FAIRBANK — The Iowa Supreme Court has been asked to intervene in an ongoing dispute over three wind energy towers in Fayette County.
Attorneys for Mason Wind and Optimum Renewables turned to the state’s high court this month after a district court judge deemed three turbines in a farm field just east of Fairbank are “illegal and void” and must be removed.
As Iowa’s wind energy industry gears up for a major expansion over the next three years, this high-stakes legal battle reveals wind farms aren’t always welcome, while some county zoning rules may not be ready for the test.
Mason Wind sought permission in Fayette, Buchanan and Black Hawk counties for three 445-foot turbines in 2015 before the $11 million project was built near the Flint Hills Resources ethanol plant.
Court records show Fayette County’s zoning ordinance at the time lacked specific language for large “wind energy conversion systems,” an issue central to the ongoing lawsuit.
But the county had previously approved a 16-turbine wind farm near Hawkeye for RPM Access under a special permit process through the county’s board of adjustment. The same process was followed for Mason Wind.
The project drew heavy opposition from neighboring property owners worried about property values and environmental impacts, while Fairbank City Council members voted to oppose the project just a half mile from the city limits.
The county board of adjustment sided with the opposition and rejected the special permits in early 2015.
Mason Wind found a new site a few miles south in Buchanan County but saw its rezoning request rejected by the county Board of Supervisors in August 2015. The firm moved west into Black Hawk County a few weeks later where its special permit was rejected by the board of adjustment.
Meanwhile, attorneys for Mason Wind convinced Fayette County Zoning Administrator Catherine Miller their towers near Fairbank did not require special permits because the vintage 1973 zoning ordinance allowed “electric and gas transmission and regulating facilities” on agricultural land.
The county board of adjustment confirmed Miller’s decision Oct. 20, 2015, and Mason Wind began construction a few days later.
The city of Fairbank and a local construction company filed a lawsuit in Fayette County District Court a month later claiming the zoning ruling was incorrect and asking for construction to halt until the issue was heard by the court.
The suit was filed against the board of adjustment, Miller, the board of supervisors, several companies involved in the wind project and property owners Thomas and Kimberly Rourke.
While the court initially stopped the work, the order was lifted after Mason Wind attorneys argued in court they understood the risk of proceeding while the suit was pending.
The turbines were already built by Aug. 24, 2016, when District Court Judge John Bauercamper presided over the trial.
“The question is whether or not a wind turbine that produces electricity is or is not an electrical transmission and regulating facility,” Bauercamper said.
In his Nov. 2, 2016, ruling calling the turbines illegal and void, Bauercamper said the structures were power generators, more like a coal-burning or nuclear plant and not transmission or regulating facilities.
But he added: “The court is fully aware that wind turbines are a valuable method for producing electric power, they are becoming common place on the Iowa landscape, and they can be installed in harmony with the environment and neighbors.”
Mason Wind filed its notice of appeal to the Iowa Supreme Court on Jan. 18 and does not have to remove the turbines pending the appeal.
Meanwhile, the Fayette County Board of Supervisors has changed its zoning ordinance to avoid similar issues in the future.
The new ordinance, among other things, requires any commercial wind energy project to get approval from the Board of Supervisors; to be at least three times the tower height or 1,500 feet from any occupied building; and does not allow construction within one mile of an incorporated city without that’s city’s written permission.
WATERLOO — The wind energy industry is colliding with a mixed bag of zoning laws as it seeks to erect hundreds of new turbines across Iowa’s rural countryside.
Without a uniform state law governing location, height, setbacks and other factors, many of the state’s 99 counties have adopted individual zoning standards that will play a key role in where those turbines go.
The Courier examined how several Northeast Iowa counties regulate commercial wind energy projects after RPM Access said it would seek approval for a wind farm with up to 35 turbines in Eagle Township south of Waterloo.
While counties have a variety of rules on tower heights, setbacks, noise levels, decommissioning requirements and aesthetic issues, a key difference involves the process wind energy developers must follow to get approval.
In most counties, including Black Hawk, Bremer, Butler and Tama, an appointed volunteer board of adjustment decides whether to issue special permits for turbines.
Others, including Grundy, Buchanan and Fayette counties, require a rezoning process with final approval coming from the elected board of supervisors.
Grundy County Zoning Administrator Carie Sager said the authority question was a hot-button issue when county officials gathered in 2009 to discuss how to handle wind farms.
