BERTHA MATHIS, STEPHEN MATHIS, TILLFORD EGLAND, THOMAS STILLMAN, LOIS STILLMAN, MICHAEL REDING, and SUZANNE REDING, Appellants,
PALO ALTO COUNTY BOARD OF SUPERVISORS, Appellee, and PALO ALTO WIND ENERGY, L.L.C. and MIDAMERICAN ENERGY COMPANY, Appellees.
from the Iowa District Court for Palo Alto County, Nancy L.
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
Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar
Rapids, and John M. Murray of Murray and Murray, Storm Lake,
K. Tipton, Haley R. Van Loon, and Adam C. Van Dike of Brown,
Winick, Graves, Gross, Baskerville & Schoenebaum, PLC,
Moines, and Peter C. Hart, Palo Alto County Attorney, for
appellee Palo Alto County Board of Supervisors.
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.
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
Background Facts and Proceedings.
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
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.
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."
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.
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.
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.
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.
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
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 ...