the actions of a county board of supervisors adopting a wind energy ordinance and approving a wind energy project. AFFIRMED.

          Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, and John M. Murray of Murray and Murray, Storm Lake, for appellants.

          Sheila K. Tipton, Haley R. Van Loon, and Adam C. Van Dike of Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, PLC, Des

          Moines, and Peter C. Hart, Palo Alto County Attorney, for appellee Palo Alto County Board of Supervisors.

          Bret A. Dublinske and Brant M. Leonard, of Fredrikson & Byron, P.A., Des Moines, for appellees Palo Alto Wind Energy, L.L.C. and MidAmerican Energy Company.

          MANSFIELD, JUSTICE

         In this case we are called upon to review the decisions of a county board of supervisors approving a wind energy ordinance and a specific wind energy project. Although the challengers raise a number of well-presented arguments, in the end we conclude they were matters for the board of supervisors-not the courts-to resolve. We therefore affirm the judgment of the district court granting summary judgment and dismissing the plaintiffs' claims.

         I. Background Facts and Proceedings.

         In late July 2015, the development manager for a renewable energy company asked Joseph Neary, the Palo Alto County planning and zoning administrator, about Palo Alto County's zoning ordinances relating to wind energy turbines. Approximately four months later, Mark Zaccone of another company, Invenergy, L.L.C., contacted Neary with the same inquiry. Invenergy is the parent company of Palo Alto Wind Energy, L.L.C. (PAWE). Invenergy was interested in developing a 340-megawatt, 170-turbine wind energy project in Palo Alto County that would be owned and operated by MidAmerican Energy Company (MidAmerican).

         At that time, there were only a few wind turbines in Palo Alto County. The existing ordinance, which had been modified most recently in 2003, contained only a single paragraph devoted to wind turbines. The members of the Palo Alto County Planning and Zoning Commission believed that a more detailed ordinance was needed.

         During the first half of 2016, County Attorney Peter Hart worked on drafting a new zoning ordinance, modeling his efforts on ordinances from other Iowa counties. Invenergy personnel interacted with Hart and offered suggestions during the drafting process. However, Invenergy and MidAmerican were not satisfied with the final draft that emerged from the Commission meeting on August 11. On August 26, they sent strongly worded written comments to each member of the Palo Alto County Board of Supervisors, explaining that "nearly all of these revisions are necessary in order to establish a wind ordinance that will actually allow a wind project to be developed."

         Among other things, Invenergy and MidAmerican urged the Board to reconsider the Commission's proposed 2640-foot setback for wind turbines from permanent residential dwellings. They said such a setback "would make developing a Wind Energy Conversion System in the County practically impossible." They pointed out that other counties have generally implemented a 1000- to 1320-foot setback, and a setback greater than 1500 feet "would make it virtually impossible for Invenergy to move forward with the proposed project and may very well deter other wind development within the County." Invenergy and MidAmerican also proposed that the Board modify a proposed 2640-foot setback from cemeteries in favor of a 1000-foot setback.

         In addition, Invenergy and MidAmerican urged the Board to remove a provision from the ordinance that prohibited the occurrence of any shadow flicker on an existing residential structure, explaining that shadow flicker (i.e., the shadows cast by a rotating turbine within a residence) "is an unavoidable consequence of having an operational Wind Energy Conversion System in the County." Invenergy and MidAmerican proposed instead a provision that

no non-participating Permanent Residential Dwelling will experience more than 30 hours per year of shadow flicker under planned operating conditions. If an owner of a non-participating Permanent Residential Dwelling experiences more than 50 hours of shadow flicker per year under . . . normal operating conditions, then the Owner/Developer shall be obligated to mitigate such shadow flicker to comply with the terms of this ordinance.

Other modifications were also sought. In conclusion, their letter made it clear that without a number of these requested changes, the 340-megawatt wind project would not go forward.

         In September, the Board approved a modified wind energy ordinance that incorporated a number of Invenergy and MidAmerican's demands, including a minimum setback of 1500 feet from residences. However, the Board did not adopt everything Invenergy and MidAmerican had requested. For shadow flicker, the ordinance imposed a mitigation obligation whenever thirty hours per year (not fifty) of shadow flicker occurred. The ordinance also established a 1500-foot setback (not 1000) from cemeteries.

         Three public readings of the ordinance occurred on September 13, September 20, and September 27. At the final public reading on September 27, the Board unanimously passed and approved the "Wind Energy Conversion Systems Ordinance" (Ordinance) for Palo Alto County.

         Nearly one year later, on August 31, 2017, Invenergy and its subsidiary PAWE submitted an application for site plan review and approval. The application requested approval for the 340-megawatt wind energy project, including 199 potential turbine locations.

         The Board held an informational meeting on the application on September 21 and a public hearing on October 5. The project was discussed as well at other public Board meetings in September and October. The Board also received correspondence from the Iowa Department of Natural Resources and the state archaeologist who made recommendations for reducing or avoiding environmental or cultural harms the project could cause. In addition, the Board received a report from acoustician Richard James of E-Coustic ...


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