“The board of adjustment said, ‘We’re not paid, we’re volunteers and we don’t want to be the ones making a decision on something this big,’” Sager said. “And they were very controversial here; they were not easy decisions.”
The Grundy County Planning and Zoning Board unanimously recommended against two wind projects in the western part of the county. But the Board of Supervisors still voted to approve the zoning change allowing the 43-turbine Wellsburg Wind Project completed in 2014 and a 45-turbine Ivester Wind Project yet to be constructed.
Black Hawk County’s ordinance approved by the Board of Supervisors in July 2011 routes requests through the planning and zoning board for a recommendation and then to the board of adjustment for a special permit.
It’s only been tested once, when the board of adjustment rejected a request from Mason Wind and Optimum Renewables for three turbines in the far northeastern corner of the county.
Adam Van Dike, an attorney for Mason Wind, said the county’s requirements were high.
“It’s a very restrictive ordinance,” Van Dike said at the time. “Frankly, it’s the most restrictive we’ve seen in the state.”
Black Hawk County’s zoning ordinance states it was designed to “promote the effective and efficient use of the county’s wind energy resource” while providing “reasonable restrictions, which will preserve the public health, safety and welfare.”
The ordinance acknowledges wind energy facilities represent “significant potential aesthetic impacts” and may present risks to property values of adjoining property owners if towers are not properly sited.
While most counties require wind turbine setbacks to be at least 1.1 times the tower height — measured from the ground to the blade at its highest point — from the property lines, Black Hawk County requires a setback of 1.5 times the tower height.
The ordinance limits noise from the turbines to 60 dBA at the property lines, while developers must take reasonable steps to prevent shadow flicker and ice shedding from affecting off-site residences.
Black Hawk County also requires a certificate of insurance with minimum $2 million liability coverage and an irrevocable letter of credit, bond or cash escrow held in trust in favor of the county to recover costs associated with removal if the turbines stop functioning.
Significant opposition to the RPM Access wind farm south of Waterloo has developed as some property owners in the project area are voicing concerns about property values, the impact on birds and wildlife, protection of prime farmland and aesthetics.
A group of those residents showed up at the January meetings of both the county planning and zoning and adjustment boards, although neither panel is allowed to discuss or make decisions on the matter until an actual application is filed.
“I just can’t imagine looking out my window at 39 blinking lights every night,” resident Harold Youngblut told the board of adjustment last week.
But county zoning officials said their office also is receiving emails and letters of support for the project based on support for clean, renewable energy and perceived economic benefits.
The RPM Access project may not be the only wind farm to seek approval in Black Hawk and surrounding counties.
MidAmerican Energy Co. is looking for sites to erect up to 1,000 new turbines generating 2,000 megawatts of electricity in Iowa over the next three years through its Wind XI project approved in August by the Iowa Utilities Board.
While Wind XI’s approval was not site-specific, IUB spokesman Don Tormey said MidAmerican has committed to obtain all necessary county and local zoning and building approvals and permits for each site.
WATERLOO — City Councilman Jerome Amos Jr. has accused two colleagues of making racially insensitive remarks at weekly meetings.
Amos, the city’s only African-American council member, said councilmen Steve Schmitt and Tom Lind have made several comments over the past year he found inappropriate.
“I don’t want controversy on this council, and I’m not out to cause anybody any problems, but somewhere down the line this needs to stop,” Amos said. “These things should not be said.”
Amos, who sits between Schmitt and Lind at council meetings, said Schmitt had called the seating arrangment “a reverse Oreo cookie” and also said he looked like a “Cadillac kind of guy,” which he took to have racial undertones.
He said Lind made a reference to “wearing a hood” at Monday’s meeting, the day after Mayor Quentin Hart had accused Lind in an email exchange of making “racist, derogatory, partisan” remarks.
Amos broke his silence about the matter after the email exchange became public. He had spoken about his concerns with Hart, the city’s first African-American mayor, and believed it played a role in Hart’s sharp reaction to Lind.
Lind had criticized the mayor for appointing a part-time communications director without council approval, adding, “You work for us. Obama (yesterday) is gone.”
Hart responded he would “no longer accept the disrespect, slander, threats, being called out of my name, or your racist partisan Obama comments from you or anyone else on this email.”
Lind said the Obama reference referred to the former president’s penchant for approving executive orders and bypassing Congress and objected to Hart demeaning his character.
Lind declined Friday to discuss Amos’ comments.
Schmitt, however, said he was disheartened by what he heard from Amos, who he’s known for 30 years and who he encouraged to run for council “as I thought he was a well-intentioned individual who would be above such petty, partisan political comments.”
Schmitt said he’d noticed a nice Cadillac in the council parking lot one evening and, since he knew what other members drove, he assumed it was Amos’ and congratulated him on the car.
“He seemed caught off guard, and said it wasn’t his and why would I think it was?” he said. “I assumed he was joking. Council member (Ron) Welper overheard us and said it was his wife’s car. I couldn’t understand why Jerome disliked Sharon Welper’s car, as I thought it was pretty nice.”
Schmitt said he does not remember the “Oreo” comment.
“If you watch Jerome, Tom and I before meetings, we are usually joking and laughing and I have never noticed Jerome take offense at anything that was said,” Schmitt said. “I usually make some comment along the lines of ‘the liberal sitting between the two conservatives’ and then reference that I am sitting between Ron and Jerome so I am the conservative sitting between the two liberals.”
Schmitt said he did support Lind’s right to question the hiring of a communications director, agreeing Hart should have sought council approval.
“Rather than having a calm, mature and adult conversation about if the mayor will follow the rules, and how this hiring and others will impact the budget, the mayor reacts by calling Councilman Lind names … threatens Councilman Lind on any possible future questioning and, finally, unleashes a list of verbs and adverbs not based on fact, just his opinion.”
City Attorney Dave Zellhoefer and City Clerk Kelley Felchle said Hart did follow the proper process and had authority to hire a part-time position without seeking council approval. Under Waterloo’s form of government, the mayor serves as the city’s administrator and has broad authority on many personnel issues.
WATERLOO — The Waterloo fire department’s plan to increase training last year hit a snag when state officials allegedly left tests ungraded.
Exams for more than 70 members of Waterloo Fire Rescue’s firefighters went unscored for more than a month before the materials were found in a drawer at the Iowa Fire Service Training Bureau at the Iowa State University in Ames. Now, almost a year since the testing, the department is still waiting for certificates to show firefighters passed the course.
The grading lag appears to have been part of a larger problem with the state training facility discovered last spring.
In April, two state bureau employees were placed on administrative leave when questions arose surrounding irregularities in the scoring of firefighter certifications, and the bureau was in jeopardy of losing its status with accreditation organizations.
Last week, the Iowa Division of Criminal Investigation announced criminal charges for John McPhee, who had been the bureau’s certification and accreditation coordinator. McPhee —- who came to Waterloo last year to administer testing for Firefighter II certification for the city’s firefighters — is charged with felonious misconduct in office and misdemeanor tampering with records.
An investigation determined between February 2012 to February 2016, some 2,278 certifications were issued improperly. The Fire Service Training Bureau is now offering free training courses and test retakes for people whose tests were improperly scored.
State officials point out the certification and accreditation programs are voluntary and not required by the state.
Waterloo firefighters are expected to complete a Firefighter I curriculum within the first year of being hired. In 2016, Chief Pat Treloar set a goal to bring all fire fighting staff — from tail boarders to battalion chiefs —- up to Firefighter II certification.
Although the Firefighter II course, which includes more testing on hazardous materials and in-depth material on tactics and operations, isn’t a state requirement, Treloar said the higher certification would provide additional safety for the department’s staff.
“I thought it was a good way to take training up a notch,” Treloar said.
Waterloo’s firefighters took the course — which included three days of hands-on activities and homework assignments — in March. The department spent $3,600, which is about half of its training budget, according correspondence between city and state officials.
Treloar said the exams were supposed to be graded immediately, but they weren’t.
According to a city review of the matter, at the end of the March testing, McPhee took the ungraded tests and verbally told a Waterloo fire lieutenant everyone had passed and certifications would be coming within 10 days. The lieutenant thought this was odd because at that point McPhee hadn’t received the homework that accompanied the exams, the report states.
The certificates weren’t forthcoming, and after McPhee was been placed on leave, the ungraded Waterloo exams were discovered in early May 2016. Treloar said he was told state training officials then scored the tests and informed him all of the Waterloo firefighters passed the course.
Still, as of last week Waterloo Fire Rescue hadn’t received certificates indicating they had passed the Firefighter II testing.